Kane County Nuggets

People v. Roddis, 2018 IL App (4th) 170605 (November). Episode 568 (Duration 13:18)

Steigmann clarifies a few things about Krankel Hearings.

Gist

Defendant was convicted of aggravated battery for causing a laseration to his girlfriend’s head.

The case had already been through an appeal where defendant won a new Krankel hearing. On remand, the trial court initially appointed new counsel to represent defendant on his ineffective assistance of counsel claims. However, at a subsequent hearing, the trial court allowed that counsel to withdraw because of a potential conflict.

On Remand

 On remand, the trial court conducted a hearing at which defendant was present.

Originally, the judge appointed new counsel. When they ready to get into the claims of ineffective assistance the newly appointed counsel informed the court that he had a conflict becasue he had prepresetnted the victim in the case.

The attorney withdrew from the case, and the judge believed it could proceed with a “pre-inquiry Krankel” hearing without an attorney representing defendant. The judge continued the case again so that the trial attorney could be present.

Trial Court's Instructions

The trial court explained to defendant what would take place at the next hearing.

The court stated it had to get through one step before appointed counsel's involvement in this case becomes necessary. The court added that at the next hearing, defendant would be allowed to elaborate on the claims raised in his motion alleging ineffective assistance of counsel.

The trial attorney would be allowed to respond.

The State would be present, but the State’s “involvement on that date is to be almost nothing.”

The court further stated that if it found the allegations against trial counsel were “well-grounded,” then either new counsel would be appointed to represent defendant.

What Actually Happened

The judge was calling this a “pre-inquiry Krankel” hearing.

Defendant was present pro se, as were his earlier trial attorneys. Also present was the prosecutor.

The court said that it would first summarize each allegation. Then defendant would be allowed to elaborate and trial counsel would be permitted to respond. The court then stated that after hearing from counsel, it would “rule as to whether or not I find that there was ineffective assistance in this situation.”

The court later added that

“once we determine where we are at the end of the day, if the allegations are denied, I’ll probably go ahead and appoint you counsel *** and then we’ll deal with the rest of your motion for reduction of sentence. If I find that the allegations are founded, I’ll have to appoint separate counsel, and we will proceed to a full-blown Krankel hearing.”

Defendant's Claims

Defendant primarily contended that his trial counsel was ineffective for failing to impeach the victim with various text messages. Defendant explained that he gave his attorney copies of texts and emails from her in which she said she would speak to defendant’s lawyer for $1000, that she had been “playing” him the whole time to get money, and that the incident was an accident.

Trial counsel did not impeach the victim with these messages on crossexamination.

Defendant also alleged his counsel (1) “tricked” him into waiving his right to a jury trial, (2) indicated that counsel personally knew the judge, and (3) assured defendant that the State would dismiss the charges or offer a lower plea once it saw the victim’s text messages.

Trial Attorney's Response

Counsel responded that, from what he remembered, he got the victim to admit she thought her injuries were the result of an accident.

He explained that once she admitted it was an accident, he had all the impeachment he needed to show defendant did not knowingly cause great bodily harm.

The trial attorney denied making any of the other representations claimed by defendant.

Trial Judge's Ruling

The trial court then stated that it had considered the pleadings, the ARDC letter, and the statements of defendant and his previous lawyers and found “the defendant’s allegations do not amount to ineffective assistance of counsel.” Accordingly, the court would “not proceed to a full Krankel hearing.”

The court stated it thought defendant was “well represented” and that the case was “one of credibility.” The court noted that despite the evidence that impeached the victim's testimony, the court found she was credible while defendant was not.

The court concluded, “I’m satisfied that you were properly represented” and found again “that there was no ineffective assistance.”

New Counsel Still Appointed

Nonetheless, the court appointed the public defender to represent defendant on the remainder of his posttrial motion, which was a motion to reduce sentence.

Issue

Defendant appeals, arguing that the trial court erred by addressing the merits of his ineffective assistance of counsel claims instead of determining whether new counsel should have been appointed.

Confusion & Misunderstanding Prevail

We agree with Defendant that the trial court erred by addressing the merits of his ineffective assistance claims instead of determining whether counsel should have been appointed.

The record in the present case reveals that the trial court misunderstood both the purpose of a Krankel hearing and how one should be conducted. Because we have seen too many cases in which trial courts suffer from the same confusion, we believe a thorough discussion of Krankel hearings might be helpful.

Purpose Of The Krankel Inquiry 

The common law procedure first recognized in Krankel “serves the narrow purpose of allowing the trial court to decide whether to appoint independent counsel to argue a defendant’s pro se posttrial ineffective assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39, 960 N.E.2d 1114.

Thus, “a Krankel hearing is a term of art to describe the hearing the court must conduct when a defendant pro se has raised a posttrial claim regarding his counsel’s ineffective assistance.” People v. McGath, 2017 IL App (4th) 150608, ¶ 51, 83 N.E.3d 671. The only issue to be decided at a Krankel hearing is whether new counsel should be appointed. 

Accordingly, there are only two possible outcomes when a trial court conducts a Krankel hearing:

(1) the court appoints new counsel who should then conduct an independent investigation into the defendant’s ineffective assistance claims and take whatever action counsel thinks would be appropriate or
(2) the court does not appoint new counsel and posttrial matters proceed as in any other case.

Accordingly, at a Krankel hearing, the trial court does not—and cannot—reach the merits of an ineffective assistance claim; the court simply determines whether it is appropriate to appoint new counsel for the defendant to investigate such claims.

The “preliminary inquiry” to which Krankel cases sometimes refer is the preliminary inquiry into the factual basis, if any, of a defendant’s claims of ineffective assistance of counsel to determine whether appointing new counsel to pursue those claims is necessary. The Krankel hearing as a “neutral and nonadversarial” and an opportunity for the trial court to “initially evaluate” a defendant’s pro se claims. This initial and nonadversarial evaluation is not the forum at which the merits of a claim of ineffective assistance of counsel are resolved. See also People v. Jolly, 2014 IL 117142, ¶ 38.

If the appointment of new counsel is warranted, determining whether the defendant actually received ineffective assistance of counsel is for another day; the court does not reach the merits of such claims at the Krankel hearing.

No True Second Stage

Though occasionally mentioned in some cases, there is no true second stage or subsequent Krankel inquiry because the sole issue to be resolved at a Krankel hearing is whether new counsel should be appointed.

Once the trial court determines whether to appoint new counsel, the Krankel inquiry is over; if the court appoints new counsel, the case proceeds regarding the defendant’s claims of ineffective assistance as determined by new counsel.

