People v. West

2021 IL App (4th) 200461-U

• Court: Appellate Court of Illinois
• Decided: November 17, 2021
• Docket: 4-20-0461
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2021 IL App (4th) 200461-U FILED Supreme Court Rule 23 and November 17, 2021 is not precedent except in the NO. 4-20-0461 Carla Bender limited circumstances 4th District Appellate allowed under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) McLean County JUSTIN WEST, ) No. 20DT191 Defendant-Appellee. ) ) Honorable ) Pablo A. Eves, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Justice Steigmann concurred in the judgment. Justice Cavanagh dissented.

ORDER ¶1 Held: The appellate court reversed, concluding the trial court erred by concluding the officer lacked reasonable grounds to believe defendant was under the influence of alcohol.

¶2 In April 2020, defendant, Justin West, was charged by traffic citation and

complaint with driving under the influence of alcohol (DUI) and was served with a statutory

summary suspension. Defendant filed a petition to rescind the summary suspension, alleging the

arresting officer lacked reasonable grounds to believe defendant was under the influence. The

trial court concluded the results of the portable breath test (PBT) were inadmissible due to

inadequate foundation. The court further found the officer lacked sufficient reasonable grounds

to believe defendant was under the influence of alcohol and granted defendant’s petition to

rescind the statutory summary suspension of his driver’s license. ¶3 The State appeals, arguing the trial court erred by (1) excluding the results of the

PBT and (2) finding there were no reasonable grounds to arrest defendant for DUI. For the

following reasons, we reverse the trial court’s judgment.

¶4 I. BACKGROUND

¶5 In April 2020, defendant was charged by traffic citation and complaint with DUI

and was served with a statutory summary suspension. Defendant filed a petition to rescind the

summary suspension, alleging the arresting officer lacked reasonable grounds to believe

defendant was driving while under the influence.

¶6 Officer Tyler Vanwynsburg issued defendant traffic citations for DUI and driving

the wrong way on a one-way street. Vanwynsburg’s sworn report indicated he had reasonable

grounds to believe defendant was driving under the influence based on defendant driving the

wrong way down a one-way street, admitting to drinking, having red eyes, performing poorly on

field sobriety tests, and taking a PBT resulting in a blood alcohol concentration (BAC) of 0.125.

¶7 In May 2020, a confirmation of statutory summary suspension was sent to

defendant. In June 2020, defendant filed a petition to rescind the statutory summary suspension,

alleging the arresting officer lacked reasonable grounds to believe defendant was driving upon a

public highway while under the influence of alcohol.

¶8 The trial court held a hearing on the petition to rescind summary suspension on

three nonconsecutive days. After defendant met his burden of proving a prima facie case for

rescission, the court heard the following relevant evidence.

¶9 Vanwynsburg was in uniform and on patrol in a marked squad car near College

Avenue and Mulberry Street in Normal, Illinois, at approximately 8:35 p.m. on the evening in

question. Vanwynsburg saw and stopped the driver of a red pickup truck—later identified as

-2- defendant—driving the wrong direction on a one-way street, although he immediately moved to

correct his error. Vanwynsburg testified defendant otherwise obeyed traffic laws and

appropriately curbed his vehicle when Vanwynsburg pulled him over. Defendant gave the

officer conflicting information about where he was going and where he was coming from.

Defendant appeared nervous and admitted to drinking wine 20 minutes earlier. Vanwynsburg

testified defendant was polite and cooperative, did not have slurred speech, and did not smell of

alcohol.

¶ 10 According to Vanwynsburg, he administered an abbreviated horizontal gaze

nystagmus (HGN) test, during which Vanwynsburg noted defendant’s “eyes appeared red and he

had some jerking to his eyes at maximum deviation.” Based on his observations, Vanwynsburg

returned to his patrol car and called for backup. Vanwynsburg then had defendant perform field

sobriety tests. Defendant performed the field sobriety tests on a hard surface road, lit with

Vanwynsburg’s flashlight, with minimal traffic.

