People v. Reyes

2023 IL App (1st) 211497-U

Opinion

2023 IL App (1st) 211497-U No. 1-21-1497 August 8, 2023 SECOND DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 20 CR 12652 ) HERMINO REYES, ) Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge, presiding.

JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for driving under the influence of alcohol over his contention that the State failed to prove him guilty beyond a reasonable doubt.

¶2 Following a bench trial, defendant Hermino Reyes was found guilty of aggravated driving

under the influence of alcohol (DUI) and felony driving while his driver’s license, permit, or

privilege to operate a motor vehicle was suspended or revoked and sentenced to concurrent terms No. 1-21-1497

of six and three years’ imprisonment, respectively. 1 On appeal, defendant contends that the State

did not present sufficient evidence that he was intoxicated. We affirm.

¶3 Defendant was charged by information with seven counts of aggravated DUI and six counts

of felony driving while his driver’s license, permit, or privilege to operate a motor vehicle was

suspended or revoked. Relevant to this appeal, count I for aggravated DUI alleged that defendant

drove or had actual physical control of the vehicle while under the influence of alcohol and had

committed five prior DUI violations, subjecting him to sentencing as a Class X offender. 625 ILCS

5/11-501(a)(2), (d)(1)(A), (d)(2)(E) (West 2020).

¶4 At trial, Chicago police officer Robert Brown testified that he had attended the Chicago

police academy. There, he trained to detect people driving under the influence of alcohol and

received “Breathalyzer technician training.” During his career, he had conducted 400 to 500 DUI

arrests, and administered the standardized field sobriety tests approximately twice more than that.

¶5 At approximately 9 a.m. on December 6, 2020, while driving, Brown observed a vehicle

parked next to a bus stop. As Brown passed the vehicle, his automatic “in-car plate reader” alerted

him that “the registered owner was revoked.” Brown ran the vehicle’s license plate number through

LEADS and discovered defendant owned the vehicle, which then drove away. Brown followed the

vehicle, which was “swerving” within its lane, so he initiated a traffic stop by activating his

emergency equipment. The vehicle stopped.

1 Defendant is referred to as both “Hermino Reyes” and “Herminio Reyes” throughout the record and briefs on appeal. Since all the relevant court documents, including the charging instrument, bear the spelling “Hermino,” we use this spelling as well, for consistency's sake.

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¶6 Brown exited his vehicle and approached the driver’s side of the other vehicle. The driver,

whom Brown identified in court as defendant, opened the door. Brown smelled alcohol on

defendant’s breath, he slurred and mumbled when he spoke, and had red, bloodshot, glassy eyes.

Based on these observations, Brown asked defendant to exit the vehicle and perform the field

sobriety tests. Defendant responded in English and Brown believed that defendant understood

Brown’s questions.

¶7 First, Brown administered the horizontal gaze nystagmus (HGN) test, after confirming with

defendant that there was nothing “wrong with [defendant’s] eyes.” Defendant responded that “no,

he could see okay.” Brown then held a pen approximately one foot from defendant’s eyes and

asked him to follow the movement of the pen with his eyes only. According to Brown, a person

showing three of six possible clues on either eye establishes consumption of alcohol. Defendant

demonstrated three clues on each eye. Defendant also showed “vertical nystagmus,” which Brown

testified “is an indicator of a higher [blood alcohol content] than normal.”

¶8 Brown next administered the one-leg stand test, after asking defendant if anything

prohibited him from doing the test. Defendant showed Brown a scrape on his leg but did not say

that the scrape would stop him from doing the test. Brown administered the test, which defendant

did not complete because he displayed four of eight possible clues for impairment, including using

his arms to balance, starting before Brown finished the instructions, and putting his foot down

repeatedly.

¶9 Lastly, Brown administered the walk-and-turn test, which he demonstrated for defendant.

Defendant showed four of eight possible clues for impairment, including failing to walk “heel to

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toe” and using his arms to balance. According to Brown, the threshold for identifying impairment

with the walk-and-turn test is two out of eight clues.