Courts have used the terms “Krankel hearing,” “Krankel inquiry,” “preliminary Krankel inquiry,” and words to that effect interchangeably; this lack of consistency may be responsible for some of the confusion that exists, as seen in the proceedings in this case.

What If New Counsel Is On The Case?

The narrow and proper function of a Krankel hearing becomes clear when contrasted with a situation in which a defendant, who hires new counsel, files a posttrial motion alleging ineffective assistance of his original trial counsel. In such instances, no Krankel hearing is necessary because the defendant is already represented by counsel to investigate and appropriately pursue the defendant’s claims of ineffective assistance of trial counsel.

In those cases, courts routinely conduct hearings—at which both the defense and State fully participate—on the merits of those motions. And no Krankel hearing is necessary because the sole question at a Krankel hearing is whether the court should appoint the defendant new counsel to investigate and pursue the defendant’s ineffective assistance claims. When the defendant already has hired new counsel to do that, the issue of the court’s appointing counsel simply does not exist.

Perhaps terms like “preliminary Krankel hearing” arose because the question of the appointment of counsel to pursue pro se claims of ineffective assistance is necessarily preliminary to the consideration of such claims on their merits. Whatever the reason, the function of the Krankel hearing remains simply to decide whether to appoint counsel—its “narrow purpose” —and not to reach the merits of the ineffective assistance claims.

Whether the defendant is then represented by appointed or retained counsel, the merits of an ineffective assistance claim are addressed at a subsequent hearing in which both parties can participate.

When Is A Krankel Issue Raised?

A Krankel issue may be raised any time after a conviction but before the trial court’s judgment is final.

The issue is most commonly raised between conviction and sentencing, but need not be. For instance, a defendant, as in the present case, may raise that claim on a motion to reconsider sentence.

Krankel Hearing Proceedings - Gathering Information

Initially, it often is a sound practice for the trial court to discuss the allegations with the defendant in open court.

Because the function of the Krankel hearing is to give the defendant an opportunity to flesh out his claim of ineffective assistance,

(1) asking the defendant about his claims provides clarity for the record and thereby limits the issues on appeal. In addition,

(2) “some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant’s claim.”

(3) The trial court may also rely upon “its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations.”

Krankel Hearing Proceedings - What Not To Do

What the trial court may not do, however, is seek input from the State on the merits of the defendant’s pro se claims of ineffective assistance of counsel. Doing so converts this initial and nonadversarial proceeding into a contested hearing on the merits—a hearing at which the defendant would necessarily be forced to prove the merits of his claims pro se against the arguments of the State’s Attorney.

Such a hearing “cannot reveal, in an objective and neutral fashion, whether the circuit court properly decided that a defendant is not entitled to new counsel.” 

When New Counsel Should Be Appointed

As shown by the record in this case, trial courts and counsel are sometimes confused regarding the purpose of a Krankel hearing, thinking the issue to be resolved is whether the defendant in fact ultimately received ineffective assistance of counsel. As explained earlier, this view is not correct.

Instead, the sole issue to be resolved by a Krankel hearing is whether the court should appoint new counsel for a defendant so that the new counsel can take whatever action regarding defendant’s claim of ineffective assistance that counsel thinks would be appropriate.

If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed.

It bears mentioning that the purpose of appointing counsel pursuant to Krankel is for new counsel to investigate the defendant’s pro se claims of ineffective assistance of trial counsel—not to pursue other claims of error, like those commonly raised in posttrial motions.

How Does A Judge Know When A Claim Lacks Merit?

There are generally four primary ways a trial court, when conducting a Krankel inquiry, may conclude that an ineffective assistance claim “lacks merit” so that the court need not appoint new counsel to pursue the defendant’s ineffective assistance claim.

Those four primary ways are when the court determines that the defendant’s ineffective assistance claim is

(1) conclusory,
(2) misleading, 
(3) legally immaterial, or
(4) pertaining solely to an issue of trial strategy.

See People v. Johnson, 159 Ill. 2d 97, 126, 636 N.E.2d 485, 498 (1994); Moore, 207 Ill. 2d at 78.

Conclusory

An allegation is conclusory when a defendant is unable to add any additional factual basis to support his bare allegation from which a court could infer a basis in support of an ineffective assistance claim. For instance, in People v. Towns, 174 Ill. 2d 453, 467, 675 N.E.2d 614, 620-21 (1996), the defendant’s allegations were properly deemed conclusory because he claimed his counsel should have investigated “relevant facts and witnesses,” but defendant offered no explanation as to what or to whom he was referring.

An allegation is conclusory when despite the trial court’s making every effort to ascertain the nature and substance of defendant’s ineffectiveness claim, the defendant provided neither a basis nor facts from which the court could infer a basis in support of such claim.

Misleading

A claim is misleading—and therefore lacks merit—when the record clearly rebuts or contradicts the substance of the allegations, demonstrating that the claim for ineffective assistance is unsupported. In Johnson, the defendant claimed his attorneys failed to investigate police misconduct, including that he was beaten and that a witness lied under oath. Johnson, 159 Ill. 2d at 126. However, the record revealed that trial counsel presented significant evidence of the alleged police misconduct and, contrary to the defendant’s claims, the witness admitted to the very fact defendant claimed he lied about. 

A claim may also be misleading when the inquiry at the Krankel hearing reveals that the defendant’s assertions are false and do not support a claim of ineffectiveness. For example, a defendant may claim to have an exculpatory witness whom his counsel failed to present. However, after an inquiry at the Krankel hearing, the court may learn (from defense counsel or defendant) that the witness’s testimony was (1) not helpful to the defendant or (2) contrary to his claims. See People v. Nitz, 143 Ill. 2d 82, 135, 572 N.E.2d 895, 919 (1991) (court determined that witnesses’ testimony was not in accord with defendant’s representations and was actually inapposite to his claims).

Legally Immaterial

If a claim that is taken as true, either on its face or after inquiry, would still not support a finding of ineffective assistance, then it is legally immaterial. In People v. Giles, 261 Ill. App. 3d 833, 846, 635 N.E.2d 969, 979 (1994), the defendant was convicted of aggravated criminal sexual assault and argued that his trial counsel was ineffective for not arguing the victim’s hymen was not torn, despite the medical evidence supporting such a finding.

The court noted that only slight contact with the victim’s vagina was required to support the conviction, and thus, the medical evidence had no bearing on counsel’s performance.