¶ 11 Vanwynsburg was qualified to administer the field sobriety tests and testified

there are six “clues” the HGN test can reveal. If at least four of the clues are present, the officer

can give another field sobriety test. Vanwynsburg testified he administered the HGN test on

defendant but he later noticed an error he made. On the night in question, Vanwynsburg noticed

four clues: “[l]ack of smooth pursuit in both eyes and jerking and sustained nystagmus in both

eyes.” However, Vanwynsburg testified he took longer than prescribed while testing the lack of

smooth pursuit. Vanwynsburg testified defendant displayed two clues during the HGN test,

although he thought there were four clues at the time.

¶ 12 Vanwynsburg next administered the walk-and-turn test. The walk-and-turn test

detects an individual’s lack of motor skills and inability to concentrate. A threshold of two clues

-3- were needed to move to another field sobriety test. Vanwynsburg noted four clues during the

walk-and-turn test: “He stepped off the line multiple times. He stopped walking at one point.

He made an improper turn and missed heel to toe.”

¶ 13 Vanwynsburg next administered the one-leg stand test. Out of a maximum of

four clues, two clues met the threshold. At the time he administered the test, Vanwynsburg

noticed one clue. After reviewing the video and report of the arrest, Vanwynsburg noticed a

second clue of impairment—defendant used his arms to balance.

¶ 14 Vanwynsburg again asked defendant how much he had to drink, and defendant

admitted to drinking a vodka and vitamin water at approximately 11 a.m. Vanwynsburg asked

defendant to take a PBT, and according to Vanwynsburg, “He said that he would fail and that he

was impaired.” Vanwynsburg testified he was trained to operate the PBT machine, which was a

model approved for police officers to use and was issued to Vanwynsburg by the Normal Police

Department. According to Vanwynsburg, the PBT was regularly tested for accuracy. The

following exchange occurred:

“Q. How often is the [PBT] machine—and how often is the

[PBT] machine tested for accuracy?

A. On a 90-day cycle.

Q. Do the sergeants at the Normal Police Department

check—sorry, test the machine for accuracy?

A. It[’]s assigned to one sergeant at a time but, yes.

Q. Why is it assigned to one sergeant at a time?

A. He’s trained to do that test.

-4- Q. Was the [PBT] machine that you used that night tested

for accuracy prior pursuant to policy?

A. Yes.

Q. Was that PBT machine accurate on that date that you

used it?

A. Yes. It was issued back to me after it had been turned in

for calibration. So, yes.”

Just before Vanwynsburg testified as to the result of the PBT, defense counsel objected based on

foundation. Defense counsel argued the officer testified someone else calibrated the PBT

machine and he assumed whoever performed the calibration did it properly. The State argued a

sufficient foundation had been laid. The trial court made a preliminary ruling that there was “an

insufficient basis for admission of this based on the lack of foundation.” The court noted the

foundation could be rectified if admission of the PBT results was important for the State. The

court clarified its view of the inadequate foundation as follows:

“I did not hear any evidence or testimony regarding that the test

was conducted to obtain one breath sample by completing the

operation and pressure you programed into the instrument. Nor

did I hear any evidence regarding what the test consisted of

regarding decimal points and messages regarding whether or not

there was any malfunction. Those are provisions that, perhaps, are

something that we will be able to provide.”

¶ 15 At the continued hearing, Vanwynsburg testified he used a PBT called an

Alco-Sensor FST, which was approved for use by police officers. According to Vanwynsburg,

-5- the PBT was tested for accuracy on a 90-day cycle and was, to his knowledge, accurate because

it was provided by his sergeant. Vanwynsburg followed the prompts on the PBT machine, and

defendant submitted a breath sample. Defense counsel again objected to the foundation for the

PBT results. The trial court sustained the objection.

¶ 16 The trial court discounted the portion of the HGN test Vanwynsburg administered

incorrectly. Although there were sufficient clues on the walk-and-turn test, there was only a

single clue on the one-leg stand test. The court stated, “So really one out of three areas of the

standardized field sobriety tests is all that we have right now from the standardized test.” The

court noted that, although defendant briefly drove the wrong way down a one-way street, he

quickly corrected his error and had no other problems driving, even though he had a number of

opportunities to display difficulties.