¶ 10 Brown then asked defendant whether he had been drinking, which defendant initially

denied. Eventually, defendant said that he drank one 16-ounce beer earlier in the evening, and had

a beer for breakfast prior to driving. Defendant swayed as he spoke. Based on the clues from the

standardized field sobriety tests and defendant’s history of driver’s license revocations, Brown

arrested him.

¶ 11 The State published Brown’s dashboard camera and body camera footage depicting the

traffic stop and the standardized field sobriety tests. Both videos are in the record on appeal and

have been viewed by this court.

¶ 12 The dashboard camera footage depicts Brown passing defendant’s vehicle, which is parked

by a bus stop. After a few seconds, Brown returns to defendant’s vehicle, which is now moving,

and follows it. Brown testified that, at that point, he had turned around his vehicle, activated the

emergency lights, and was running defendant’s vehicle plate.

¶ 13 The body camera footage depicts Brown using his vehicle’s computer, which displays an

image of defendant’s vehicle with a red alert which Brown testified signified “revocation.” Brown

then curbs defendant’s vehicle on the right shoulder and approaches the driver’s side door.

Defendant opens the door and speaks to Brown, who informs defendant that his “plates were

coming back revoked.” Defendant denies having identification or drinking alcohol, and Brown

informs defendant he “can kind of smell it.” Brown asks defendant if he can speak English;

defendant responds affirmatively, speaking in accented English.

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¶ 14 After defendant provides his name, Brown returns to his vehicle and inputs defendant’s

name into the computer. The search results display entries for multiple revocations, suspensions,

and DUI offenses, which Brown states on camera go “back to 1994.”

¶ 15 Brown returns to defendant’s vehicle, asks him to exit, and escorts him to the sidewalk.

Defendant states that he had nothing to drink. Brown then administers the HGN test, after

confirming that defendant did not have “anything wrong with his eyes.” Brown holds a pen in front

of defendant’s face and tells him to follow the movement of the pen with his eyes only. The

movements of defendant’s eyes are not clear from the video.

¶ 16 Brown then asks defendant if he had “anything wrong” with his legs. Defendant responds

affirmatively, rolls up his left pant leg, and removes his shoe to show a small wound on his left

ankle. After defendant puts his shoe back on, Brown demonstrates the one-leg stand test. As Brown

begins to explain the test, defendant stands on one leg without being told to do so. Brown tells

defendant to hold his foot six inches from the ground and count to 30. Defendant begins the test,

but he uses his arms to balance and his leg is unstable, so he is unable to complete the test.

¶ 17 Lastly, Brown explains the walk-and-turn test, which he describes as taking nine steps in

one direction, turning, and taking nine steps in the other direction. Brown demonstrates the test,

but his feet are not visible on camera. With defendant off-camera, Brown tells defendant to “hold

on” and defendant can be heard counting in Spanish. Defendant then performs the test by walking

nine steps in one direction, turning, and taking nine steps in the opposite direction. Defendant

walks in a line with his feet directly in front of each other, but with space between his feet.

Defendant also uses his arms to balance during the turn and during the walk back.

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¶ 18 After defendant performs this test, Brown asks defendant again whether he had been

drinking. Defendant responds that “in the morning” he purchased a “big” beer and had been

drinking the previous night. Defendant acknowledges that he was “revoked.” Brown then arrests

defendant.

¶ 19 Brown further testified that after placing defendant into custody, Brown advised him of his

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and transported him to the police

station. Afterward, defendant informed Brown that he drank two beers for breakfast, including one

16-ounce can. Based on his training and experience, Brown believed that defendant was under the

influence of alcohol when he was arrested.

¶ 20 On cross-examination, Brown stated that he followed defendant’s vehicle for

approximately two blocks prior to curbing defendant. Brown observed defendant’s vehicle make

a “small weave” within its lane, but did not notice any traffic violations. Defendant did not stumble

or fall as he exited the vehicle and did not have difficulty walking to the sidewalk.