Matter of Trial Strategy

A claim may be meritless if it pertains solely to a matter of trial strategy. When dealing with matters of trial strategy, the trial court at the Krankel hearing must determine if the allegations and factual bases could support a claim that trial counsel was objectively unreasonable. If the allegations and factual bases could support that claim, new counsel should be appointed.

The Standard of Review

Some courts, including this one, have remarked that “if the trial court properly conducted the entire Krankel inquiry and reached a determination on the merits of the defendant’s ineffective assistance claims, we will reverse only if the trial court’s action was manifestly erroneous.” People v. Robinson, 2017 IL App (1st) 161595, ¶ 90, 93 N.E.3d 573; see People v. Sims, 2014 IL App (4th) 130568, ¶ 142, 9 N.E.3d 621 (substantially the same).

We now believe these cases were not correctly decided.

We hold that a trial court commits reversible error when it conducts a Krankel hearing and concludes—on the merits—that there was no ineffective assistance, and we note that we are not the first court to so conclude.

The Facts of This Case

Here, the trial court erred when it conducted the hearing by addressing the merits of defendant’s ineffective assistance claim without appointing new counsel for defendant. The record clearly demonstrates the court, believing it was conducting a Krankel hearing, ruled on the merits of defendant’s ineffective assistance claims.

Indeed, the trial court indicated as much, stating that it would “rule as to whether or not I find that there was ineffective assistance in this situation,” as well as the court’s later findings at that hearing that “the defendant’s allegations do not amount to ineffective assistance of counsel” and “I’m satisfied you were properly represented, *** and there was no ineffective assistance.”

This was error.

The court reached the wrong result because it made the wrong inquiry.

How a Krankel Hearing Should Proceed On Remand

First, when a case is remanded for a Krankel hearing, the trial court should not automatically appoint new counsel for the defendant.

1. In the usual case, the appellate court remands for a Krankel hearing because the record is inadequate. Therefore, on remand, the trial court should familiarize itself with the defendant’s claims of ineffective assistance and review any written submissions, as well as any transcripts of the proceedings if the allegations were raised orally.

2. Then, in the usual case, the court should require the attendance of the defendant’s trial counsel at the Krankel hearing. Once the State, defendant, and defendant’s trial counsel are present, the court should review the allegations and ask the defendant if he has anything to add, thereby giving the defendant the opportunity to clarify or expand upon his previous claims.

3. Then, the court should allow defendant’s trial counsel to respond. In evaluating the defendant’s claim, the court may ask any questions of defense counsel or defendant the court believes to be helpful.

4. The court should not allow the State to respond or participate during the Krankel hearing.

After the court has engaged in what it believes to be an adequate inquiry into the defendant’s claims, it should decide if the defendants claims are...

(1) conclusory,
(2) misleading, 
(3) legally immaterial, or
(4) pertaining solely to an issue of trial strategy.

At this point, the trial court can determine whether new counsel should be appointed to pursue the defendant’s claim of ineffective assistance as determined by the new counsel.

Holding

Because this appeal is the second time this court has addressed these issues in this case, in the interests of judicial economy, we remand with directions to appoint new counsel for defendant, so that the new counsel may take whatever action the new counsel deems appropriate regarding defendant’s pro se claims of ineffective assistance of counsel.

For the reasons stated above, we reverse the trial court’s judgment and remand with directions. 

See Also

• Episode 307 - People v. Ayres, 2017 IL 120162 (February) (Exactly What Does Defendant Have To Say To Trigger A Krankel Inquiry?)
• Episode 528 - People v. Jindra, 2018 IL App (2d) 160225 (July) (Defendant Has To Make A Clear Complaint About His Attorney)
• Episode 383 - People v. Brown, 2017 IL App (3d) 140921 (June) (Attorney Argues For Her Own Ineffectiveness Ineffectively)

Here are the top 10 criminal opinions released in 2018 by the Illinois court system. Episode 567 (Duration 22:57)

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Top 10 Most Important & Significant Criminal Opinions Released In 2018 ➊ The SCOTUS Cases

Carpenter v. United States, 585 U. S. ____ (2018) (June). Episode 508 - The first two opinions here are not even Illinois cases. These are 2 SCOTUS cases that likely will change police procedures all up and down this state. Carpenter made it clear police need a warrant to capture your CSLI (cell site location information).

Collins v. Virginia, 584 U.S. __ (2018) (May). Episode 495 -Another SCOTUS opinion. Again, the high court limited police warrantless searches rather than expand them. Police need a warrant to search a vehicle on private property.

❷ High Court Reverse

In Re N.G., 2018 IL 121939 (August). Episode 524 - This never happens. The Illinois Supreme Court admits they got something wrong and fixed before years of litigation were wasted. The expressly overruled McFadden (see below) invalidated gun convictions are dead in the water and can't be used for anything. 

People v. McFadden, 2016 IL 117424 (June). Episode 187 - Originally, the Illinois Supreme Court said prosecutors could use invalidated gun convictions for charging and enhancement purposes. This is what they said was wrong.

❸ Apartments v. Houses

People v. Bonilla, 2018 IL 122484 (October). Episode 557 - Here the Illinois Supreme Court was pushed into deciding if apartments have less constitutional protection than houses. It said they have the same level of constitutional protection.

❹ Minors In Adult Court

People v. Harris, 2018 IL 121932 (October). Episode 551 - After changing the way minors are sentenced in adult court, the question popped up about what to do with young adults between 18 and 21 years of age. Many of the reasons for treating minors differently could also apply to this group of defendants. The Illinois Supreme Court said maybe, but 17 and under is where the line is drawn, and it's a hard line. Any young adults over the age of 18 looking for a break need to make "as applied" constitutional challenges. Those are not impossible, but difficult to win.

People v. Rodriguez, 2018 IL App (1st) 160030 (September). Episode 457 - This could be interesting. But expect the Illinois high court to slap this down the first chance it gets. This panel of appellate judges was feeling a little adventurous when they expanded protection for youthful offenders into uncharted areas of the law.

❺ SORA Issues

People v. Bingham, 2018 IL 122008 (September). Episode 551 - 2018 was the year to challenge SORA (sex offender registration act). Some defendants were seeing some success challenging the requirement to register as punitive. The Illinois Supreme Court finally said that the Appellate Court had no jurisdiction to waive a sex offender registration requirement.

In re B.C., 2018 IL App (3d) 170025 (February). Episode 465 - It wasn't all bad news. Minors in juvenile court found it difficult to use the section in the code that allowed some of them to get off the registration rolls if they could establish that it is “more probable than not” that he poses no risk to the community. The problem was that no evaluator would ever say that. This case helped fix this.