¶ 17 When Vanwynsburg pulled defendant over, there was no odor of alcohol, no

trouble providing a driver’s license and insurance, and no slurred speech. Defendant’s admission

to drinking wine 20 minutes earlier was enough to allow Vanwynsburg to administer field

sobriety tests. However, the court disagreed with Vanwynsburg’s assessment of the sobriety

tests, stating, “[I]t’s the conclusion after administering those tests, particularly given the HGN as

discounted and was not actually a fail, and the one-leg stand also, the first time through also was

not a fail, given that the walk-and-turn was the only thing that corroborated, at least in my mind,

what the previous testimony or previous observations had been by the officer.”

¶ 18 The trial court reiterated it sustained the objection to the PBT results for lack of

foundation. The court concluded defendant established the grounds for rescission by a

preponderance of the evidence and the State failed to rebut those grounds. The court granted the

petition to rescind the statutory summary suspension.

-6- ¶ 19 After the court granted defendant’s petition to rescind statutory summary

suspension, the State filed a motion to reconsider. When ruling on the State’s motion to

reconsider, the trial court stated its belief that the State was required to lay an adequate

foundation for the PBT results. In part, the court stated, “[U]nder the Administrative Code the

State failed to provide a full foundation required for admission of the PBT results, although I

don’t think it was by identifying the actual device. That was not the Court’s concern on that, but

rather the Administrative Code. I believe they did identify the device in the evidence.” The

court denied the State’s motion to reconsider.

¶ 20 This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, the State argues the trial court erred by (1) excluding the results of the

PBT and (2) finding there were no reasonable grounds to arrest defendant for DUI. Because we

find the issue of whether the officer had reasonable grounds to believe defendant was under the

influence of alcohol dispositive, we address the State’s second claim first.

¶ 23 “A motorist whose driving privileges have been summarily suspended may

request a judicial hearing to seek rescission of the suspension.” People v. Acevedo, 2017 IL App

(3d) 150750, ¶ 10, 74 N.E.3d 95. One ground for the rescission of the suspension is that the

arresting officer did not have reasonable grounds to believe the person was driving while under

the influence of alcohol, drugs, or both. 625 ILCS 5/2-118.1(b)(2) (West 2020). A hearing on a

petition to rescind a summary suspension is civil in nature, and the defendant bears the burden of

proving a prima facie case for rescission. People v. Gutierrez, 2015 IL App (3d) 140194, ¶ 14,

38 N.E.3d 521.

-7- ¶ 24 The State argues the trial court erred by finding no reasonable grounds for arrest.

Defendant argues the State has forfeited this argument by failing to raise it before the trial court

and preserve it in a postjudgment motion. Although during the hearing on the petition to rescind

the State argued reasonable grounds to believe defendant was under the influence did exist, the

State’s motion to reconsider focused on the foundation for the PBT, as did the State’s argument

during the motion to reconsider. This was consistent with the purpose of a motion to reconsider,

which, in this instance, was to bring to the court’s attention to any errors in the court’s previous

application of existing law. People v. Olson, 2013 IL App (2d) 121308, ¶ 8, 992 N.E.2d 610.

Even so, the motion did ask the court to reconsider the ruling granting the petition to rescind

statutory suspension. As noted by the trial court, the petition to rescind alleged the officer lacked

reasonable grounds to believe defendant was under the influence. The court went on to suggest

the result of the PBT was “part of or built into the finding of reasonable grounds or a prima facie

case, if you will, as alleged in the petition, and then in my opinion carried by the defendant on

the first side of the case.” While the court was discussing whether or not defendant carried his

initial burden, the comment demonstrates the court had the opportunity to, and did, consider the

reasonable grounds issue. Thus, we find the State avoided forfeiture.

¶ 25 In the context of statutory summary suspension and probable cause, the Illinois

Supreme Court stated, in relevant part, as follows:

“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.

[Citation.] That is, the existence of probable cause depends upon

the totality of the circumstances at the time of the arrest.

-8- [Citations.] ‘ “In dealing with probable cause, *** we deal with

probabilities. These are not technical; they are the factual and

practical considerations of everyday life on which reasonable and

prudent men, not legal technicians, act.” ’ [Citations.]” People v.

Wear, 229 Ill. 2d 545, 563-64, 893 N.E.2d 631, 642-43 (2008)

(abrogated on other grounds by Lange v. California, 594 U.S. ___,

141 S. Ct. 2011 (2021)).

An officer must have more than a mere suspicion, but sufficient evidence for a conviction is not

required. People v. Quigley, 2018 IL App (1st) 172560, ¶ 34, 122 N.E.3d 705. “Indeed,

probable cause does not even demand a showing that the belief that the suspect has committed a

crime be more likely true than false.” Wear, 229 Ill. 2d at 564.