¶ 21 Brown was trained to administer the field sobriety tests in a 40-hour training, which

occurred approximately 10 years prior to the trial, and he had not taken refresher courses. Brown

agreed that the HGN test shows whether a person has consumed alcohol, but Brown already knew

defendant had done so because Brown smelled alcohol in the vehicle. Defendant paid attention to

Brown’s instructions for the HGN test.

¶ 22 Brown stated that he was mistaken when he said the one-leg stand test had eight clues;

rather, it only had six, with two clues being the threshold for intoxication. Defendant did not fall

during the one-leg stand test. During the walk-and-turn test, defendant followed Brown’s

instructions “[t]o the best of his ability,” and did not fall, stop walking, or turn incorrectly, although

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he did raise his arms during the turn. Brown previously arrested defendant for aggravated DUI in

2016, which Brown remembered during the incident in 2020.

¶ 23 On redirect examination, Brown testified that defendant began the one-leg stand test before

Brown finished explaining it. Defendant refused a Breathalyzer test at the police station.

¶ 24 The State submitted a certified copy of defendant’s Secretary of State abstract, which is

contained in the record and has been viewed by this court. It reflects that defendant’s driver’s

license was revoked on December 6, 2020, and lists multiple arrests and convictions for DUI and

driving on a suspended or revoked license beginning in April 1990. The State also presented a

stipulation that when defendant was arrested, he had six prior violations for driving under the

influence of alcohol, drugs, or other intoxicating compounds, and five convictions and violations

for driving with a suspended license.

¶ 25 In closing, defense counsel argued that Brown did not observe defendant commit any

traffic violations, and Brown’s body camera does not show that defendant’s speech was slurred.

Brown did not “fully pick up on every word” of the exchanges with defendant due to defendant’s

accent. Defendant did not stumble or fall, but performed the field sobriety tests correctly and to

the best of his ability although he was “not a young man” and not in “great shape.” Lastly, the

State did not present direct evidence that defendant could not safely control the motor vehicle, and

the odor of alcohol did not establish that defendant was intoxicated.

¶ 26 The court found defendant guilty of all charges. In relevant part, the court commented that

Brown testified credibly and his body camera footage corroborated his testimony “pretty much

100 percent.” Further, the court commented that the State showed defendant smelled strongly of

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alcohol, admitted to drinking, had bloodshot eyes, and had “somewhat” slurred speech, although

a “language issue” may have been present.

¶ 27 The court further noted that the HGN test showed multiple clues to establish consumption

of alcohol, defendant began the one-leg balance test before Brown told him to begin, and defendant

used his hands to help balance but had difficulty balancing. Defendant generally performed the

first nine steps of the walk-and-turn test correctly, although he elevated his arms to turn. On the

other nine steps, defendant was rushing and did not do the test correctly because his feet were

spaced apart and not perfectly aligned. The court could not “find a flaw” with the officer’s

assessment that defendant failed the one-leg stand and walk-and-turn tests. Lastly, defendant

refused the Breathalyzer test, which showed a consciousness of guilt.

¶ 28 Defense counsel filed a “motion to reconsider finding of guilty,” arguing that the evidence

was insufficient to support a conviction for DUI. Counsel argued that the court should give little

weight to defendant’s performance on the field sobriety tests, because defendant was a Spanish

speaker and the officer was not, and the court erred in allowing Brown to testify that the HGN test

results showed that defendant’s blood alcohol content was higher than “normal.”

¶ 29 The court denied the motion, finding the evidence supported that defendant was intoxicated

and thus guilty of aggravated DUI. The court commented that it viewed the video and did not

believe that a language barrier contributed to defendant not understanding Brown’s commands.