People v. Kindelspire, 2018 IL App (3d) 150803 (October). Episode 559 - This case was just one example of many overturned "failure to register" convictions. There is talk of revamping the SORA. This was just one example of why that change couldn't come too soon.

❻ Juvenile Interrogations

In re Jose A., 2018 IL App (2d) 180170 (October). Episode 557 - We finally got a good case that lays out and explains how the new juvenile interrogation statute works.

❼ Missing Video

People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 - What to do, what to do about lost, destroyed, or missing video? This question never gets old. There's no clear cut answer either. Things will really get interesting when police start wearing all those body cams.

❽ Higher Scrutiny

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode  488 - Not long ago an appellate court would have let this kind of conviction slide through. Not anymore. Wave after waver of wrongful convictions will get your attention. This reviewing court saw a case where the facts didn't add up. They flat out reverse a conviction. It's pretty clear they appellate judges thought they had the wrong guy.

People v. King, 2018 IL App (2d) 151112 (August). Episode 530 - These weren't the only 2 cases like this. But they do a good job of illustrating the scrutiny reviewing courts are now beginning to engage in. This time it was the state’s expert witness who was not allowed to get carried away with his opinion. Not that long ago this would not have been a problem.

❾ The Basics: Causation & Impartiality

People v. Nere, 2018 IL 122566 (September). Episode 541 - Every once and a while we'll catch a case that does a good job of bringing us back to the basics. Love those cases. Prepare for a PhD on "criminal causation" in this drug overdose case.

People v. Little, 2018 IL App (1st) 151954 (September). Episode 546 - This case too...This time the court was asking what it means to have an unbiased trier of fact. The case was set off when the judge appeared to have his mind made up before the defense attorney gave his closing argument. Very interesting stuff.

➓ Fines & Costs

People v. Barajas, 2018 IL App (3d) 160433 (November) & People v. Garza, 2018 IL App (3d) 160684 (November). Episode 562 - Not the sexiest issue, but these little cases go a long away reminding us how we can do something for defendants with fines and costs. Fines and costs are a mess.

This is the November 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 566 (Duration 24:07)

The November 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Sadeq

Steigmann says the delay to have the drug dog come out was justified because defendant was extremely nervous, the story didn't match the passenger's story, and the driver stopped in the middle of the roadway when the police lights came on.

2. People v. Quigley

He was plastered and sends his car air born on the expressway, nonetheless, he says his hospital blood can't be considered in civil sss hearing.

3. People v. Stewart

You got to object when they try to admit the gun letter.

4. People v. Gliniewicz

Fox Lake Police Officer who killed himself sent some texts and emails to his wife before he died.

5. People v. Evans

State was allowed to call the ex wife who said he punched her in the face in the past but he was not allowed to get into the victim's attempt to burn his beard or her pending DUI or CDTP case.

6. People v. Stevens

Boatload of error in this child sex case.

7. People v. Barajas & People v. Garza

How to erase fines you can't pay.

8. People v. Sophanavong

They didn't tell the judge the prior sentences on the prior convictions so this 55 year sentence has to be vacated and remanded for a new sentencing hearing.

9. People v. Barnes

This minor was sentenced before the new law was in effect, nontheless, he raised a successful as applied constitutional challenge to win a new sentencing hearing.

10. People v. Hammons

Defendant tried to challenge the "submit to random search" requirement to his probation term and also challenged the requirement that he not associate with drug abusers.

11. People v. Denis

Defendant had an IQ of 79 but the confession was still voluntary.

12. People v. Acevedo

Counsel was representing a state's witness contemperaneously, significance of the waiver not explained to defendant.

13. People v. Garner

Defendant was not allowed to recross after redirect of the police officer.

14. People v. Crowder

Convict grabs his dad's gun when 3 big dudes start punching them.

15. People v. Roddis

Steigmann clarifies a few things about Krankel Hearings.

People v. Quigley, 2018 IL App (1st) 172560 (November). Episode 565 (Duration 9:50)

He was plastered and sends his car air born on the expressway, nonetheless, he says his hospital blood can't be considered in a civil suspension hearing.

Gist

Defendant was involved in a multi-car collision and was transported from the scene by ambulance to a hospital emergency room. At the hospital, a blood alcohol test was performed on defendant, and a doctor informed an Illinois state trooper of the results. The trooper placed defendant under arrest and issued him citations for driving under the influence of alcohol in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2)) and other traffic violations.

In addition, defendant was subsequently charged with driving while his blood alcohol level was 0.08 or greater under section 11-501(a)(1) of the Code. Id. § 11-501(a)(1).

The Accident

Defendant’s driver’s license was, thereafter, summarily suspended by the Secretary of State.

The trooper arrived to the scene of a three car accident on a ramp of the Dan Ryan Expressway. Apparently, defendant swung across traffic in an effort to get on the exit ramp. He made it, then suddenly attempted to cross from the ramp to the local lanes, lost control, struck the barrier that separates the exit ramp from the local lanes, went airborne, and then struck 1 other  vehicle which in turn hit a third car. 

Talk To Defendant

Defendant, the sole occupant of the car that went airborne, was bleeding from lacerations on his forehead and face. The trooper asked defendant what had happened and if he was all right. Defendant gave the trooper his name and driver’s license but stated that he “wasn’t involved in any crash.” The trooper noticed that a “strong odor of alcoholic beverage was emanating from his breath.” 

When fire department personnel asked defendant to exit his vehicle, defendant refused, stating that he was uninjured.

During a second conversation, the trooper asked defendant if he had been drinking alcohol, and defendant did not answer. He asked him again what had happened in the crash and defendant replied:

“What crash? I wasn’t involved in any crash. I didn’t hit anybody.”

At this point, fire department personnel joined in assisting defendant out of his vehicle and onto a gurney. Defendant repeatedly refused to leave his vehicle and said that he did not want to go to the hospital but wanted to call his parents and go home. 

Eventually, defendant was taken by ambulance to the emergency room of Stroger Hospital.

At The Hospital

After defendant received treatment, the trooper spoke with defendant in his hospital room. Again, he smelled “a strong odor of alcoholic beverage emanating from his breath.”

A physician told the trooper that lab work had been done, the results of which indicated defendant’s whole blood alcohol content was 0.297. That number converted to a serum blood alcohol content of 0.251, which was over the legal limit of 0.08.

The trooper confirmed that the police had not directed anyone at the hospital to take defendant’s blood. After receiving this information, defendant was placed under arrest and read defendant the warnings to motorist.