¶ 26 We give deference to the trial court’s findings of fact and reverse those findings

only if they are against the manifest weight of the evidence. People v. Luedemann, 222 Ill. 2d

530, 542, 857 N.E.2d 187, 195 (2006). “A reviewing court, however, remains 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.” Id. “[T]he ultimate legal ruling regarding rescission is

reviewed de novo.” People v. Gocmen, 2018 IL 122388, ¶ 21, 115 N.E.3d 153.

¶ 27 Here, the officer observed defendant drive the wrong direction on a one-way

street. Although the trial court highlighted the fact that defendant committed no other traffic

violations, we must examine the totality of the circumstances. Vanwynsburg testified

defendant’s eyes were red and he administered an abbreviated HGN test to defendant that

indicated possible impairment. Vanwynsburg then asked defendant to exit his vehicle to perform

field sobriety tests. According to Vanwynsburg, he administered an HGN test to defendant that

-9- revealed four clues of impairment. Vanwynsburg later testified that he administered one portion

of the test too slowly. Based on this testimony, the trial court completely discounted the results

of the HGN test. However, at the time of arrest, Vanwynsburg believed the HGN test included

four clues of impairment. We realize that at trial the HGN test results would likely not be

admissible. However, in evaluating reasonable grounds, we look to the facts known to the

officer at the time the arrest was made. People v. Chapman, 194 Ill. 2d 186, 217, 743 N.E.2d 48,

67 (2000). Thus, we decline to utilize hindsight to determine defendant should not have been

subjected to the walk-and-turn-test. Also, there is no suggestion of misconduct or nefarious

intent by the officer. The walk-and-turn test revealed four clues of impairment: defendant

stepped off the line multiple times, stopped walking at one point, made an improper turn, and

missed heel to toe. According to Vanwynsburg’s testimony, only two clues on the walk-and-turn

test indicated impairment. The trial court dismissed the unsuccessful completion of the walk-

and-turn test because it was the only field sobriety test that indicated impairment. The court’s

dismissal of this evidence was against the manifest weight of the evidence where the walk-and-

turn test revealed four indicators of impairment, twice as many clues as necessary to indicate

impairment.

¶ 28 Our review of the record indicates that Vanwynsburg knew of eight total clues of

impairment at the time he arrested defendant—four indicators from the HGN test and four from

the walk-and-turn test. In addition, defendant admitted he drank wine 20 minutes before driving

and vodka earlier in the day. Finally, when Vanwynsburg asked defendant to take the PBT,

defendant said he would fail the test because he was impaired. Based on the totality of the

circumstances and the facts known to the officer at the time of arrest, we conclude the officer had

- 10 - reasonable grounds to believe defendant was under the influence of alcohol. Accordingly, we

reverse the judgment of the trial court.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we reverse the trial court’s judgment.

¶ 31 Reversed.

¶ 32 JUSTICE CAVANAGH, dissenting:

¶ 33 I respectfully disagree with the majority’s analyses and conclusions as to (1) the

State’s forfeiture of any argument relative to whether there were reasonable grounds for the

traffic stop and (2) the reversal of the trial court’s ruling of no reasonable grounds for the DUI

arrest.

¶ 34 As noted by the majority, the State’s motion to reconsider was devoid of

argument relative to reasonable grounds. Instead, the State argued the trial court incorrectly

refused to consider the PBT result due to the absence of an adequate foundation. Likewise, the

State’s argument at the hearing on the motion to reconsider addressed the PBT admission.

Specifically, the State’s motion asked the court to “reconsider its previous ruling to allow the

admission of the PBT results.” During the hearing on the motion, the State twice asked the court

to reconsider its ruling on the PBT.

