People v. Mallo

• Court: Appellate Court of Illinois
• Decided: June 22, 2026
• Docket: 2-25-0399
• Status: Unpublished

Opinion

2026 IL App (2d) 250399-U No. 2-25-0399 Order filed June 22, 2026

NOTICE: This order was filed under Illinois Supreme Court Rule 23(b) and is not precedential except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

MARK S. MALLO, Defendant-Appellant.

Appeal from the Circuit Court of De Kalb County. Honorable Stephanie P. Klein, Judge, Presiding. No. 24-DT-13

JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice Kennedy and Justice Jorgensen concurred in the judgment.

ORDER

¶1 Held: The State proved defendant guilty beyond a reasonable doubt of driving under the influence and improper lane usage. The trial court did not err in denying defendant’s motion to suppress.

¶2 Following a bench trial, defendant, Mark Mallo, was found guilty of driving under the

influence (625 ILCS 5/11-501(a)(2) (West 2024)) and improper lane usage (id. § 11-709(a)). On

appeal, defendant argues that the trial court erred in denying his pretrial motion to suppress and

that the evidence was not sufficient to prove him guilty beyond a reasonable doubt. We affirm.

¶3 I. BACKGROUND

¶4 On January 20, 2024, defendant was charged by traffic complaint with the offenses of

which he was convicted. Prior to trial, defendant filed a motion to quash arrest and suppress evidence, arguing that his detention and arrest were not supported by reasonable suspicion or

probable cause.

¶5 On March 14, 2025, the trial court held a hearing on defendant’s motion. Ryan Loyd

testified that, on January 20, 2024, he was employed as a De Kalb County sheriff’s deputy. At

1:37 a.m., he was dispatched to the intersection of Cherry Valley and Kingston Roads due to a

truck in a ditch. He was driving a marked squad car. Temperatures and wind chills were below

zero and, although the roads were clear, packed ice and snow remained on the shoulders and in the

ditches. When Loyd arrived, another deputy, Ryan Fox, was already on the scene and was running

defendant’s driver’s license information. Defendant was standing outside the vehicle on the

passenger’s side. Although Loyd did not specifically ask whether defendant was the driver, he

asked what had happened, and defendant stated that he lost control and went into the ditch. Loyd

took defendant’s statement as an admission that defendant had been driving. It appeared there had

been attempts to remove the vehicle from the ditch. Defendant was wearing blue jeans, brown

leather dress shoes, and a button-up shirt with a quarter-zip pullover. His jeans were wet and

frozen from the knee down, his shoes were wet, and he was not wearing a hat or gloves. Defendant

mentioned that he was cold.

¶6 Loyd asked defendant to perform some field sobriety tests because he detected an odor of

alcohol and believed defendant’s speech was slurred. Loyd was wearing a body camera that

recorded audio and video. He first administered the horizontal gaze nystagmus (HGN) test

according to National Highway Traffic Safety Administration (NHTSA) standards. Defendant

walked about 30 feet to the front of Loyd’s patrol car without difficulty, and the test took a couple

of minutes to complete. Loyd then asked defendant to perform a walk-and-turn test but offered

him an opportunity to first sit in the patrol car and warm up, which defendant accepted. Defendant

-2- was not handcuffed, Loyd told defendant he was not under arrest, and Loyd believed the squad-

car door was not latched, although defendant was not free to leave. Loyd could not remember

whether defendant attempted additional field sobriety tests at the scene but recalled that defendant

agreed to accompany him to the Kingston police department, about six minutes away, to perform

further testing. Loyd never informed defendant that he could refuse the tests. Before additional

testing, defendant stated that he could not feel his toes, and Loyd allowed him to warm his feet

using HotHands packets. Defendant then completed the nine-step walk-and-turn test and the one-

leg stand test, which Loyd scored according to NHTSA standards. Defendant refused a portable

breath test. After that, which was about 3 a.m., Loyd arrested defendant. Loyd testified that he

had conducted about 200 DUI investigations during his career. Although transporting a subject to

a police station for field sobriety testing was not typical, Loyd testified that it was not uncommon

under the weather conditions present that night.

¶7 On cross-examination, Loyd acknowledged that he was retired, after serving 25 years with

the sheriff’s office. During that time, he received training regarding the indicia of intoxication.

He testified that there was a substantial amount of snow along the roadside on the day of the

incident. Although he did not observe anyone attempting to remove the vehicle from the ditch, he

saw a ratchet strap attached to the rear of the truck. Defendant was friendly, conversational, polite,

and responsive. Defendant told Loyd that he was driving home from an office Christmas party

and that he had been drinking. Defendant was unable to identify his location. Loyd testified that

he had made multiple DUI arrests and observed many individuals under the influence at varying

levels of intoxication. Based on his experience, defendant appeared to have been drinking, and

Loyd would not have allowed him to drive away. Defendant willingly accompanied Loyd to the

Kingston police department, and Loyd did not force him into the squad car. Once there, Loyd

-3- allowed defendant additional time to warm up because he wanted defendant to perform as well as

possible on the field sobriety tests. After defendant completed the tests, Loyd concluded, based

on the totality of his observations, that defendant was under the influence and placed him under

arrest. Loyd identified defendant in court.

¶8 On redirect examination, Loyd testified that, when speaking with defendant at the scene,

defendant had a flushed complexion and red, watery, bloodshot, dilated eyes. Based on those

observations, Loyd believed defendant was under some level of influence. Loyd acknowledged

that, after making those observations, he continued to detain defendant for approximately 45

minutes before arresting him and that defendant was not free to leave during that period. On

recross-examination, Loyd explained that approximately one-third to one-half of the detention

period prior to arrest was spent allowing defendant to warm up.

¶9 Thereafter, the parties stipulated to the foundation for Defense Exhibit 1, the video from

Loyd’s body-worn camera, and it was admitted into evidence. The video was played in court, and

the defense rested. The State then recalled Loyd, who testified that he made numerous

accommodations to allow defendant to warm up before performing the field sobriety tests at the

police station because he wanted defendant to perform as well as possible.

¶ 10 A review of the video shows that, when Loyd first arrived, the truck was situated in a

mound of snow, with the highest accumulation adjacent to the driver’s side door. Defendant was

standing behind the truck handing Fox his driver’s license. Fox gave the driver’s license to Loyd,

who placed it in his squad car. Loyd then approached defendant, who was standing on the

passenger side of the truck. During the initial encounter, Loyd asked defendant where he was

coming from. Defendant responded, “I honestly I don’t even know, I was trying to get west, trying

to get back to the highway, like trying to take the best route, and it didn’t work out.” Defendant

-4- stated that he was driving from Genoa to his home in Loves Park, and he was trying to get back to

Route 23. Defendant acknowledged that he was well west of Route 23. When Loyd asked

defendant if he knew where he was, defendant stated he was between Elgin and Rockford.

Defendant stated that he had been drinking. He believed it was about 10 p.m. and that his last

drink was about two hours earlier. Defendant then stated that he had about four drinks, and was

coming home from a company Christmas party in Addison. At about the time the HGN test was

administered, defendant stated that he was nervous and probably drank more than he should have.

When defendant entered the squad car to warm up before attempting a walk-and-turn test at the

scene, Loyd deactivated the audio on his body-worn camera. Defendant exited the squad car

approximately four minutes later, but the audio was not reactivated until about two minutes after

that. During that interval, defendant and Loyd appeared to converse, but the conversation was not

recorded. During the audio-recorded portions of the video, defendant never specifically stated that

he lost control of the vehicle and went into the ditch. At the Kingston police department, before

his arrest and while discussing his attire with Loyd, defendant stated that he had boots in the truck.

¶ 11 In closing argument, defendant asserted that his detention was unreasonably prolonged and

therefore exceeded the scope of the brief investigatory detention permitted under Terry. Defendant

noted that Loyd arrived at the scene at approximately 1:47 a.m. and that he was not arrested until

about 3 a.m. Defendant argued that he was never advised that he could refuse to perform field

sobriety tests. He further argued that Loyd’s statement, that if he was going to perform the tests

he would want to do them in the best possible location, implied that defendant was required to

submit to testing. Defendant also maintained that he did not agree to be relocated to the police

station, but merely indicated that he could not perform the tests at the scene. According to

defendant, he “could have been under arrest at any point throughout this entire hour because he

-5- was not able to leave.” Based on these circumstances, defendant argued that his detention was

unlawful.

¶ 12 The State argued that the video showed only 51 minutes elapsed between Loyd’s arrival

and defendant’s arrest. According to the State, much of that time was spent allowing defendant to

warm up before completing the field sobriety tests. The State further argued that Loyd was friendly

and accommodating, giving defendant multiple opportunities to warm up and perform the tests

under the best possible conditions. The State also maintained that defendant’s wet and frozen

clothing resulted from his own actions after the truck entered the ditch. Accordingly, the State

argued that the motion to suppress should be denied.