Issue

Defendant filed a petition to rescind the statutory summary suspension.

On appeal, defendant first contends that the trial court erred when it allowed “into evidence,” over his objection, the results of the blood alcohol test conducted at the hospital. He argues that those test results were protected by the physician-patient privilege and that no exception to that privilege applies in proceedings to rescind a statutory summary suspension.

A Narrower Issue

The question then becomes whether, in the context of the statutory summary suspension proceeding, it was proper for the trooper and the trial court to consider those test results in determining whether reasonable grounds existed to believe defendant had been under the influence of alcohol while he was driving.

No published case in Illinois has addressed this exact question.

Statutory Summary Suspension Hearing Is Not A "Prosecution"

Specifically, he asserts that exceptions allowing for the admission into evidence of blood alcohol test results “in prosecutions” for certain offenses do not apply here because statutory summary suspension hearings are civil actions and not criminal prosecutions.

In response to defendant’s position that the physician-patient privilege protected the results of his blood alcohol test, the State maintains that exceptions to the physician-patient privilege, found in sections 8-802(4) and (9) of the Code of Civil Procedure (735 ILCS 5/8­ 802(4),3 (9), and sections 11-501.4 and 11-501.4-1 of the Code allowed the disclosure of defendant’s blood alcohol test results and the testimony relating to the test.

Physician-Patient Privilege

Communications between a physician and patient were not protected from disclosure under common law. Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 852 (1982).

Section 8-802 of the Code of Civil Procedure codifies the physician-patient privilege and provides that

“[n]o physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient.”

735 ILCS 5/8-802.

The privilege, however, is not absolute.

Section 8-802, itself, enumerates 14 exceptions to the physician-patient privilege and “illustrates a ‘legislative balancing between relationships that society feels should be fostered through the shield of confidentiality and the interests served by disclosure of the information.’ ” Palm v. Holocker, 2017 IL App (3d) 170087, ¶ 21 (quoting People ex rel. Department of Professional Regulation v. Manos, 202 Ill. 2d 563, 575-76 (2002)).

Section 8-802(9) provides an exemption to the physician-patient privilege “in prosecutions where written results of blood alcohol tests are admissible pursuant to section 11­ 501.4 of the Code.” 735 ILCS 5/8-802(9).

The Illinois Traffic Code On Patient Confidentiality

Section 11-501.4 of the Code, to which section 8-802(9) of the Code of Civil Procedure refers, provides that

“the confidentiality provisions of law pertaining to medical records and medical treatment shall not be applicable” with regard to blood tests performed when receiving medical treatment in an emergency room and (under certain criteria) are admissible in the prosecution for any violation of section 11-501, a similar local ordinance, or for reckless homicide.

People v. Ogle, 313 Ill. App. 3d 813, 816 (2000) (quoting 625 ILCS 5/11-501.4(b)).

Additionally, section 11-501.4-1 of the Code provides an exemption with regard to individuals being treated in an emergency room after a motor vehicle accident and states:

“(a) Notwithstanding any other provision of law, the results of blood, other bodily substance, or urine tests performed for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, in an individual’s blood, other bodily substance, or urine conducted upon persons receiving medical treatment in a hospital emergency room for injuries resulting from a motor vehicle accident shall be disclosed to the Department of State Police or local law enforcement agencies of jurisdiction, upon request. Such blood, other bodily substance, or urine tests are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of [s]ection 11-501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961 or the Criminal Code of 2012. (b). The confidentiality provisions of law pertaining to medical records and medical treatment shall not be applicable with regard to tests performed upon an individual’s blood, other bodily substance, or urine under the provisions of subsection (a) of this [s]ection.”

625 ILCS 5/11-501.4-1(a), (b).

Analysis

Here, a blood alcohol test was performed on defendant when he was being treated in an emergency room for injuries he sustained after a motor vehicle accident. Thus, under section 11­ 501.4-1 of the Code, the physician-patient privilege did not prevent disclosure of the blood alcohol test results to law enforcement. In fact, this section required that the results of defendant’s blood alcohol test be given to the trooper upon his request.

There is no question that the doctor acted properly in providing the trooper with defendant’s blood alcohol test results. The circuit court properly found the physician-patient privilege was not violated by the physician’s reporting of defendant’s blood alcohol test results.

We find that, by permitting and, in fact, requiring the release of the blood alcohol test results to law enforcement when there has been a motor vehicle collision, it is reasonable to conclude that the legislature, in enacting section 11-501.4-1, intended that the blood alcohol test results would be used by law enforcement to determine reasonable grounds to believe a defendant has been driving impaired for purposes of a statutory summary suspension.

We also find that the trial court properly allowed and considered the testimony of the trooper as to the blood alcohol test results in its decision to deny the petition to rescind. The trooper’s conclusion served as a basis for his arrest of defendant and to the trooper giving defendant the warnings to motorist. As a result, defendant’s license was subjected to a statutory summary suspension under the implied consent provision of the Code.

Holding

In keeping with Ernst and the language of section 11-501.4-1, we find no error in the troop’s consideration of the results of the hospital’s blood alcohol test in determining whether there were reasonable grounds to believe defendant was driving under the influence of alcohol.

 The trooper testified that the results were a factor in his determination that there were reasonable grounds to arrest defendant for driving under the influence. In so finding, we reject defendant’s argument that, because statutory summary suspension proceedings are considered as civil in nature and are not “prosecutions,” the reasoning of Ernst should not apply here.

Trooper Krzysiak based his conclusion, in part, upon defendant’s reported blood alcohol test results and, therefore, this information is “essential” to a court’s determination as to whether reasonable grounds existed that defendant was driving under the influence.

Affirmed.

See People v. Ernst

In People v. Ernst, 311 Ill. App. 3d 672 (2000), this court addressed the analogous question of whether, in the context of a motion to quash arrest and suppress evidence, it is proper to consider such results in determining whether probable cause to arrest for driving while impaired existed.

The legislative intent recognized in Ernst—that the police would use disclosed blood alcohol test results in determining whether there was probable cause to effectuate an arrest—applies just as equally in the context of a statutory summary suspension proceeding as in a probable cause hearing.

Our conclusion is supported by our supreme court’s recognition that the issues raised in a petition to rescind and in a motion to suppress are overlapping and share the same standard of review. People v. Wear, 229 Ill. 2d 545, 560-61 (2008). Specifically, when determining whether an officer had reasonable grounds to arrest a defendant in the context of deciding a petition to rescind statutory summary suspensions, Illinois courts utilize the probable cause analysis of the fourth amendment. See also Fonner, 385 Ill. App. at 539-40 (in proceedings on a petition to rescind a statutory summary suspension “reasonable grounds” is synonymous with “probable cause”).