¶ 30 After a hearing, the court merged the aggravated DUI and driving with a suspended license

counts into one count of each charge, and sentenced defendant to six years’ imprisonment on count

I for aggravated DUI as a Class X offender, concurrent to three years’ imprisonment on the driving

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with a suspended license charge (count VIII). Defendant did not file a motion to reconsider

sentence.

¶ 31 On appeal, defendant argues that the State failed to prove him guilty of aggravated DUI

because the “only” evidence that he was intoxicated comprised “unreliable” field sobriety tests

which were administered incorrectly. 2

¶ 32 The standard of review for a challenge to the sufficiency of the evidence is “whether,

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

found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks

omitted.) People v. Belknap, 2014 IL 117094, ¶ 67. The trier of fact resolves conflicts in the

testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.

People v. Brown, 2013 IL 114196, ¶ 48. Accordingly, this court will not substitute its judgment

for that of the trier of fact on the weight of the evidence or credibility of witnesses. Id. A reviewing

court must allow all reasonable inferences from the record in favor of the prosecution (People v.

Cunningham, 212 Ill. 2d 274, 280 (2004)) and will not reverse a conviction unless the evidence is

“unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s

guilt.” (Internal quotation marks omitted.) People v. Jackson, 232 Ill. 2d 246, 281 (2009).

¶ 33 To sustain defendant’s conviction for DUI, the State had to prove beyond a reasonable

doubt that he was driving or in the actual physical control of a vehicle while “under the influence

of alcohol.” 625 ILCS 5/11-501(a)(2) (West 2020). “[A]ggravated DUI occurs when an individual

commits some form of misdemeanor DUI *** and other circumstances are present,” which are

2 On appeal, defendant does not challenge his conviction for felony driving while his driver’s license, permit, or privilege to operate a motor vehicle was suspended or revoked.

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outlined in the statute. People v. Quigley, 183 Ill. 2d 1, 10 (1998). Relevant here, aggravated DUI

occurs when the person commits DUI “for the third or subsequent time.” 625 ILCS 5/11-

501(d)(1)(A) (West 2020). Defendant only challenges the State’s evidence that he was under the

influence of alcohol.

¶ 34 “ ‘A person is under the influence of alcohol when, as a result of drinking any amount of

alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act

with ordinary care.’ ” People v. Morris, 2014 IL App (1st) 130512, ¶ 20 (quoting Illinois Pattern

Jury Instructions, Criminal, No. 23.29 (4th ed. 2000)). “To be under the influence of alcohol, a

defendant must be under the influence to a degree that renders [him] incapable of driving safely.”

People v. Groebe, 2019 IL App (1st) 180503, ¶ 57. The State is not required to submit scientific

proof to establish a defendant’s intoxication and may rely solely upon circumstantial evidence. Id.

¶ 58. The credible testimony of the arresting police officer alone is sufficient to sustain a DUI

conviction. People v. Elliott, 337 Ill. App. 3d 275, 281 (2003). Relevant and admissible evidence

related to intoxication includes testimony that the defendant’s breath smelled of alcohol, or the

defendant’s eyes were glassy and bloodshot. Morris, 2014 IL App (1st) 130512, ¶ 20. “A

defendant’s refusal to submit to chemical testing shows a consciousness of guilt.” Id.

¶ 35 Viewing the evidence in the light most favorable to the State, and allowing all reasonable

inferences in favor of the State, a rational trier of fact could find beyond a reasonable doubt that

defendant was under the influence of alcohol. The evidence established that Brown observed

defendant driving his vehicle, and Brown’s onboard computer established that defendant was

“revoked.” Brown observed defendant’s vehicle swerve within its lane, and after curbing

defendant, smelled alcohol on his breath. Defendant slurred his speech, his eyes were glassy and

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bloodshot, and he failed the field sobriety tests. The video corroborates Brown’s testimony that

defendant failed the field sobriety tests. Lastly, defendant admitted to drinking alcohol, and refused

a Breathalyzer test. This evidence, taken together, was sufficient to prove defendant guilty of

aggravated DUI. See id.