¶ 13 Following arguments, the trial court noted that the material facts were undisputed because

the video depicted the events of that evening. The trial court made the following findings based

on the video. Approximately 51 minutes elapsed between Loyd’s arrival on the scene and

defendant’s arrest. From Loyd’s first interaction with defendant, defendant appeared confused

about his location, and his speech was at times slurred. Defendant admitted he had been drinking

and stated that he probably had more than he should have at the party. The roads appeared to be

clear and dry. Loyd asked defendant to perform some field sobriety tests, and defendant agreed.

About 11 minutes into the detention, Loyd asked defendant whether he wanted to warm up in the

back of the squad car. When defendant entered the vehicle, Loyd specifically told him he was not

under arrest. After three or four minutes, defendant exited the squad car and went to his truck to

retrieve his coat. Loyd then administered the walk-and-turn test. Defendant stated that he was so

cold his legs were shaking. Loyd asked whether defendant would prefer to perform the tests at a

nearby police department where conditions would be more favorable. Defendant ultimately stated

that he could not complete the field sobriety tests at the scene and returned to the squad car. When

-6- defendant reentered the vehicle, Loyd again told him he was not under arrest. They arrived at the

Kingston police station approximately 25 minutes into the detention. Almost immediately upon

entering, Loyd explained the walk-and-turn test, but defendant asked to warm his toes before

beginning, which Loyd allowed so that defendant could have the best opportunity to perform the

tests. Defendant performed the walk-and-turn test twice. Loyd then instructed defendant on the

one-leg stand test, during which defendant again stated he was cold and removed his shoes.

Defendant then performed the alphabet and backward-counting tests. Before doing any other tests,

defendant sat down to massage his feet with some hand warmers. After stating he had regained

feeling in his toes, defendant attempted the one-leg stand test. Loyd then explained the portable

breath test, but defendant refused to take it. After that, about 51 minutes into the detention, Loyd

placed defendant under arrest.

¶ 14 The trial court found that the majority of the time between Loyd’s initial interaction with

defendant and the arrest was spent accommodating defendant because of the cold temperatures

and giving him the opportunity to perform the tests in a safe and warm environment, where his

performance would not be affected by the weather conditions. The trial court found that Loyd

acted reasonably and that the detention was justified by the circumstances. The trial court also

stated that there was no show of force and that, at the police station, nothing stood between

defendant and the exit door. The trial court concluded that there was no unlawful seizure and

denied the motion to suppress.

¶ 15 A bench trial was held on April 23, 2025. At trial, Loyd testified that during his 25 years

of service, he received training at both the academy and the sheriff’s office in conducting

standardized field sobriety tests and investigating DUI and traffic violations. On January 20, 2024,

he was dispatched to the intersection of Cherry Valley and Kingston roads in response to a report

-7- of a “driver in the ditch.” When he arrived on the scene, Deputy Fox was already present, and

Loyd observed another vehicle driving away. Loyd identified defendant in court as the person he

encountered at the scene. Loyd testified that defendant told him he had been driving but lost

control of the vehicle due to road conditions. Defendant stated that he was traveling from Addison

to his home in Loves Park. During his conversation with defendant, Loyd observed that

defendant’s pants zipper was down, the crotch area of his pants was wet, his pants were frozen

from the knees down, and his shoes were wet. He also noticed that defendant’s eyes were

bloodshot and glassy. Defendant’s speech was slurred, and his breath had a strong odor of alcohol.

When questioned, defendant admitted that he had been drinking. Defendant stated that he had four

drinks and his last drink was about two hours before the conversation. Defendant told Loyd that

it was about 10 p.m., when in fact it was closer to 2 a.m. Based on his observations and

conversations with defendant, Loyd believed it was appropriate to conduct field sobriety tests.

¶ 16 Loyd further testified that he first administered the HGN test. Before beginning, he

normally asked prescreening questions and made prescreening observations. His prescreening

questions included whether defendant wore glasses or contact lenses and whether defendant could

see the tip of the pen used to conduct the test. His prescreening observations included whether

defendant exhibited equal tracking and equal pupil size in both eyes. During that test, Loyd looked

for three clues: lack of smooth pursuit, sustained nystagmus at maximum deviation, and the onset

of nystagmus prior to 45 degrees. He looked for each clue in both eyes. Defendant exhibited all

three clues in each eye, resulting in a score of six. A score of four indicated alcohol consumption.

Loyd then explained the nine-step walk-and-turn test. Defendant attempted the test but stated that

he was cold, so Loyd allowed him to warm up in the back of the squad car for about five minutes.

-8- Loyd did not believe there were any other field sobriety tests administered at the scene because

defendant agreed to complete them at a nearby police station in Kingston.

¶ 17 When they arrived at the Kingston police station, Loyd immediately instructed defendant

on how to complete the nine-step walk-and-turn test. He told defendant to stand with his right foot

on an imaginary line, his left foot in front touching heel to toe, his hands at his sides, and not to do

anything until further instructed. This instruction phase was part of the test and was used to

determine a person’s ability to maintain balance while receiving instructions. During the test, Loyd

looked for the following clues: failing to touch heel to toe, stepping off the line, raising one’s arms

for balance, stopping while walking, taking an incorrect number of steps, and making an improper

turn. Defendant failed the instruction phase and, during the test, exhibited all of the clues except

stopping while walking. Two clues indicated impairment by alcohol, and defendant exhibited

seven clues during the test.

¶ 18 Loyd then administered the one-leg stand test. He explained that, during that test, the

subject was instructed to raise either foot six inches off the ground, keeping his leg straight with

his toe pointed, look at his toe, keep his hands at his sides, and count for 30 seconds. The clues

observed during the test were hopping while balancing, putting one’s foot down, raising one’s arms

for balance, and swaying. During the test, Loyd observed all four clues. Two clues were indicative

of alcohol impairment.

¶ 19 Loyd also conducted an alphabet test and a counting test. Loyd instructed defendant to

recite a portion of the alphabet and then count backwards from one number to another. Loyd could

not recall how defendant performed on the alphabet test but testified that defendant had one or two

mishaps during the counting test. After completing all the field sobriety tests, Loyd formed an

opinion that defendant was under the influence. Loyd testified that he had observed numerous

-9- individuals under the influence, “too many to count,” during both his law-enforcement career and

his college years working as a bartender. Loyd based his opinion on defendant’s appearance,

mannerisms, performance on the field sobriety tests, and the fact that defendant had driven his

vehicle into a ditch. Loyd further testified that his opinion was based on the condition of

defendant’s eyes, his speech, the condition of his clothing, and his orientation to time and place.

¶ 20 After forming his opinion that defendant was under the influence, Loyd placed defendant

under arrest and transported him to the De Kalb County sheriff’s office. There, he read defendant

the Warning to Motorist and requested that defendant submit to a breath test, which defendant

declined. The State introduced Exhibit 1, the video from Loyd’s body-worn camera, without

objection. The State then played excerpts from the video in open court.

¶ 21 On cross-examination, Loyd testified that he could not recall whether there were

streetlights at the scene. When he arrived, defendant was not in the truck, and there were snow

tracks and tire tracks around the vehicle. He was not sure how long defendant had been at the

scene before his arrival. He acknowledged that it had been long enough for defendant’s pants to

freeze, his shoes to become wet, and for defendant to become visibly cold. Defendant was not

wearing a winter coat, hat, or gloves. The only time Loyd saw defendant in the truck was when

he retrieved his jacket. Loyd never saw defendant driving the truck and did not witness any traffic

violations. Although Loyd did not believe defendant had slid into the ditch due to road conditions,

he acknowledged that it was possible. The vehicle was sitting on packed ice and snow, and only a

portion of it was lodged in a mound of snow. When Loyd approached, defendant was outside the

truck assessing whether there was any damage. There was about a foot of snow in the ditch area,

and the shoulders of the road were covered with packed ice and snow. Loyd could not recall

whether the fog line was covered by snow. He further acknowledged that defendant stated his last

- 10 - drink was at 8 p.m., meaning that five hours had elapsed before their interaction. Loyd agreed that

defendant answered all of his questions, was polite and cooperative, and was not speaking with a

thick slur.

¶ 22 Loyd further testified that he administered the HGN test at the scene in front of his squad

car. During the test, defendant did not have difficulty balancing. At the scene, defendant was able

to walk to his truck and to the squad car without difficulty. Regarding the HGN test, Loyd testified

that the six clues he observed were indicative of alcohol consumption. When asked whether those

clues indicated that a person was above the legal limit, Loyd responded that they indicated “a

likelihood that they’re above the legal limit,” but he could not recall if it was conclusive as to the

issue.

¶ 23 Loyd acknowledged that there were strict instructions for how to administer the walk-and-

turn and the one-leg stand tests, and that proper administration and instructions were required for

reliable results. Loyd acknowledged that defendant complained of being frozen, cold, and unable

to feel his toes, feet, or shins, but testified that he would have taken those conditions into account

when administering the tests outdoors. He agreed that he told defendant that feeling one’s toes

was essential for balance. Loyd could not recall whether he instructed defendant to keep his hands

at his side during the walk-and-turn test performed at the scene. Loyd acknowledged that, when

demonstrating the walk-and-turn test, he showed only five steps, took a small series of steps to

turn around, and then took five steps back. He further acknowledged that his instructions were

improper because he did not explain that the lead foot should remain on the line during the turn.

