People v. Racila

2018 IL App (3d) 170361

Opinion

2018 IL App (3d) 170361

Opinion filed December 18, 2018 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff- Appellant, ) ) Appeal No. 3-17-0361 v. ) Circuit No. 17-DT-404

)

LOUIS A. RACILA, ) Honorable

) Carmen J. Goodman, Defendant- Appellee. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Louis A. Racila, filed a petition to rescind the summary suspension of his

driver’s license following his arrest for driving under the influence of alcohol (DUI) (625 ILCS

5/11-501(a)(2) (West 2016)). The trial court granted the petition, and the State appeals. We

reverse and remand with instructions.

¶2 On April 6, 2017, Officer Benjamin Gilbert stopped defendant for speeding and cited him

for DUI. As a result, defendant received notice of summary suspension of his driver’s license.

Gilbert’s sworn report stated that defendant was driving 16 miles per hour over the posted speed

limit, had open cans of alcohol in his vehicle, displayed slurred speech, and had glassy and watery eyes. The report also indicated that defendant had not completed the standardized field

sobriety tests as instructed. Defendant filed a petition to rescind the summary suspension,

alleging, among other things, that the officer did not have reasonable grounds to believe that he

had been driving under the influence of alcohol.

¶3 At the hearing, Gilbert testified that he “clocked” defendant’s vehicle traveling 46 miles

per hour in a 30 mile-per-hour zone. He made a U-turn and followed defendant’s vehicle for a

few blocks before pulling him over. He approached defendant’s side of the vehicle and had a

brief conversation with him. Gilbert testified that defendant responded appropriately to his

questions but characterized his speech as “slurred.” Defendant gave Gilbert his driver’s license

but could not find proof of insurance in the vehicle. Gilbert then asked defendant to exit the

vehicle, and defendant cooperated with his request. He told defendant he was going to perform

some field sobriety tests. He performed the horizontal gaze nystagmus (HGN) test. He then

asked defendant to complete the walk-and-turn test. Gilbert testified that defendant had difficulty

keeping his right foot in front of his left during the instruction phase and lifted his arms to help

keep his balance as he completed the test.

¶4 Next, Gilbert administered the one-leg-stand test. Gilbert told defendant to start counting

when he lifted his leg. Defendant started to sway around the number 13; at 16, he started hopping

to his left. Gilbert then asked defendant to complete a breath test, after which Gilbert placed

defendant under arrest for DUI.

¶5 On cross-examination, Gilbert testified that he had received and passed DUI training at

the police academy. He stated that, when he initially spoke with defendant, he noticed that

defendant had glassy, watery eyes and slurred speech. He also detected the odor of alcohol

emitting from defendant’s breath. In addition, he noticed a case of beer and three open beer cans

lying in the back seat of the car.

¶6 Gilbert then explained the field sobriety tests in greater detail. He stated that during the

HGN test, defendant exhibited a “lack of smooth pursuit” with distinct and sustained nystagmus

at maximum deviation. He testified that the HGN test has six factors that indicate consumption

and defendant exhibited all six. Regarding the walk-and-turn test, Gilbert testified that defendant

began the test prior to the completion of his instructions. Defendant was told three times to keep

his feet placed on an imaginary line before he was able to do so. While defendant was in the

starting position, he was unable to maintain his balance, stepped off the line, and once again

started the test without being told to do so. During the test, defendant made an improper turn,

used his arm for balance and stepped off the line. Gilbert testified that two or three of the eight

factors in the walk-and-turn test typically indicate impairment and defendant exhibited five.

Finally, Gilbert testified that the one-leg-stand test requires a minimum of two factors to indicate

impairment and defendant indicated four.

¶7 Gilbert asked defendant to take a breath test using a portable device (PBT). The PBT

registered a blood concentration of 0.099. Gilbert asked defendant when defendant had his last

drink, and defendant responded 2 p.m. Gilbert testified that at that point he was of the opinion

that defendant had consumed alcoholic beverages and could not safely operate a motor vehicle.

¶8 The video from Gilbert’s squad car was also admitted into evidence. In the video, Gilbert

asks defendant if he has consumed any alcohol or drugs. Defendant says, “No, absolutely not.”