See Also

• Episode 558 - People v. Williams, 2018 IL App (2d) 160683 (October) (A Recap Of Recent DUI Probable Cause Cases)
• Episode 461 - People v. Hayes, 2018 IL App (5th) 140223 (February) (implied consent not applicable when defendant was not ticketed for DUI and there was no clear consent to have his blood drawn)
• Episode 420 - People v. Durden, 2017 IL App (3d) 160409 (November) (do you have to give blood if yo pass the breathalyzer?)
• Episode 469 - A Review Of Blood Draws: Warrantless Blood Draws Coming To A Hospital Near You
• Episode 439 – People v. Sykes, 2017 IL App (1st) 150023 (December) (no police action when police hold a lady down in the hospital)
• Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action)
• Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron 
• Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)
• Episode 462 - People v. Turner, 2018 IL App (1st) 170204 (February) (Nurse Acting In Behalf Of The Police Became A State Actor)
• Episode 491 - People v. Gill, 2018 IL App (3d) 150594 (April) ()
• Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)
• Missouri v. McNeely v. 569 U.S. 141 (2013)
• People v. Rennie, 2014 IL App (3d) 130014 (May)

People v. Crowder, 2018 IL App (1st) 161226 (November). Episode 564 (Duration 9:49)

Convict grabs his dad's gun when 3 big dudes start punching them.

Gist

Defendant was charged with one count of reckless discharge of a firearm and six counts of AUUW.

Facts Estranged Wife

Defendant and his 73 year old father drove to the home of defendant's estranged wife.

They drove there to pick up Defendant's young daughter and some clothes for his aunt’s funeral, which they planned to attend the next day. There was trouble when they got there. Defendant's father was lawfully carrying a loaded .380-caliber Glock handgun in a holster on his right hip. Both men were on the front porch and were about to leave after receiving no answer when the door opened and three men appeared in the doorway.

3 Angry Hostile Men

2 of the men were the brothers of the wife and the big guy (over 400 lbs) in the middle was "Ra-Ra" from the neighborhood.  The witnesses agreed that, with no provocation and no words exchanged, the men starting swinging at defendant and his father. The old man was hit in his upper shoulder, causing him to fall backward, lose his balance, and fall off the left side of the porch. Defendant's father hit the ground five feet below.

1 Shot In The Air

Defendant sees his father fall, so he runs down to check on him. Defendant saw he was dazed. He tried to lift him but could not. The men above were yelling threats and obscenities at him, and he saw Ra-Ra reach for a bulge under his shirt that defendant believed was a weapon. One of the three men yell “I will empty the caps in his a**.”

This is when Defendant grabbed his father’s handgun from its holster and fired one shot vertically into the air. He testified that he did this “for protection for me and my father.” Defendant then backed away from the porch, holding the gun up in the air, thinking he would thereby draw the men away from his father. He did not fire again but turned and ran down the street, without looking behind him.

Police arrive and stop Defendant within a matter of minutes.

The Police

 The officer found Claude roughly a block from the scene of the altercation, conducted a protective pat-down of him, and discovered the handgun.

Defendant told the officer that he had manually ejected bullets from the handgun and guided the officer to the ejected bullets. The officer testified that there were two rounds remaining in the handgun, and that he recovered two intact ejected bullets from where defendant pointed them out, along with one spent shell casing at the scene of the altercation.

The State admitted into evidence a certification from the Illinois State Police Department, stating that defendant did not have a FOID card or CCL.

Verdict

Defendant was found not guilty of reckless discharge but guilty of multiple counts of AUUW.

Defendant was convicted of AUUW under section 24-1.6(a) of the Criminal Code of 2012, in that

(1) he knowingly carried or concealed on his person an uncased and loaded pistol;
(2) at a time when he was not on his own land, in his own abode, or in a fixed place of business, or he was on public land;
(3) that pistol was immediately accessible to him at the time he carried it; and
(4) he did not have a FOID card or CCL.

720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(A), (a)(3)(C), (a)(3)(A-5).

The trial court’s entire ruling on this issue was as follows:

“I find the evidence has been uncontroverted. The defendant had a gun on him. He carried it on his person. And so the State has met each and every element of each and every one of those offenses. So I find the defendant guilty beyond a reasonable doubt.”

The trial court merged Defendant's AUUW charges into a single count and sentenced him, he had no felony background, to the minimum sentence, which was one year of incarceration, with credit for 188 days he had spent on electronic monitoring.

Self Defense Claim

Defendant argues that the evidence at trial was insufficient to support a conviction for AUUW, based on possessing a weapon without a FOID card, because the evidence demonstrated that, under the circumstances, it was necessary for him to possess the firearm in question to adequately defend himself and his father.

To properly raise an affirmative defense, a defendant is required to present some evidence on the issue, unless the State’s evidence itself raises the defense. People v. Kite, 153 Ill. 2d 40, 44-45 (1992). “Generally, the quantum of proof necessary to raise an affirmative defense is evidence sufficient to raise a reasonable doubt as to defendant’s guilt or innocence,” which is a relatively low threshold.

Use of force in self defense or defense of another includes the following elements:

(1) unlawful force threatened against a person,
(2) the person threatened was not the aggressor,
(3) the danger of harm was imminent,
(4) the use of force (by the threatened person) was necessary,
(5) the person threatened actually and subjectively believed a danger existed that required the use of force applied, and
(6) the beliefs of the person threatened were objectively reasonable.

People v. Gray, 2017 IL 120958, ¶ 50 (citing 720 ILCS 5/7-1).

Can A Person Raise Self Defense On A Gun Possession Charge?

The State’s first argument is that self defense is not available to negate a charge of AUUW because the second amendment allows the State to impose regulations for carrying weapons. According to the State,

“the failure to have been issued a currently valid license under the Concealed Carry Act at the time of the offense, means that defendant’s reliance upon his right to self defense is not valid as his conduct is not protected by the Second Amendment right to self defense.”

However, defendant nowhere asks to be permitted to walk around armed with a firearm without a FOID card or CCL, in derogation of the state’s clear power to meaningfully regulate the possession of firearms.

Rather, he acknowledges that his possession violated the law but argues that his brief, unlawful possession of a handgun was justified because it was necessary to defend himself and his father.

In People v. Gullens, 2017 IL App (3d) 160668 (October) we held that a defendant was justified in momentarily possessing a handgun for the greater good.