Loyd acknowledged that defendant was shaking, cold, and frozen while performing the tests, and

that it was possible a person in defendant’s position could be experiencing hypothermia.

- 11 - Defendant also told Loyd that, on a scale of 1 to 10, he considered himself to be a 3 or 4 in terms

of intoxication.

¶ 24 On redirect examination, Loyd testified that defendant told him he had been driving the

vehicle at issue. The streets were not covered with snow and the fog line was likely visible. Loyd

had no difficulty driving his squad car to the scene. He observed tire tracks around the vehicle and

believed that some of them originated from the vehicle in the ditch. He offered defendant

opportunities to warm up because he believed doing so would improve defendant’s performance

on the field sobriety tests. He allowed defendant time to warm up before the walk-and-turn tests

and additional time before the one-leg stand test. The State rested.

¶ 25 Defendant filed a motion for directed finding. Defendant argued that, other than his

confession, there was no corroborating evidence that he was driving or in control of the truck.

There was no showing that defendant had the keys, that the truck was registered to him, that he

was in the driver’s seat, or that he had insurance on the truck. Defendant also argued that the walk-

and-turn and one-leg stand tests were administered improperly and that the results were therefore

unreliable. He asserted that, in the absence of the allegedly unreliable field sobriety tests, there

was no proof that he was under the influence.

¶ 26 The State argued that there was corroborating evidence that defendant drove the truck,

noting that defendant provided details regarding the route he was taking home before becoming

stuck in the ditch and that tire tracks showed the truck’s path of travel. The State further argued

that there was sufficient evidence to establish that defendant was under the influence. Loyd

observed an odor of alcohol on defendant’s breath and slurred speech. The results of the HGN test

were indicative of alcohol consumption. During the two walk-and-turn tests at the police station,

defendant lost his balance on both occasions and had to grab the wall for support. The State argued

- 12 - that, even if defendant was not given proper instructions, he was unable to walk a straight line,

touch heel to toe, or maintain his balance. Defendant also failed the one-leg stand test by swaying,

raising his arms, hopping, and putting his foot down. Finally, the State also noted that defendant

admitted drinking alcohol and did not know the correct time when questioned at the scene.

¶ 27 Thereafter, the trial court denied the motion for a directed finding and the defense rested.

Following closing arguments, which largely reiterated the arguments made in closing on the

motion for directed finding, the trial court found defendant guilty of driving under the influence

and improper lane usage. The trial court stated that it would “strain credulity” to find that

defendant was not the driver of the truck when he was next to it in a rural area in snow and freezing

cold weather. The trial court further stated it did not know how defendant or the truck could have

ended up on the side of the road in a rural area, noting that “they probably were not dropped there

by helicopters.” The trial court found sufficient evidence that defendant was under the influence,

observing that the video showed defendant’s balance issues during the walk-and-turn and the one-

leg stand tests “were not small ones.” The trial court further observed that defendant could walk

normally when using both hands and feet, but exhibited clear balance issues when performing the

field sobriety tests. The trial court also noted that the vehicle had clearly been driven off the

roadway. Based on Loyd’s credible testimony and the video evidence, the trial court found that

defendant’s clothing was disheveled, his zipper was undone, and his perception of time and

location was inaccurate. The trial court sentenced defendant to 18-months’ conditional discharge

for DUI and imposed a fine for improper lane usage. Defendant filed a motion to reconsider,

arguing that he was not proved guilty beyond a reasonable doubt but raising no argument regarding

the denial of his motion to suppress. Following the denial of his motion to reconsider, defendant

filed a timely notice of appeal.

- 13 - ¶ 28 II. ANALYSIS

¶ 29 A. Driving Under the Influence

¶ 30 Defendant’s first contention on appeal is that the State failed to prove him guilty beyond a

reasonable doubt of driving under the influence. He asserts that he never admitted driving the

truck and that, even if his statements could be construed as an admission, no independent evidence

corroborated that he was the driver or otherwise established that he was in actual physical control

of the vehicle. Defendant further contends that there was insufficient evidence to prove that he

was under the influence of alcohol.

¶ 31 “A criminal conviction will not be set aside unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” People v. Collins, 106

Ill. 2d 237, 261 (1985). In reviewing a challenge to the sufficiency of the evidence, it is not the

function of this court to retry the defendant. Id. Rather, “ ‘the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in

original.) Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard applies

regardless of whether the evidence is direct or circumstantial and regardless of whether the

defendant received a bench or jury trial. People v. Cooper, 194 Ill. 2d 419, 431 (2000).

¶ 32 The trier of fact is responsible for assessing the credibility of the witnesses, determining

the weight to be given to their testimony, resolving conflicts in the evidence, and drawing

reasonable inferences therefrom. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). This court will not

substitute its judgment for that of the trier of fact on these matters. Id. Further, the trier of fact is

not required to disregard reasonable inferences that flow naturally from the evidence or to seek out

- 14 - all possible explanations consistent with innocence and elevate them to the level of reasonable

doubt. People v. Jackson, 232 Ill. 2d 246, 281 (2009).

¶ 33 Circumstantial evidence may be used to prove the presence of alcohol in a defendant’s

breath or blood. People v. Kathan, 2014 IL App (2d) 121335, ¶ 20. Circumstantial evidence is

proof of facts and circumstances from which the trier of fact may infer other connected facts that

reasonably and ordinarily follow according to common experience. People v. McPeak, 399 Ill.

App. 3d 799, 801 (2010). A conviction for DUI may rest solely on the credible testimony of the

arresting officer. People v. Janik, 127 Ill. 2d 390, 402 (1989). Relevant evidence of intoxication

includes the odor of alcohol on a defendant’s breath, glassy or bloodshot eyes, and refusal to submit

to chemical testing, which may be considered evidence of consciousness of guilt. People v. Love,

2013 IL App (3d) 120113,¶ 35.

¶ 34 Here, defendant was charged with violating section 11-501(a)(2) of the Illinois Vehicle

Code (625 ILCS 5/11-501(a)(2) (West 2024)), which prohibits a person from driving or being in

actual physical control of a vehicle while under the influence of alcohol. Proof of a criminal

offense requires the State to establish both that a crime occurred, known as the corpus delicti, and

that it was committed by the person charged. People v. McKown, 2022 IL 127683, ¶ 45. “The

corpus delicti, or the commission of a crime, generally cannot be proven by a defendant’s

admission, confession, or out-of-court statement alone.” Id. Rather, when an admission forms

part of the State’s proof of the corpus delicti, the State must present independent corroborating

evidence that a crime occurred. Id. The corroborating evidence need only tend to show, in a

general sense, that a crime occurred; it need not be sufficient, standing alone, to prove the charged

offense beyond a reasonable doubt. Id. ¶ 46. “The requirement that corroborative evidence tend

to show the commission of a crime cannot be construed to require that the same corroborative

- 15 - evidence foreclose every other possible explanation of that evidence.” People v. Underwood, 2019

IL App (3d) 170623, ¶ 17. Further, “if there is evidence of corroborating circumstances which

tend to prove the corpus delicti and correspond with the circumstances related in the confession,

both the circumstances and the confession may be considered in determining whether the corpus

delicti is sufficiently proved in a given case.” (Internal quotation marks and citation omitted.)

People v. Willingham, 89 Ill. 2d 352, 359 (1982).

¶ 35 1. Standard of Review

¶ 36 At the outset, defendant raises two arguments concerning the applicable standard of review.

Defendant first contends that, because he does not dispute the underlying facts or the credibility of

the witnesses and instead argues only that the undisputed facts are insufficient to prove the

elements of the offense, his challenge to the sufficiency of the evidence is subject to de novo

review. In support, he relies on People v. Smith, 191 Ill. 2d 408 (2000) and In re Ryan B., 212 Ill.

2d 226, 231 (2004). However, our supreme court explained in People v. Jones, 2023 IL 127810,

¶¶ 22-24, that de novo review applied in Smith and Ryan B. because those cases presented legal

questions concerning the meaning and scope of statutory elements, rather than questions regarding

the sufficiency of the evidence. As the Jones court explained, the issue in Ryan B. was whether

asking a child to lift her shirt constituted enticing, coercing, or persuading within the meaning of

the sexual exploitation of a minor statute. Id. ¶ 23. Likewise, the issue in Smith was whether the

defendant committed armed violence within the meaning of the statute after dropping an unloaded

gun out his window before police entered his apartment. Id. ¶ 24. As the present case presents no

question concerning the meaning or scope of a statutory element and instead concerns only

whether the evidence sufficiently established the relevant facts, defendant’s reliance on Smith and

Ryan B. is misplaced.