Gilbert then asks if defendant has any previous tickets or convictions. Defendant responds, “No,

not in the last five years…I mean I had a DUI in 2012.” Gilbert says “ok, but nothing else,” and

defendant says, “No.” He then asks defendant and the passenger, “What’s going on with the open

beer cans in the back?” Defendant says that he and the passenger had them at work. The

passenger says, “I drank them. That’s why he’s driving and I’m not.” Gilbert goes to his squad

car and then returns and asks defendant to exit the vehicle. Defendant does so voluntarily,

without incident, and they both walk to the back of defendant’s car. Gilbert informs defendant

that he is going to have him take a few tests.

¶9 During the walk-and-turn test, defendant has trouble standing on a straight line while he

is waiting for instructions. He asks Gilbert if he can take his shoes off, and Gilbert says, “Sure.”

Defendant starts the test before Gilbert is finished with the instructions. He then apologizes and

goes back to the starting position. Gilbert moves to the side so defendant can walk forward.

Defendant sways to the right, loses his balance, and moves his right foot off to the side to

maintain his equilibrium. He then starts the test again before he is told to do so. Once he starts

the test, he uses his arms to stay balanced and steps off the line twice to keep from losing his

footing. On the one-leg-stand test, defendant loses his balance as he counts past 13 and then hops

to the left several times as he counts to 17 and 18. As he starts to fall to the left, he puts his foot

down and stops the test. Gilbert then tells defendant to stay put and walks back to his squad car.

When he returns from the squad car, he has a portable device in his hand and asks defendant to

blow into it. Defendant agrees to do so and blows into the tube. Gilbert again asks defendant how

many drinks he has had. Defendant admits that he drank alcohol but says that he had his last

drink at 2 p.m. Gilbert asks defendant to put his hands behind his back and informs him that he is

under arrest for DUI. At the end of Gilbert’s testimony, the State moved for a directed finding,

which the trial court denied.

¶ 10 During the State’s case-in-chief, Gilbert testified that he stopped defendant’s vehicle

around 7 p.m. Defendant’s first response regarding how much alcohol he had consumed was that

he had nothing to drink, but he later responded that he had a beer at 2 p.m. When asked why he

gave the officer conflicting responses, defendant replied, “I do not recall why I did that.” He

admitted that he had two beers around 2 p.m.

¶ 11 The trial court found in favor of defendant and granted the petition to rescind. Regarding

the field sobriety tests, the court stated that “[t]he fields are just a factor. A lot of people can’t do

the fields.” It acknowledged, however, that having open alcohol would be a factor along with the

field sobriety tests. As for the field sobriety tests, the court stated that it “didn’t see any balance

problems whatsoever.” The court found that Gilbert lacked probable cause to arrest defendant for

DUI and granted the petition to rescind his summary suspension.

¶ 12 ANALYSIS

¶ 13 The State argues that the trial court erred in granting the petition to rescind defendant’s

statutory summary suspension. Specifically, the State contends that the evidence at the hearing

established that Gilbert had reasonable grounds to believe defendant committed a DUI violation.

¶ 14 At a hearing to rescind statutory summary suspension, a defendant carries the burden of

making a prima facie case for rescission. People v. Kavanaugh, 362 Ill. App. 3d 690, 695 (2005).

Once the defendant has done so, the burden of presenting evidence to justify the suspension

shifts to the State. Id. A reviewing court must be deferential to the trial court’s factual findings

and reverse those findings only if they are against the manifest weight of the evidence. People v.

Wear, 229 Ill. 2d 545, 561 (2008). A reviewing court is free, however, to assess the facts and

draw conclusions and, thus, review de novo the legal ruling on whether a petition to rescind

should have been granted. Id. at 562.

¶ 15 The issue at the summary suspension hearing in this case was whether the arresting

officer had reasonable grounds to believe that defendant was driving while under the influence of

alcohol. In this context, “reasonable grounds” is synonymous with “probable cause.” Id. at 560.

“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.” Id. at 563. A probable cause determination must be based upon the totality of the

circumstances and must rise to a level higher than mere suspicion but less than proof beyond a

reasonable doubt. People v. Lee, 214 Ill. 2d 476, 484 (2005). As this court has noted:

“ ‘Probable cause to arrest a motorist for DUI has been commonly

established by the testimony of the arresting officer, in spite of the defendant’s

contradictory testimony, that the motorist had about him or her the odor or strong

odor of alcohol, had slurred speech or had red and glassy eyes. [Citations.]