In that case the defendant was “without blame in occasioning or developing the situation that resulted in the theft,” returning the gun himself was the sole option available, and returning it “undoubtedly promoted a higher value than refraining from being a felon in possession of a weapon for the 10 minutes it took to return the gun to the store.”

This was a necessity defense.

Self defense, defense of another, and necessity are all justification defenses that employ a similar balancing of the circumstances a defendant faced against the actions he took. See 720 ILCS 5/7-1, 7-13; see also People v. Houser, 305 Ill. App. 3d 384, 392 (1999) (noting that, although “compulsion and necessity defenses are comprised of different elements,” the two “are closely linked, sharing the same factual basis”).

For all the reasons that necessity can be raised as a defense to an AAUW charge, so can self defense—which is itself a type of necessity, justifying the use of force when an immediate, greater evil threatens a person who initiated no violence and had no other recourse.

The State’s right and need to regulate guns does not mean that a criminal defendant cannot raise such a defense to a gun charge.

Analysis

In our view, no reasonable trier of fact could have found any of these elements to be missing or that the threat was not imminent.

The unrebutted testimony was that defendant and his father were attacked without provocation, 73-year-old man suffered injuries as a result of being knocked off of the porch, and the three men coming out of the house were continuing to threaten them.

All of this transpired before defendant reached for the handgun, and none of it was initiated by him. The entire episode took only minutes. Throughout that time, defendant retained a reasonable concern for his and his father’s safety.

The record also indicates that defendant saw a bulge under Ra-Ra’s shirt that he believed was a weapon.

He faced a genuine dilemma when the men on the porch continued to threaten him and his father. Regardless of whether the men who had attacked him had a gun, he had a legitimate fear of injury to himself and further injury to his father, who was already immobilized with injuries. It was not unreasonable for defendant to leave the scene with the weapon rather than leave it there, where the three aggressors could have used it and where his incapacitated father was neither able to secure it nor use it to defend himself.

Claude’s conduct after leaving the altercation— manually unloading the handgun and identifying the ejected bullets for the police—reveals that defendant attempted to minimize or eliminate any harm resulting from his continued possession of the weapon. No rational trier of fact could have found that the State negated any element of Claude’s claim of self defense, and we find that defense justifies his conduct in this instance.

Holding

No rational trier of fact could find the State carried its burden with respect to negating either the defense of self defense or the defense of necessity, based on the undisputed evidence presented at trial.

We thus reverse Claude’s conviction for AUUW.  See also 

See Also

• Episode 429 - People v. Gullens, 2017 IL App (3d) 160668 (October) (Fundamental Fairness And The Necessity Defense Save Defendant 3 Years In This Gun Possession Conviction)
• Episode 504 - People v. Wilkinson, 2018 IL App (3d) 160173 (June) (A Test For Criminal Justice…Guy Gets Convicted For Defending Himself)

Recently, appellate Judge Steigmann form the Fourth Appellate District Court bench slapped the entire Illinois criminal law bar for repeatedly making the same trial mistake.

Raise your hand if you know what trial mistake the judge was talking about.

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Well here is exactly what the judge said:

More than 15 years after the General Assembly enacted the statute, the author of this opinion noted that “even experienced trial courts face serious uncertainties when applying section 115-10.1 of the Code."...Now, more than 30 years after the statute’s enactment, seasoned attorneys and trial judges still regularly mishandle section 115-10.1 issues when they come up at trial - Judge Steigmann quoting People v. Edwards, 309 Ill. App. 3d 447, 457, 722 N.E.2d 258, 265 (1999).

People v. Brothers, 2015 IL App (4th) 130644 (September 2015), ¶ 66.

Why do we keep screwing up Prior Inconsistent Statements at trial?

Although the statute (725 ILCS 5/115-10.1) is not the most artful thing, it's not exactly confusing either.

Everything we need to know, well almost everything, is right in there. It's all in black and white.

What gives?

Why do we keep making this mistake?

Way back in Podcast Episode 085, I took a stab at answering this question. 

I concluded then, and I still believe today, that the reason why we get into trouble with this rule of evidence is because we choke under the...

• pressure and
• time constraints

...of a trial.

I believe it is that simple.

The Statute Doesn't Help

The statute is inartful enough that it is not there in our brain in any logical way. There is no simple formula up there to guide us and that we can draw from to help steer us towards a correct answer.

What we need is a simple formula we can store upstairs that we can depend on when we find ourselves in a trial and the issue of a prior inconsistent statement comes up.

Yes, what we need is a formula that is easy to memorize and easy to chisel in our brain. A fast and dependable mental aid is required to avoid making mistakes with this Illinois rule of evidence.

My First Attempt...

I already took a crack at this in Episode 085.

But I only got half way there in my first attempt. You can still download my first cheat sheet I created on this subject. Fair warning though:

This attempt is incomplete!!

This is not the whole formula. I was still gathering my thoughts and thinking about this concept back in Episode 085. The later cases, helped me piece it all together.

My first visual aid left out two very important steps.

In fact, the incompleteness of this first attempt precisely parallels the exact kind of actual mistakes we are making in a real trial setting.

Mentally, we see the presence or obasence of one important element and draw a conclusion based on that element alone without fully considering the complete formula.

Prior Inconsistent Statement 4 Step Formula

[gallery link="none" size="full" columns="2" ids="4360,4355,4356,4357"]

I just wanted to let you know I recently created the complete 4-step formula (ready for download) that can be followed during a trial to ensure you don't make another prior inconsistent statement mistake again. 

What we need to do is replace the statute in our brains with something much more memorable and easier to understand - something that can reliably guide us to the correct answer.

This Issues Comes Up All The Time

Prior inconsistent statements are not the kind of evidentiary thing that we only see every once in awhile.

No, prior inconsistent statements come up all the time, which is exactly why this particular trial mistake has become so frequent.

If you're an Illinois trial attorney you owe it to yourself to download this free 4-step formula that you can rely on during a trial. This is your guarantee to get the right answer whenever a prior inconsistent statement objection or issue pops up.

Get started now by hitting the button below...

Prior Inconsistent Statement 4-Part Formula

Super Simple Easy to Memorize. Click here for your free PDF DOWNLOAD
• 4 Simple Steps
• Print For Your Trial Notebook
• Guarantee You Get it Right
Add To Your Library Now

 

People v. Sadeq, 2018 IL App (4th) 160105 (November). Episode 563 (Duration 15:18)

Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.

Gist

Traffic stop leads to a dog sniff and a car search. Stolen cigarettes destined for resale were discovered in the car.