- 16 - ¶ 37 Defendant next argues that whether the State presented sufficient corroborating evidence

of an extrajudicial admission is a question of law subject to de novo review, citing People v. Lara,

2012 IL 112370, ¶ 16. Defendant’s reliance on Lara is likewise misplaced. At issue in Lara was

“the legal question of whether all elements *** of a charged offense must be supported by

independent evidence before a defendant’s inculpatory statement may be used to establish the

corpus delicti of the offense.” Id. ¶ 48. The court concluded “that the corpus delicti rule does not

universally mandate corroboration of every element of every charged offense” and that it “need

not precisely align with the details of the confession on each element of the charged offense, or

indeed to any particular element of the charged offense” Id. ¶¶ 30, 51. Thus, Lara addressed the

scope or interpretation of the corpus delicti rule, a question of law, rather than whether the evidence

was sufficient to establish the facts underlying the charged offense. Moreover, Lara reaffirmed

that, although the interpretation of the rule is a question of law, the weight of the corroborating

evidence and the reasonable inferences to be drawn from it remain matters for the trier of fact. Id.

¶¶ 17, 46-47. Here, whether defendant was driving the truck and whether he was under the

influence of alcohol while doing so are questions of fact, not questions of law. See People v.

Galarza, 2023 IL 127678, ¶ 51 (whether the defendant was the driver is a question of fact); People

v. Groebe, 2019 IL App (1st) 180503, ¶ 57 (whether the defendant was under the influence is a

question of fact). Accordingly, we reject defendant’s assertion that de novo review applies and

review his challenge to the sufficiency of the evidence under the standard set forth in Collins, 106

Ill. 2d at 261.

¶ 38 2. Defendant’s Admission

¶ 39 Defendant argues that he never made an admission that he was driving. However, this

argument is inconsistent with his position both at trial and in his motion to reconsider. During

- 17 - closing argument at trial, defense counsel acknowledged that defendant had confessed to driving

the vehicle, arguing instead that the confession was insufficient because it lacked corroboration.

Specifically, counsel argued that “there was a confession by [defendant] that he had been driving

the vehicle. However, that is not enough *** to find him in control of the vehicle. It has to be

corroborated with some other evidence.” Likewise, when the State argued in closing that “the

defendant does admit that he was driving the vehicle,” defendant raised no objection. Further, in

his motion to reconsider, defendant argued that the trial court improperly relied on his

“uncorroborated out of court statements that he was driving the vehicle on the night of the arrest”

and asserted that he “made out-of-court statements that he drove the vehicle and was on his way

back from a work event.” Thus, throughout the trial court proceedings, defendant’s position was

not that he never admitted driving, but that his admission was insufficiently corroborated.

Accordingly, defendant’s assertion that he never admitted driving the truck is forfeited. See People

v. Hughes, 2015 IL 117242, ¶¶ 40, 45-47 (holding that the defendant forfeited his argument on

appeal that his confession was involuntary because, throughout trial and in posttrial proceedings,

he challenged only the reliability of his confession rather than its voluntariness).

¶ 40 3. Corroborating Evidence that Defendant was Driving

¶ 41 In determining whether there was sufficient corroborating evidence to show that defendant

was driving the vehicle, Underwood, 2019 IL App (3d) 170623, is instructive. In that case, an

officer responded to the scene of an accident, involving two vehicles and two individuals, one of

whom was the defendant. Id. ¶ 4. The officer could not recall whether either individual was inside

a vehicle when he arrived. Id. The defendant admitted she was the driver of one vehicle and

described in detail how the accident occurred. Id. ¶ 5. Based on his experience in accident

reconstruction, the officer opined that the damage to the vehicles was consistent with the

- 18 - defendant’s version of events. Id. The officer did not know how long the vehicles had been at the

scene and acknowledged that the vehicle driven by the defendant was registered to someone other

than the defendant. Id. ¶ 6.

¶ 42 The defendant was found guilty of driving while her license was suspended. Id. ¶ 7. On

appeal, she argued that the State failed to prove the corpus delicti because there was insufficient

corroborating evidence of her admission. Id. ¶ 9. In addressing that issue, the reviewing court

acknowledged that the defendant did not have the keys to the vehicle and was not the registered

owner. Id. ¶ 20. Nonetheless, the court determined that the defendant’s knowledge of how the

traffic accident occurred, along with evidence that she was the only person in the vicinity of the

vehicle, was sufficient corroborating evidence to support her admission that she drove the vehicle.

Id. ¶ 15. The court acknowledged the defendant’s arguments that she could have merely witnessed

the accident or been a passenger in the vehicle but explained that corroborative evidence need not

foreclose every other possible explanation of the evidence. Id. ¶ 17. Rather, noting that the

threshold for corroborating evidence was low and that the simplest explanation was that the

defendant was the driver, the court held that the corroborating evidence was sufficient. Id.

¶ 43 As in Underwood, there was sufficient corroborating evidence in this case to establish that

defendant was the driver of vehicle. Defendant was able to explain where he had been headed

before the accident, stating that he was attempted to travel west from a Christmas party to his home

and that “it didn’t work out.” Defendant was the only person present when officers made contact

with him at the scene in a rural area. Defendant also demonstrated a possessory connection to the

truck: at the scene, he retrieved his jacket from the vehicle, and later, while speaking with Loyd at

the Kingston police station about his attire, he stated that he had boots in the truck. Finally, video

footage showed defendant providing his driver’s license to an officer at the scene, conduct

- 19 - consistent with his admission that he had been driving the truck. In addition, his refusal to submit

to a breath test supports an inference that he was concerned about discovery of his potential

impairment, a concern that would presumably be an issue only if he had been driving. Consistent

with the threshold for corroborating evidence exemplified in Underwood, these facts tend to

support the reliability of defendant’s admission that he was the driver of the truck. Id. ¶ 15; People

v. Robertson, 2024 IL App (1st) 220796-U, ¶¶ 42, 44 (finding sufficient corroboration where the

defendant was the only person in proximity to the vehicle, complied with the officer’s request for

her driver’s license and insurance information, and provided a false urine sample demonstrating

consciousness of guilt regarding driving a vehicle while potentially impaired). 1

¶ 44 Defendant argues that Underwood is distinguishable because he never stated that he was

the driver and did not provide specific details about how the truck came to rest in the snowbank.

We have already rejected defendant’s contention that he never admitted driving the vehicle.

Further, although defendant did not provide the same detailed account of the incident as the

defendant in Underwood, the significance of that case is not in the precise nature of the

corroborating evidence but rather the principle that corroborating evidence need only tend to

support the reliability of the admission. Underwood, 2019 IL App (3d) 170623, ¶ 17. Here,

defendant was the only person present when the officers encountered him, demonstrated a

possessory connection to the truck, provided his driver’s license to officers at the scene, and

refused a breath test. As explained, these circumstances sufficiently corroborated his admission.

1 We may rely on the reasoning of a nonprecedential decision under Illinois Supreme Court Rule 23

(eff. June 3, 2025). Zhao v. State Farm Fire & Casualty Co., 2025 IL App (2d) 240723, ¶ 30; People v.

Ingram, 2020 IL App (2d) 180353, ¶ 21 n.1.

- 20 - ¶ 45 Defendant further argues that Underwood is inapplicable because the circumstances here

undermine, rather than corroborate, his admission. Specifically, he notes that Loyd testified that

it was possible the truck slid into the snowbank because of road conditions and that a third vehicle

drove away as Loyd arrived, suggesting that someone else may have been driving. These

arguments merely identify competing inferences that could be drawn from the evidence, the

resolution of which was for the trier of fact. People v. Hubbell, 2021 IL App (2d) 190442, ¶ 14.

The video showed that the roadways were generally clear, with snow and ice primarily

accumulated along the sides of the roads, supporting a reasonable inference that defendant drove

into the snowbank because of impairment rather than road conditions. Likewise, although the

departing vehicle could have contained another potential driver, the trial court could reasonably

infer that it belonged to a person who stopped to assist defendant in removing the truck from the

snowbank. As Underwood makes clear, corroborating evidence need not foreclose every

alternative explanation; it need only tend to support the reliability of the admission. Underwood,

2019 IL App (3d) 170623, ¶ 17. Here, defendant was the only person present when officers made

contact with him, and there was no direct evidence that anyone else had been driving the truck.

Accordingly, the trial court could reasonably infer that defendant was the driver and conclude that

sufficient corroborating evidence supported the reliability of his admission.

¶ 46 In arguing that there was insufficient corroborating evidence, defendant relies on People v.

Foster, 138 Ill. App. 3d 44 (1985) and Village of Round Lake v. Delatorre, 2021 IL App (2d)

190066-U. In Foster, the defendant was found guilty of driving with a blood alcohol concentration

above the legal limit and argued on appeal that the State failed to prove the corpus delicti of the

offense. Foster, 138 Ill. App. 3d at 46. The evidence showed that, when an officer arrived at the

scene of a one-car accident, the defendant was asleep in the passenger seat and another individual

- 21 - was asleep in the driver’s seat. Id. at 45. At the scene, the defendant told the officer twice that he

was driving at the time of the accident, but at the police station he denied being the driver. Id. at

46. The reviewing court reversed the conviction, concluding that there was insufficient

corroborating evidence to support the defendant’s initial admission that he had been driving. Id.

at 47. In doing so, the court emphasized that the defendant was found in the passenger seat, there

was no evidence surrounding the circumstances of the accident or how long the vehicle had been

at the scene, no evidence as to ownership of the vehicle, and the defendant later denied being the

driver at the police station. Id. at 46-47. The court also noted that the defendant was not arrested

for DUI until several months after the accident because the responding officer initially believed

the defendant’s statement that he was not the driver. Id. at 47.