Generally, these observations are supplemented by other observations apparent to

the officer or inferred from his observations such as speeding, weaving, erratic

driving, driving on the wrong side of the road, being stuck in a ditch [citation] or

*** being in a vehicle which is stuck in the mud.’ ” (Emphasis omitted.) People v.

Day, 2016 IL App (3d) 150852, ¶ 36 (quoting People v. Wingren, 167 Ill. App. 3d

313, 320-21 (1988)).

¶ 16 Here, Gilbert testified that he smelled the odor of alcohol on defendant’s breath and that

defendant had glassy, watery eyes. He further testified that defendant failed the HGN test and

struggled with balance on both the walk-and-turn test and the one-leg-stand test. The video

supports the officer’s assessment of defendant’s performance. On the video, defendant stumbles

to the right and loses his balance during the walk-and-turn test and hops to the left and puts his

foot down to maintain his balance on the one-leg-stand test. In addition, defendant had open cans

of beer in his vehicle and admitted that he had consumed alcohol. Given defendant’s physical

signs of alcohol consumption, open cans of alcohol in the vehicle, admission of alcohol

consumption, and failed field sobriety tests, Gilbert had reasonable grounds to believe defendant

was driving under the influence of alcohol.

¶ 17 In People v. Rush, 319 Ill. App. 3d 34 (2001), the defendant was arrested for DUI and

served with a written notice of statutory summary suspension. Defendant moved to suppress the

State’s evidence and filed a petition to rescind his suspension, arguing that the arresting officer

did not have reasonable grounds to believe that he was driving under the influence of alcohol.

Rush, 319 Ill. App. 3d at 35. The trial court granted the defendant’s motion and petition to

rescind, and the State appealed. The appellate court found that the officer had probable cause to

arrest the defendant for DUI when the defendant had slurred but understandable speech, smelled

strongly of alcohol, admitted to drinking several beers the night before, had open alcohol in his

car, failed one of the field sobriety tests, had “jerking” eyes during the HGN test, and registered

an alcohol concentration of 0.07 on the preliminary breath test. Id. at 40-41. In this case,

defendant exhibited similar indicators of impairment, with the addition of a higher preliminary

breath test reading and failing all the administered field sobriety tests. These facts demonstrate

that Gilbert had probable cause to arrest defendant for DUI. Thus, the trial court erred in granting

the petition to rescind the statutory summary suspension.

¶ 18 In support of his contention that Gilbert did not have probable cause to arrest him for

DUI, defendant cites Day, 2016 IL App (3d) 150852. However, this case is readily

distinguishable. In Day, the defendant was pulled over for excessive noise emanating from his

exhaust pipe; no other driving infractions were noted. In addition, the field tests were

administered in the rain, and the arresting officer admitted that they should have been given on a

flat, dry surface. This court determined that the field sobriety tests were administered in an

improper fashion due to the officer requesting that they be performed on a wet surface in the

rain. We stated that the improper administration significantly impaired the probative weight that

could be given to those tests. We concluded that the defendant’s performance of the field

sobriety tests did not give the arresting officer probable cause to arrest him for DUI and that the

defendant’s consumption of alcohol and his bloodshot eyes, without more, did not give the

officer reason to believe the defendant had been driving under the influence of alcohol. Day,

2016 IL App (3d) 150852, ¶ 38.

¶ 19 In this case, the facts are distinguishable. The field sobriety tests given to defendant were

not administered in the rain or in an otherwise improper manner. As demonstrated in the video,

the weather was clear, and the pavement was dry and level. Moreover, there are additional facts

that support defendant’s arrest for DUI. Specifically, defendant was stopped for speeding, which

is an observation that supplements other observations made by an officer in support of probable

cause to arrest a motorist for DUI. See Rush, 319 Ill. App. 3d at 35. Defendant’s breath also

smelled of an alcoholic beverage, he had open cans of beer in the car, and he admitted that he

had been drinking. These additional factors, which were not present in Day, support Gilbert’s

probable cause to arrest defendant for a DUI violation.

¶ 20 Under the circumstances, we conclude that Gilbert had probable cause (or reasonable

grounds) to believe that defendant had been operating a motor vehicle while under the influence

of alcohol. We therefore reverse the trial court’s order granting defendant’s petition to rescind.

¶ 21 CONCLUSION

¶ 22 The judgment of the circuit court of Will County is reversed, and the cause is remanded

to the trial court to enter an order denying defendant’s petition to rescind.

¶ 23 Reversed and remanded.