¶ 36 Defendant nevertheless argues that the State did not present sufficient evidence that he was

under the influence of alcohol, because Brown’s observations alone did not establish defendant’s

intoxication and Brown did not administer the field sobriety tests correctly. In support of the latter

proposition, defendant cites extensively to the National Highway Traffic Safety Association’s

(NHTSA) manual describing standard procedures and conditions for administering each test.

¶ 37 As an initial matter, the NHTSA manual was not introduced at trial and, therefore, is not

in the record on appeal. See People v. Guerra, 2020 IL App (1st) 171727, ¶ 28. As the reviewing

court, we will not consider matters outside the record on appeal. See Allstate Insurance Co. v.

Kovar, 363 Ill. App. 3d 493, 499 (2006). Further, “[w]hether a field-sobriety test was performed

correctly goes to the test’s admissibility.” People v. Eagletail, 2014 IL App (1st) 130252, ¶ 39. On

appeal, defendant does not challenge the admissibility of the evidence regarding the field sobriety

tests. Rather, defendant claims that the tests were unreliable because they were performed

incorrectly. Defendant’s contentions thus attack the weight of the evidence, which is a factual issue

for the trial court to resolve. See People v. Phillips, 2015 IL App (1st) 131147, ¶ 24 (“[B]ecause

[the defendant] does not challenge the admissibility of the HGN test on appeal, but rather its

probative value, his challenge goes to the weight accorded to this evidence, which is a factual

determination reserved for the trier of fact.”).

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¶ 38 To that point, defendant first contends that he speaks Spanish and Brown did not ascertain

that defendant fully understood his instructions. However, the video establishes that defendant

understood the instructions for each test as he attempted them as instructed and answered Brown’s

questions accurately. Therefore, we do not find this to be a basis for reversal.

¶ 39 Defendant further claims that Brown was not credible because his testimony about his

observations of the field sobriety tests was “vague, confusing, and incorrect” and he misstated the

observed clues of impairment on each test. According to defendant, Brown’s testimony

contradicted the video, especially regarding the walk-and-turn test, which only supports Brown’s

assertion that two clues existed: that defendant failed to touch heel to toe while walking and used

his arms to balance. Defendant claims the video establishes that he did not start the test too soon

and did not step off the line, lose his balance, or turn incorrectly. Brown testified, however, that

two clues are required to find impairment in the walk-and-turn test, and the video corroborates that

at least two clues were established. Also, the video does not affirmatively establish that defendant

did not start the test too soon, because defendant was off-camera when Brown demonstrated the

test. In fact, Brown can be heard telling defendant to “hold on” as defendant begins to count in

Spanish. A reasonable inference is that defendant had begun the test before Brown demonstrated

it. As such, even if the other clues are not clear from the video, it does not substantially contradict

Brown’s testimony and is not a basis to find him incredible.

¶ 40 Moreover, “it is for the fact finder to judge how flaws in part of the testimony affect the

credibility of the whole.” Cunningham, 212 Ill. 2d at 283. The trier of fact may accept or reject all

or part of a witness’s testimony. People v. Corral, 2019 IL App (1st) 171501, ¶ 85. The court heard

Brown’s testimony, including the purported inconsistencies with the video, and accepted it. Thus,

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defendant’s contention that Brown was not credible is merely a request for this court to reweigh

the evidence and assess Brown’s credibility. We find no reason to disturb the court’s credibility

determinations. See Brown, 2013 IL 114196, ¶ 48.

¶ 41 Lastly, defendant claims his obesity influenced the one-leg stand test, noting the NHTSA

manual acknowledges that people who are more than 50 pounds overweight have difficulty

performing the one-leg stand test. However, neither the NHTSA manual nor evidence of

defendant’s weight were presented at trial, and thus we will not consider this claim for the first

time on appeal. See Kovar, 363 Ill. App. 3d at 499.

¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 43 Affirmed.

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