¶ 47 In Delatorre, an officer arrived at a courtyard in response to a report of domestic violence

that had occurred at a different location. Delatorre, 2021 IL App (2d) 190066-U, ¶ 4. In the

courtyard, the defendant and another individual were standing near a white car, and another man

was present inside a different vehicle. Id. The defendant stated that she had driven to the location

in the hopes of finding her boyfriend and that the person standing next to her had arrived in the

other vehicle. Id. Based on her speech and appearance, the officer asked the defendant to perform

field sobriety tests, after which she was arrested for DUI. Id. ¶ 5. While being booked at the police

station, the defendant denied driving the vehicle. Id. The defendant was charged with one count

of DUI and, following a bench trial, was found guilty of the offense. Id. ¶ 2. The trial court found

that the defendant’s admission that she drove the vehicle was sufficiently corroborated by the

presence of the vehicle, her act of identifying it as the vehicle she drove, and the presence of two

men with her. Id. ¶ 6.

- 22 - ¶ 48 On appeal, the defendant argued that the State failed to prove the corpus delicti of the

offense. Id. ¶ 8. This court held that there was insufficient corroborating evidence that the

defendant drove the vehicle. We noted that, aside from her admission, the evidence showed only

that she and two men traveled in two vehicles to the courtyard. Id. ¶ 11. The defendant was not

observed in the driver’s seat, there was no evidence that she possessed the keys to the vehicle, and

there was no evidence that she owned or regularly drove the vehicle. Id. This court further

explained that the facts did not compare favorably to other cases in which courts had found

sufficient corroboration of a defendant’s admission to driving. Id. ¶ 12. We discussed two such

cases. In one, a car had collided with a bridge, and the defendant admitted he was driving and

later went home after the collision. Id. (citing People v. Sanchez, 2019 IL App (3d) 160643). The

Sanchez defendant’s admission was sufficiently corroborated by evidence that the vehicle was

registered to him and he was found at his home a few blocks away with the keys to the vehicle in

his possession. Id. In another case, the defendant was found guilty of DUI and other offenses

following a traffic accident. Id. (citing People v. Rhoden, 253 Ill. App. 3d 805 (1993)). The

Rhoden defendant’s admission to driving was corroborated by evidence that he owned the vehicle,

was standing next to it after the accident, a victim was pinned under the passenger side of the

vehicle, and he exhibited possessive behavior suggesting he would not have allowed another

person to drive his car. Id.

¶ 49 Defendant argues that, as in Foster and Delatorre, there was insufficient corroborating

evidence of his extrajudicial admission because the State failed to establish that he owned the

truck, that it was registered to him, that he possessed keys to the truck, he was not found in the

driver’s seat, and there was no evidence of the circumstances surrounding the accident or how long

the truck had been there.

- 23 - ¶ 50 Defendant’s reliance on Foster and Delatorre is unpersuasive. Both cases are

distinguishable on their facts. Unlike the defendant in Foster, defendant was not found in the

passenger seat of the vehicle and, unlike in Foster and Delatorre, defendant was the only person

present when the officers encountered him and he never denied that he was the driver. Moreover,

defendant’s statement that his last drink occurred only hours earlier supported a reasonable

inference that the incident had occurred recently. More importantly, the corroborating

circumstances here established a stronger connection between defendant and the truck than existed

in Foster or Delatorre. Defendant never retracted his admission to driving the truck, described his

travel from a Christmas party toward his home, was found alone at the scene, and demonstrated a

possessory connection to the vehicle through the personal items he kept inside it. Further, “that

certain evidence is sufficiently corroborative in one fact-specific case *** does not mean that the

absence of such evidence in another case is fatal.” Underwood, 2019 IL App (3d) 170623, ¶ 20;

People v. Slinkard, 362 Ill. App. 3d 855, 859 (2005) (whether a defendant exercised control over a

vehicle must be determined on a case-by-case basis). Thus, the absence of evidence that defendant

owned the truck, that it was registered to him, or that he possessed the keys is not dispositive.

Viewing the evidence in the light most favorable to the State, defendant’s admission, considered

together with the corroborating circumstances, was sufficient for a rational trier of fact to conclude

beyond a reasonable doubt that defendant drove the truck. Because the evidence was sufficient to

establish that defendant drove the truck, we need not consider whether the State also proved that

defendant was in actual physical control of the vehicle.

¶ 51 4. Evidence of Impairment

¶ 52 Defendant next argues that there was insufficient evidence to prove that he was driving

under the influence of alcohol. He contends that the results of the field sobriety tests were

- 24 - unreliable because they were not administered properly or conducted under proper conditions, and

because Loyd lacked the qualifications to administer them. Defendant notes that, although Loyd

testified he was trained in field sobriety testing, he did not specify when he received that training

or whether it complied with NHTSA requirements. With respect to the HGN test, defendant argues

that Loyd failed to first determine whether defendant had any head injuries and incorrectly testified

that positive results indicated a likelihood that defendant was over the legal limit. Regarding the

walk-and-turn test, defendant contends that Loyd provided improper instructions because he failed

to instruct defendant to keep his lead foot on the line. Defendant further asserts that the one-leg

stand test was unreliable because defendant’s toes were frozen and he may have been suffering

from hypothermia. Finally, defendant argues that the video evidence shows he exhibited no

balance issues outside of the tests, spoke clearly, followed instructions, and demonstrated mental

clarity.

¶ 53 A defendant is under the influence of alcohol when, as a result of consuming alcohol, his

“mental or physical faculties are so impaired as to reduce [the] ability to think and act with ordinary

care.” People v. Groebe, 2019 IL App (1st) 180503, ¶ 57. A defendant must be impaired to the

extent that he is incapable of driving safely. Id. Whether a defendant was under the influence is a

question of fact. Id. ¶ 57. The State is not required to present scientific evidence, such as a

breathalyzer test, to establish intoxication. Id. ¶ 58. Rather, intoxication may be proven through

circumstantial evidence, and “[a]ny evidence of alcohol consumption is relevant to the issue of

impairment.” Id. The trier of fact may rely on credible testimony, including an officer’s

observations of a defendant’s conduct, speech, or appearance. Id. Credible testimony that a

defendant had glassy eyes, an odor of alcohol on his breath, or failed field sobriety tests is relevant

evidence of impairment. Id. ¶ 58; People v. Morris, 2014 IL App (1st) 130512, ¶ 20. Refusing to

- 25 - submit to a breath test is also circumstantial evidence of consciousness of guilt. Groebe, 2019 IL

App (1st) 180503, ¶ 59.

¶ 54 Viewed in the light most favorable to the State, the circumstantial evidence in this case

supports the finding that defendant was under the influence of alcohol. Defendant admitted that

he had been at a party and had consumed four drinks. During the video recording, near the time

the HGN test was administered, defendant stated that he had more drinks than he should have at

the party. Loyd, whose testimony the trial court found credible, testified that defendant smelled of

alcohol, had slurred speech, and his clothing was disheveled. Loyd also testified that defendant

had a flushed complexion and that his eyes were red, watery, and bloodshot, with dilated pupils.

Defendant also exhibited clues of consumption during the field sobriety tests and refused to submit

to a Breathalyzer or chemical testing. The video evidence, which the trial court was able to view,

corroborated Loyd’s testimony. This evidence supports the trial court’s finding that defendant was

under the influence of alcohol while driving. Id.; People v. Janik, 127 Ill. 2d 390, 402-03 (1989)

(officer’s testimony regarding odor of alcohol, watery eyes, and poor performance on field sobriety

tests was sufficient evidence of intoxication).

¶ 55 Defendant argues that the trial court erred in relying on the field sobriety tests because

Loyd failed to administer them under proper conditions and lacked the qualifications to do so.

Defendant’s argument is, in substance, a challenge to the foundation for Loyd’s testimony

regarding the field sobriety tests. This claim is forfeited. People v. Johnson, 238 Ill. 2d 478, 484

(2010) (failure to object at trial and include an issue in a posttrial motion results in forfeiture of or

ordinary appellate review). Although defendant challenged at trial the manner in which the walk-

and-turn and the one-leg stand field sobriety tests were administered, he did not raise any

foundational challenges to the admission of the field sobriety tests in his motion to reconsider.

- 26 - While forfeiture does not apply to challenges to the sufficiency of the evidence (see, e.g., People

v. Cregan, 2014 IL 113600, ¶ 16), defendant’s argument on appeal is not a pure sufficiency claim.