¶ 35 Because a summary suspension hearing is a civil proceeding, we look to those

standards relative to forfeiture. It is well-established that issues not raised before a trial court are

forfeited on appeal. 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL

118372, ¶ 14. This rule’s purpose is to encourage litigants to raise issues before the trial court,

and to ensure the lower court has an opportunity to remedy an error prior to appeal. Id. As well,

its purpose is to prevent a party from obtaining a reversal through inaction. Id. Because the State

- 11 - did not raise the reasonable grounds argument with the trial court in a timely manner in its

motion to reconsider or at the argument thereon (other than the PBT issue), which would have

provided the court with an opportunity to consider the question, I believe the State has forfeited

the argument on appeal. See id. ¶ 15. And of course, the result would be the same pursuant to the

standard in a criminal appeal. Chapman, 194 Ill. 2d at 225. I would hold the State has forfeited

any argument relative to reasonable grounds.

¶ 36 Moving to the issue of whether there were reasonable grounds to believe

defendant was under the influence of alcohol, it is notable the hearing occurred over a period of

three nonconsecutive days, giving the State ample opportunity to marshal evidence to rebut

defendant’s prima facie case for rescission. Further, as the majority notes, the arresting officer

testified defendant was cooperative, polite, and did not exhibit slurred speech or the smell of

alcohol. The officer noted in addition that although defendant initially drove the wrong way

down a one-way street, defendant immediately remedied that, obeyed the other traffic laws, and

pulled over properly when directed to by the officer.

¶ 37 As to the field sobriety tests (FSTs or FST singular), the officer testified he first

performed the HGN test on defendant, but erred in doing so because he spent a longer span of

time than prescribed performing an integral part of the test. As well, the officer testified

defendant displayed but two clues on the HGN test. The officer acknowledged at least four clues

on the HGN test are necessary to constitute a failure and permit proceeding to another FST.

¶ 38 Nevertheless, the arresting officer next conducted the walk-and-turn test. This

FST requires two clues to constitute a test failure. The officer noted four clues: stepping off the

line multiple times, that defendant stopped walking at some point, an improper turn, and failing

to touch heel to toe.

- 12 - ¶ 39 Finally, the officer conducted the one-leg-stand FST. This test requires two clues

to fail, but the officer testified he noted one clue at the time of the stop.

¶ 40 The trial court determined it would not consider the HGN test as the officer

administered the test incorrectly. Defendant passed the one-leg-stand test, leaving only his failure

on the walk-and-turn. The court noted defendant had only briefly driven the wrong way on the

one-way street, and had no other issues driving, though there were ample opportunities to

demonstrate difficulties driving. Given the officer noted no odor of alcohol, no slurred speech,

and that defendant had no trouble providing his driver’s license or insurance, the court granted

defendant’s petition to rescind the statutory summary suspension.

¶ 41 For HGN test results to be admissible, the testing (1) must have been performed

according to the protocol promulgated by the National Highway Traffic Safety Administration

(NHTSA) and (2) conducted by a properly trained officer in accordance with those standards.

People v. McKown, 236 Ill. 2d 278, 306 (2010). If the testing is properly administered by a

trained officer, the trained officer may use the test result as part of the basis for the officer’s

conclusion a defendant is under the influence of alcohol and impaired. Id. Thus in McKown, the

admission of the officer’s testimony about the HGN testing of the defendant, which did not meet

NHSTA standards, was reversible error. Id. at 293, 310-11, 314.

¶ 42 As acknowledged by the arresting officer, he did not perform the FSTs according

to the appropriate standards. The officer first lingered too long during a portion of the HGN test.

He subsequently proceeded to another FST, when there were only two clues on the HGN test—

despite the protocol requiring four clues on the HGN test to proceed with another FST.

Therefore, the first test result from the HGN test cannot be used to support a conclusion

defendant was under the influence of alcohol. Further, as defendant passed the HGN test, the

- 13 - officer should not have proceeded with further testing. However, when the officer did, defendant

failed the walk-and-turn and passed the one-leg-stand. If the officer had administered the HGN

test in accordance with appropriate training and standards, the testing would have terminated

with defendant’s successful completion of the HGN test.

¶ 43 Thus, the trial court properly rejected the results of the HGN test and could have

declined to consider any additional testing. Further, the court was in a superior position to

evaluate the evidence presented over three nonconsecutive days. Without repeating the factors

the court considered as noted above, I would affirm and hold (1) the court correctly determined

there were no reasonable grounds to arrest defendant for DUI, (2) that such conclusion is not

against the manifest weight of the evidence, and (3) the court did not commit error by granting

defendant’s petition to rescind the statutory summary suspension.

- 14 -