Rather, he contends that his conviction rests on evidence that should have been excluded for lack

of a proper foundation. Such a claim implicates admissibility issues that were not properly

preserved for review nor exempt from the forfeiture principle. See People v. Hamilton, 361 Ill.

App. 3d 836, 843-44 (2005) (“Generally, a defendant’s challenge to the foundation for a particular

piece of evidence is considered an attack on its admissibility rather than an attack on its sufficiency

to uphold a conviction and is thus subject to the ordinary rules of [forfeiture]”); see also People v.

Hodges, 2012 IL App (2d) 110723-U, ¶ 8. Further, although forfeited claims may be reviewed for

plain error under Supreme Court Rule 615(a) (eff. Jan. 1, 1967), defendant does not request plain-

error review on appeal. He has therefore forfeited plain error review as well. People v. Hillier,

237 Ill. 2d 539, 545-46 (2010) (a defendant who fails to argue for plain error review cannot meet

his burden to prove either of the two prongs of plain error and has therefore forfeited plain error

review).

¶ 56 Even if we were to overlook forfeiture, defendant’s challenge to the testimony regarding

the walk-and-turn and one-leg-stand tests lacks merit. Loyd testified that he had been a police

officer for 25 years, was trained in standard field sobriety testing and the indicia of intoxication,

had conducted approximately 200 DUI investigations, and had observed many people under the

influence, specifically testifying that it was “too many to count.” This testimony provided a

sufficient foundation for his testimony regarding the walk-and-turn and one-leg stand tests. See

People v. Bostelman, 325 Ill. App. 3d 22, 32 (2001) (officer’s experience with DUI stops and

arrests provided sufficient foundation for testimony regarding field sobriety tests other than the

HGN test, because formal training was not required); see also People v. Hires, 396 Ill. App. 3d

- 27 - 315, 319 (2009) (quoting People v. Sides, 199 Ill. App. 3d 203, 206-07 (1990) (for field sobriety

tests other than the HGN test, “ ‘[n]o expert testimony is needed nor is a showing of scientific

principles required’ ”)).

¶ 57 As to the weight and reliability of the walk-and-turn and one-leg stand tests, the trial court

was aware of the asserted shortcomings. Loyd acknowledged that he failed to instruct defendant

to keep his lead foot on the line during the turn portion of the walk-and-turn test and testified that

this omission affected the reliability of the test. With respect to the one-leg stand test, Loyd

acknowledged that feeling one’s toes was important for balance, and there was evidence that

defendant was cold and reported that his toes were frozen. Nevertheless, the trial court viewed the

video, which showed defendant performing the walk-and-turn test twice at the police station,

where he was unable to maintain his balance during instructions, failed to walk heel-to-toe in a

straight line, and used a wall for support. The video further showed defendant hopping, putting

his foot down, raising his arms for balance, and swaying during the one-leg stand test. The trial

court was thus able to consider the conditions under which the tests were administered, including

that defendant was cold and was given time to warm up, and assess defendant’s level of sobriety

based on his test performance. See Bostelman, 325 Ill. App. 3d at 33 (trial court may evaluate

results of non-HGN field sobriety tests based on common experience); see also People v. Day,

2016 IL App (3d) 150852, ¶ 29 (improper administration of field sobriety tests affects weight, not

admissibility). Accordingly, there was no error in the trial court’s consideration of the walk-and-

turn and one-leg stand tests.

¶ 58 As to the HGN test, we recognize that it requires a more specific foundation than other

field sobriety tests. “[T]o be a reliable indicator of alcohol consumption, HGN field testing must

be performed in accordance with the NHTSA protocol.” People v. McKown, 236 Ill. 2d 278, 298

- 28 - (2010). HGN tests are admissible where a proper foundation has been laid, including a showing

that the officer was properly trained and that the test was administered in accordance with proper

procedures. Id. at 306. HGN testing is an indicator of alcohol consumption, not of a specific blood

alcohol concentration or level of impairment. Id. at 302.

¶ 59 Here, at trial, Loyd testified that he was trained, both at the academy and the sheriff’s office,

in conducting standardized field sobriety tests. However, Loyd did not expressly testify at trial

that he administered the HGN test in accordance with NHTSA standards. That specific testimony

was elicited at the suppression hearing, where Loyd stated that he conducted the HGN test pursuant

to NHTSA protocol, but that testimony was not repeated during the trial proceedings. Accordingly,

defendant has at least a colorable argument that, based solely on Loyd’s trial testimony, the State

did not fully establish that the HGN test was administered in accordance with proper procedures.

See id. at 306 ; see also People v. Korzenewski, 2012 IL App (4th) 101026, ¶ 21 (proper foundation

where officer testified that he was both trained to administer and administered the HGN test in

accordance with the NHTSA Manual).

¶ 60 Defendant’s challenge to the HGN evidence also has merit to the extent he argues that Loyd

improperly testified that the HGN test showed a likelihood of being over the legal limit. That

characterization was improper. McKown, 236 Ill. 2d at 302; People v. Motzko, 2017 IL App (3d)

160154, ¶ 25 (HGN testimony suggesting a specific blood alcohol concentration reflects improper

interpretation and inadequate training).

¶ 61 Nonetheless, any error in the admission or characterization of the HGN testimony was

harmless beyond a reasonable doubt in light of the remaining evidence of impairment. See People

v. Borys, 2013 IL App (1st) 111629, ¶¶ 40-41 (error in admission of officer’s HGN testimony was

harmless where other evidence alone was sufficient to prove defendant guilty of DUI beyond a

- 29 - reasonable doubt); People v. Graves, 2012 IL App (4th) 110536, ¶ 33 (finding any error in the

admission of the HGN test results was harmless where the competent evidence showed defendant

had failed two additional field sobriety tests). As noted above, there was ample other evidence of

defendant’s impairment, including his admission to drinking, the odor of alcohol, bloodshot and

glassy eyes, flushed complexion, slurred speech, and his performance on the remaining field

sobriety tests.

¶ 62 Defendant’s arguments ultimately invite this court to reweigh the evidence and substitute

our judgment for that of the trier of fact, which we may not do. See People v. Abdullah, 220 Ill.

App. 3d 687, 693 (1991). It is the responsibility of the trier of fact to resolve conflicts in the

evidence, assess credibility, and draw reasonable inferences therefrom. People v. Brown, 2013 IL

114196, ¶ 48. A conviction will be reversed only where the evidence is so unreasonable,

improbable, or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. Id. Here,

viewing the evidence in the light most favorable to the State, we conclude that the State presented

sufficient corroborating evidence of defendant’s admission that he was the driver and sufficient

evidence to sustain defendant’s conviction for DUI.

¶ 63 B. Motion to Suppress

¶ 64 Defendant’s next contention on appeal is that the trial court erred in denying his motion to

suppress. Defendant asserts that his arrest was not supported by probable cause and that the trial

court erred by not making a finding as to when defendant was under arrest and whether probable

cause existed at that moment. Defendant acknowledges that he did not raise this issue in his motion

to reconsider, but argues that it is not forfeited because it is a constitutional issue that could be

raised in a post-conviction petition.

- 30 - ¶ 65 To preserve an issue for review, it must be raised at trial and in a written posttrial motion.

People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, constitutional issues that were properly

raised at trial and may later be raised in a postconviction petition are exempt from forfeiture for

failure to include them in a posttrial motion. Cregan, 2014 IL 113600, ¶ 16. Defendant’s motion

to suppress alleged a violation of his constitutional right to be free from unreasonable seizures.

Accordingly, his claim falls within the constitutional exception to forfeiture and may be reviewed

on appeal despite his failure to raise it in a posttrial motion. Id. ¶ 20. We therefore address the

merits of defendant’s challenge to the denial of his motion to suppress.

¶ 66 “When a defendant files a motion to suppress evidence, he bears the burden of proof at a

hearing on that motion.” People v. Brooks, 2017 IL 121413, ¶ 22. During a suppression hearing,

a defendant must first make a prima facie showing that the evidence at issue was obtained through

an illegal search or seizure. People v. Gipson, 203 Ill. 2d 298, 306-07 (2003). If that showing is

made, the burden shifts to the State to present evidence countering the defendant’s prima facie

case; however, the ultimate burden of proof remains with the defendant. Id. at 307.

¶ 67 We employ a two-part standard when reviewing a trial court’s ruling on a motion to

suppress evidence. People v. Sims, 2022 IL App (2d) 200391, ¶ 72. “First, we defer to the trial

court’s findings of fact and will reverse those findings only if they are against the manifest weight

of the evidence.” Id. “A finding is against the manifest weight of the evidence when it is

unreasonable.” Id.; see People v. Miller, 2014 IL App (2d) 120873, ¶ 25 (noting that findings are

against the manifest weight of the evidence if they are unreasonable, arbitrary, or not based on

evidence or when an opposite conclusion is clearly evident). “Second, we review de novo the trial

court’s ultimate determination on whether the evidence should be suppressed.” Sims, 2022 IL App

(2d) 200391, ¶ 72; see People v. Luedemann, 222 Ill. 2d 530, 542 (2006) (reviewing court “remains

- 31 - free to undertake its own assessment of the facts in relation to the issues and may draw its own

conclusions when deciding what relief should be granted”). In conducting our review, we may

consider both the evidence presented at the suppression hearing and the evidence introduced at

trial. People v. Caballero, 102 Ill. 2d 23, 36 (1984).

¶ 68 The fourth amendment to the United States Constitution protects people against

unreasonable searches and seizures. U.S. Const., amend. IV. “Not every police-citizen encounter

results in a seizure.” People v. Smith, 2016 IL App (3d) 140648, ¶ 28. As this court has observed:

“[t]here are three tiers of police-citizen encounters: (1) an arrest of a citizen, which must

be supported by probable cause; (2) a temporary investigatory seizure conducted pursuant

to Terry v. Ohio, 392 U.S. 1 *** (1968), where an officer may conduct a brief, investigatory

stop of a citizen when the officer has a reasonable, articulable suspicion of criminal activity

and such suspicion amounts to more than a mere ‘hunch’; and (3) police-citizen encounters

that are consensual, which involve no coercion or detention and do not implicate any fourth

amendment [(U.S. Const., amend. IV)] interests.” People v. Bianca, 2017 IL App (2d)

160608, ¶ 13.

¶ 69 A traffic stop is considered more analogous to a temporary investigative seizure (i.e., a

Terry stop) than to a formal arrest. People v. Maberry, 2015 IL App (2d) 150341, ¶ 10. Traffic

stops are subject to the fourth amendment’s reasonableness requirement. People v. Hackett, 2012

IL 111781, ¶ 20. A police officer may conduct a brief investigatory stop where specific, articulable

facts, together with rational inferences, reasonably warrant the intrusion; the officer’s belief need

not rise to the level of probable cause that a crime has been committed. Id. The test is objective

and considers whether, under the totality of the circumstances, the facts available to the officer

would warrant a person of reasonable caution in believing the stop was appropriate. People v.

- 32 - Timmsen, 2016 IL 118181, ¶ 9. Although a defendant is not free to leave during a Terry stop, the

stop is not an arrest. People v. Thornton, 2020 IL App (1st) 170753, ¶ 36.

¶ 70 Probable cause to arrest exists when the facts known to the officer at the time of the arrest

are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a

crime. People v. Wear, 229 Ill. 2d 545, 563 (2008). Such a determination must be based on the

totality of the circumstances at the time of the arrest. People v. Day, 2016 IL App (3d) 150852,

¶ 22. Probable cause must rise to a level higher than mere suspicion. Id. “Officers are allowed to

draw on their own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that might well elude an untrained person.”

(Internal quotation marks omitted.) People v. Ciborowski, 2016 IL App (1st) 143352, ¶ 78.

¶ 71 We first address defendant’s contention that the trial court erred by failing to determine the

precise point at which the investigatory stop ripened into an arrest and whether that arrest was

supported by probable cause. The record does not support defendant’s contention. The trial court

found that defendant was placed under arrest at approximately 51 minutes into the detention, when

Loyd informed defendant that he was under arrest. Although the trial court did not expressly

determine whether probable cause existed at that moment, remand for such a determination is

unnecessary. The material facts are essentially undisputed, as Loyd’s testimony was

uncontradicted and the entire encounter was recorded. Accordingly, whether those facts

established probable cause presents a legal question that we review de novo. See People v. Tolliver,

2022 IL App (2d) 210080, ¶ 23. Under de novo review, this court performs the same analysis as

the trial court and owes no deference to the trial court’s ultimate legal conclusions. People v.

Harris, 2022 IL App (1st) 192509, ¶ 19. Thus, because the material facts are undisputed, we may

- 33 - resolve the ultimate legal questions presented and proceed to address the propriety of the denial of

defendant’s motion to suppress.

¶ 72 The trial court did not err in denying defendant’s motion to suppress because neither his

initial detention nor his subsequent arrest was unlawful. The initial encounter between defendant

and Officer Loyd was consensual. People v. Gherna, 203 Ill. 2d 165, 178 (2003) (“a seizure does

not occur simply because a law enforcement officer approaches an individual and puts questions

to that person if he or she is willing to listen”); People v. Starnes, 374 Ill. App. 3d 329, 334 (2007)

(“mere police questioning is not a seizure”). Loyd was responding to a report of a car in a ditch.

When he arrived, he approached defendant to ask him what had happened. Loyd testified that,

during this interaction, he smelled an odor of alcohol on defendant’s breath, his speech was slurred,

he had a flushed complexion, and his eyes were red, watery, bloodshot, and dilated. Further,

defendant admitted that he had been at an office Christmas party and had consumed four alcoholic

beverages.

¶ 73 Based on Loyd’s observations, and defendant’s admission to drinking, Loyd believed

defendant was under some level of influence and asked him to perform some field sobriety tests.

The issue thus becomes whether this request turned the consensual encounter into a seizure. In

People v. Walter, 374 Ill. App. 3d 763 (2007), this court acknowledged that there was ample foreign

authority to support a holding that submission to field sobriety testing constituted a seizure under

the fourth amendment (id. at 767-771 (citing cases)), but declined to adopt a per se rule because

the determination depended on the circumstances surrounding the request and the nature of the

request itself (id. at 772). The court explained that it need not address the issue because, even

assuming the request to perform field sobriety tests was a seizure in that case, the testing was

justified under the fourth amendment. Id. at 773.

- 34 - ¶ 74 As in Walter, we need not decide whether defendant was seized when he submitted to field

sobriety testing because, even assuming a seizure occurred at that point, the seizure did not run

afoul of the fourth amendment. The administration of field sobriety testing “requires only

reasonable suspicion unless the circumstances otherwise show that an arrest took place.” Id.

Factors relevant to determining whether a defendant has been arrested for DUI are: “ ‘(1) the

issuance of a citation; (2) the administration of field sobriety tests; (3) the transportation to a police

station [citation]; (4) the police officer’s continuing possession of an individual’s driver’s license;

(5) the handcuffing of the individual or the placing of the individual in the squad car [citation];

and (6) the duration of the individual’s detention [citation].’ ” Id. (quoting People v. Fortney, 297

Ill. App. 3d 79, 86 (1998)).

¶ 75 Based on the foregoing factors, defendant was not under arrest when Loyd asked him to

perform field sobriety tests. Other than retaining defendant’s driver’s license and requesting that

he perform field sobriety tests, defendant had not been issued a citation, handcuffed, placed in a

squad car, or transported to a police station. Under these circumstances, defendant was not under

arrest at the time he submitted to field sobriety testing. Village of Lincolnshire v. Kelly, 389 Ill.

App. 3d 881, 886 (2009) (the defendant was not under arrest where, aside from the officer

administering field sobriety tests and possessing her driver’s license, no citation had been issued,

she was not handcuffed or placed in a squad car, and she did not argue she was under arrest at the

time she submitted to the testing); Walter, 374 Ill. App. 3d at 773. Accordingly, we need only

determine whether the field sobriety testing was supported by reasonable suspicion. Walter, 374

Ill. App. 3d at 773.

¶ 76 Here, the field sobriety testing was supported by reasonable suspicion. Loyd testified that,

before administering the tests, he smelled an odor of alcohol on defendant’s breath, defendant’s

- 35 - speech was slurred, he had a flushed complexion, and his eyes were red, watery, bloodshot, and

dilated. Defendant also admitted that he had been drinking. Defendant was alone in a rural area

near a truck that had left the roadway and become stuck in a snowbank, and when asked where he

was going, he described where he was attempting to drive. He never stated that he was not the

driver of the truck or that anyone else was in the car with him. Under these circumstances, Loyd

had a reasonable suspicion, grounded in specific and articulable facts, that defendant was driving

under the influence when he requested field sobriety testing. Kelly, 389 Ill. App. 3d at 886-887;

Walter, 374 Ill. App. 3d at 774-75 (field sobriety tests supported by reasonable suspicion where

the defendant’s eyes were bloodshot, he had a strong odor of alcohol on his breath, he admitted

drinking four glasses of beer, and, while he did not specifically admit he had been the driver, it

was reasonable to suspect that he was). Therefore, even if the testing constituted a seizure, it was

permissible under Terry. Kelly, 389 Ill. App. 3d at 887.

¶ 77 Further, the Terry stop did not transform into an arrest when defendant was allowed to

warm up in the squad car or transported to the Kingston police station. Both times defendant

entered the squad car, defendant entered voluntarily and Loyd specifically told defendant he was

not under arrest. Loyd offered to transport defendant to a local police station so that he could do

the remaining field sobriety tests in a warm environment. Defendant was initially hesitant but

ultimately stated that he could not do the tests outdoors and voluntarily walked to Loyd’s squad

car. Transporting defendant to another location, including a police department, during an

investigatory stop does not necessarily turn the seizure into an arrest. See, e.g., Florida v. Royer,

460 U.S. 491, 504 (1983) (“[T]here are undoubtedly reasons of safety and security that would

justify moving a suspect from one location to another during an investigatory detention.”); People

v. Alvizures, 2024 IL App (1st) 221634-U, ¶ 35 (due to snowy conditions and defendant’s advanced

- 36 - years, transporting defendant to police station to complete field sobriety tests did not transform the

investigatory stop into an arrest); People v. Ollie, 333 Ill. App. 3d 971, 981-82 (2002) (defendant

was not under arrest when officers transported him to a police station to continue an investigation

where defendant went voluntarily, officers did not use force, and defendant was not handcuffed);

People v. Vena, 122 Ill. App. 3d 154, 163 (1984) (given the blizzard conditions, transporting the

defendants to the police station to continue the investigation was no more intrusive than keeping

them outside or in a squad car as there was no indication the officers did so to conduct interrogation

or engage in any actions beyond completing the investigation).

¶ 78 We also conclude that the duration of the detention did not transform the investigatory stop

into an arrest. The trial court expressly found that the majority of the detention resulted from

accommodations made to allow defendant to warm up and complete the field sobriety tests under

conditions that would not adversely affect his performance. It was approximately 14 minutes from

the time Loyd requested field sobriety tests until the time defendant agreed to be transported to the

Kingston police station. During that period, defendant was allowed to warm up in the squad car,

the HGN test was administered, and the walk-and-turn test was explained and demonstrated. Upon

arriving at the police station, Loyd immediately resumed the testing process. After defendant

completed the walk-and-turn test twice, defendant was allowed additional time to warm his feet

before completing the remaining tests. After defendant refused the portable breath test, Loyd

placed him under arrest. Thus, the detention lasted only as long as reasonably necessary to safely

and accurately complete the investigation. See United States v. Sharpe, 470 U.S. 675, 686 (1985)

(the relevant inquiry is whether police diligently pursued a means of investigation likely to confirm

or dispel their suspicions); People v. O’Dell, 392 Ill. App. 3d 979, 987 (2009) (90-minute detention

did not exceed the permissible scope of an investigatory stop where the duration was attributable

- 37 - to legitimate investigative needs). Under the circumstances presented here, the detention remained

sufficiently limited in scope and duration to qualify as a Terry stop.

¶ 79 Finally, we conclude that probable cause existed when defendant was formally arrested.

At that point, Loyd had observed that defendant had bloodshot eyes, slurred speech, an odor of

alcohol on his breath, and a flushed complexion. Defendant admitted that he had been drinking.

Defendant was the only person present near a truck that had left the roadway and become stuck in

a snowbank. Although Loyd did not witness the truck leave the roadway, such observation was

not required. See People v. Wingren, 167 Ill. App. 3d 313, 321 (1988). Defendant described where

he had been attempting to drive, had personal belongings in the truck, never suggested that

someone else had been operating it, and failed field sobriety tests. Considering the totality of the

circumstances, Loyd had probable cause to believe that defendant had driven the truck while under

the influence of alcohol. Fortney, 297 Ill. App. 3d at 87-88 (bloodshot eyes, strong odor of alcohol,

and failed field sobriety test established probable cause for arrest); People v. Crocker, 267 Ill. App.

3d 343, 346 (1994) (slurred speech, odor of alcohol, and two failed field sobriety test created

probable cause for arrest). Accordingly, defendant’s fourth amendment rights were not violated

and the trial court did not err in denying defendant’s motion to suppress.

¶ 80 In arguing that there was no probable cause, defendant cites several cases for the

proposition that an odor of alcohol, admission to drinking, and bloodshot and glassy eyes do not,

standing alone, establish probable cause for DUI without evidence of other factors to support

impairment, such as poor driving, stumbling, falling, or an inability to communicate. For various

reasons, the cases cited are distinguishable.

¶ 81 Defendant first relies on Day, 2016 IL App (3d) 150852, and People v. Motzko, 2017 IL

App (3d) 160154. In Day, the defendant committed no driving violations, communicated clearly

- 38 - with the officer, and performed reasonably well on field sobriety tests. Day, 2016 IL App (3d)

150852, ¶¶ 18, 37. In affirming the trial court’s order granting the defendant’s motion to suppress,

the reviewing court emphasized that the defendant’s driving was “nothing short of perfect” and

that the field sobriety tests revealed no indication of impairment. Id. ¶ 37. In Motzko, the evidence

showed only a slight odor of alcohol and an admission to consuming one drink, and the trial court

found the officer not credible on the issue of impairment. Motzko, 2017 IL App (3d) 160154,

¶¶ 22, 26.

¶ 82 Here, in contrast, defendant was involved in a single-vehicle accident, emitted a strong

odor of alcohol, admitted consuming four drinks, exhibited slurred speech, and appeared

disheveled. The trial court also found that defendant’s performance on the field sobriety tests

demonstrated balance problems that “were not small ones” and expressly found Loyd’s testimony

credible. Accordingly, Day and Motzko are materially different from the present case.

¶ 83 Defendant also relies on People v. Boomer, 325 Ill. App. 3d 206 (2001), and People v.

Tucker, 245 Ill. App. 3d 161 (1993). In Boomer, although the defendant had been involved in an

accident, emitted a strong odor of alcohol, and admitted drinking, this court affirmed the trial

court’s finding that probable cause to arrest for DUI was lacking. Boomer, 325 Ill. App. 3d at 211.

After hearing the arresting officer’s testimony, the trial court found that the circumstances did not

indicate alcohol-related impairment and we deferred to that determination. Id. at 211. In Tucker,

this court likewise affirmed the trial court’s finding of no probable cause where the arresting

officer’s written report noted an odor of alcohol and poor performance on an unspecified field

sobriety test, but the trial court apparently credited the defendant’s testimony explaining his

driving. Tucker, 245 Ill. App. 3d at 165-66. We again deferred to the trial court’s credibility

determination. Id. at 166.

- 39 - ¶ 84 Neither Boomer nor Tucker supports defendant’s position. Both cases turned in significant

part on deference to trial-court findings that favored the defendants. Here, by contrast, the trial

court expressly found Loyd credible and found multiple indicators of impairment beyond the odor

of alcohol and defendant’s admission to drinking, including slurred speech, disorientation to time

and place, a disheveled appearance, poor performance on the non-HGN field sobriety tests, and

defendant’s involvement in a single-vehicle accident on roads that appeared clear and dry.

Considering the totality of the circumstances, defendant’s cited cases do not undermine a

determination that probable cause existed.

¶ 85 C. Improper Lane Usage

¶ 86 Defendant’s final contention on appeal is that he was not proved guilty beyond a reasonable

doubt of improper lane usage. He notes that not every lane departure is a violation and the State

failed to show that he did not travel out of his lane due to road conditions or to avoid a collision.

As this argument challenges the sufficiency of the evidence, we will review it under the Collins

standard set forth above. Collins, 106 Ill. 2d at 261.

¶ 87 Section 11-709(a) of the Illinois Vehicle Code (Code) requires that a vehicle “be driven as

nearly as practicable entirely within a single lane and shall not be moved from such lane until the

driver has first ascertained that such movement can be made with safety.” 625 ILCS 5/11-709(a)

(West 2022). The language “as nearly as practicable” indicates that section 11-709(a) is not a strict

liability provision. People v. Hackett, 2012 IL 111781, ¶ 27. As such, the State must show that a

driver departed from his lane when it was feasible to remain within it. Id. Accordingly, “[t]his

language makes clear that applying the statute requires a case-by-case assessment of the

surrounding circumstances, including whether conditions such as weather, road hazards, or other

obstacles justified the lane deviation.” Id.

- 40 - ¶ 88 In the present case, the evidence was sufficient to prove defendant guilty of improper lane

usage beyond a reasonable doubt. As noted above, there was sufficient corroborating evidence to

prove that defendant was driving the truck. Further, the trial court could reasonably conclude that

it was practicable for defendant to remain within his lane and that his departure from the roadway

was not caused by weather conditions or another external hazard. Loyd testified that the roads

were clear and that only the shoulders and sides of the road were covered in snow and ice. He

further testified that he had no trouble driving his squad car to the scene. The trial court found

Loyd’s testimony credible and also observed that the video showed the roadways to be clear and

dry. Viewing the evidence in the light most favorable to the State, a rational trier of fact could find

beyond a reasonable doubt that defendant moved outside his lane and drove his truck into the

snowbank on the side of the road. Slinkard, 362 Ill. App. 3d at 857 (a criminal conviction may be

based on circumstantial evidence as long as “all the evidence considered collectively satisfies the

trier of fact beyond a reasonable doubt that the defendant is guilty”). Although defendant argues

that he may have left the roadway because of weather conditions or to avoid a collision, the trier

of fact was not required to accept those speculative explanations or draw inferences most favorable

to defendant. See People v. Martin, 401 Ill. App. 3d 315, 323 (2010).

¶ 89 III. CONCLUSION

¶ 90 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County.

¶ 91 Affirmed.

- 41 -