The Trooper

The trooper was a trained drug interdiction investigator. Interstate transportation of narcotics was his thing.

Part of this training includes traffic stops, behavior classes, interviewing techniques, and other ­training to recognize possible drug activities during traffic stops.

The Stop

Around 10:45 p.m., he was on patrol on Interstate 55 just south of Springfield. He observed a Ford Taurus traveling 75 miles per hour in a 70 mile-per-hour zone. He caught up to it, which maintained a speed of 75 miles per hour, and followed it north.

The trooper initiated a traffic stop by turning on his emergency lights. The car came to a stop in the middle of the right lane, which immediately raised the trooper's suspicion.

In his experience, the vast majority of stops do not involve the car stopping in a lane of traffic. He testified that people who stop in the middle of a lane do so because they are nervous, and, in his experience, every time a car stopped in a lane of traffic, he discovered something that resulted in an arrest.

Using his police car’s external public address (PA) system, the trooper instructed the driver of the Taurus to pull over onto the shoulder.

The Men

Two men were in the car.

The Trooper thought they were extremly nervious right from the get-go. Their hands shook, they had rapid heartbeats viewed by the throbbing carotid artery and a “bouncing” stomach. The trooper also saw twitching eyes and a leg was bouncing up and down.

The Conversation

Just 15 seconds into the stop, the men were told they were going to receive a “quick warning.”

The trooper learned they rented the car from Avis at the Chicago airport. They were from Missouri. They stuttered when they spoke and had a heavy accent. The trooper thought the long pausing and stuttering meant they were making up the answer on the spot.

Back To The Squad

Once back in his police car, the trooper confirmed with dispatch that the rented Taurus was “clear.” The men had no warrants

Four minutes and forty-five seconds into the stop, the trooper directed the driver over the police car’s PA system to “come here,” meaning the police car. He explained that he typically invites every driver to whom he issues a written warning to sit in his police car as he fills out the warning because it is safer than filling it out on the side of the road and because he is a “friendly guy.”

This gave the trooper an opportunity to talk and ask more questions.

The man couldn't explain where in Missouri they were coming from, he said they were at his cousin's friends house. The trooper asked about how long they visited and how long they had been traveling. He learned the family business was in a gas station with a grocery store.

Seven minutes and forty-five seconds into the stop, the trooper radioed for backup. The man remained extremely nervous throughout their conversation, even though the trooper repeatedly told him he would only receive a warning, which would not cost him anything. In his experience, drivers relax significantly when they know they are not getting a ticket.

The trooper asked again about the trip, where they went, why no bags, who they visited, ect...

11 minutes and 20 seconds into the stop backup arrives.

Back To Talk To The Passenger

The trooper said he didn't believe the drivers story and he wanted to talk to the passenger again. Plus, he always gives paperwork directly back to the person from whom he received it to prevent allegations of lost or misplaced paperwork.

He had completed the written warning and only needed the driver to sign it. Instead, the trooper returned to the Taurus and gave the passenger back his license and rental agreement. He then asked many of the same questions he had asked the driver moments earlier.

The passenger answered them for the most part consistently.

He stated they had visited his father’s friend. He explained that his father was a partner with two similar stores and was looking to become partners with his friend in Missouri. They had travelled to Missouri to observe the business at his father’s request so he could learn.

The trooper explained he wanted to make sure defendants were not involved in criminal activity. He asked for permission to search the car and the passenger declined. That's when the trooper told the men based on the way defendants were acting, he was going to have a drug dog come and sniff the car because he believed they were involved in criminal activity.

The Drug Dog

The trooper testified he requested the drug dog based on the following factors:

(1) defendants’ stopping their car in the middle of the right lane,
(2) defendants’ travel plan was conflicting and implausible in that it was highly unusual, and
(3) defendants remained extremely nervous despite being repeatedly told that they would receive just a warning.

Additionally, he explained that his suspicion was aroused because the driver did not know where he was coming from and could only give a vague description of what he was doing while in Missouri.

Weiss ordered the passenger out of the Taurus and sent him to the squad car.

The stop had lasted 17 minutes at that point. The request for the dog went in. Finally, the driver was asked to sign the warning and it was tendered to him. There were more questions and now the driver was asked for consent to search. The driver first said "yes" then said "no." 

The narcotics-detection dog arrived approximately 8 minutes after he was called. 

This was now 25 minutes and 30 seconds into the stop.

The dog alerted on the trunk of the Taurus.

Full Search Now

The trooper got the keys to the Taurus and opened the trunk, which contained 480 cartons of cigarettes.

The cigarettes had Missouri tax stamps, but not Illinois tax stamps. The men were arrested for the transportation of unstamped cigarettes. At the police station the driver admitted they had travelled to Missouri to purchase cigarettes and transport them for resale in Chicago without paying Illinois taxes.

Guilty of Something

The applicable Missouri tax was approximately $0.17 per pack, while in Chicago the applicable tax was approximately $6.16 per pack. That's $2,956.80 in lost revenue for Illinois. The men paid only $81.60 of taxes in Missouri.

The court found the men guilty of unlawful transportation of unstamped cigarettes (35 ILCS 130/9c) and unlawful possession of unstamped cigarettes (35 ILCS 135/30(d)). The trial court sentenced both defendants to two years of conditional discharge and ordered each to serve 14 days in jail.

The court also ordered forfeiture of the cigarettes and the imposition of “fines, fees and costs.”

Issue

Defendants appeal, arguing the trial court erred by denying their motion to suppress because the traffic stop was impermissibly prolonged without reasonable suspicion of criminal activity.

Prolonged Traffic Stop

Although a police officer may stop and briefly detain a motorist when the officer has observed the motorist committing a traffic offense (People v. Abdur-Rahim, 2014 IL App (3d) 130558, ¶ 26, 16 N.E.3d 903), the traffic stop can become unlawful “if it is prolonged beyond the time reasonably required to satisfy its initial purpose” (People v. Reedy, 2015 IL App (3d) 130955, ¶ 25, 39 N.E.3d 318).

The United States Supreme Court has observed that “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop.” Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1614 (2015).

According to the Supreme Court, “[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at ___, 135 S. Ct. at 1614. In a routine traffic stop, the officer’s mission includes not only deciding whether to issue a ticket, but also activities such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.”

Although an officer may also conduct checks unrelated to the traffic stop’s mission, “he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”

People v. Ricksy

Twenty-eight years ago, in People v. Ricksy, this court suggested a particular analytical approach for trial courts when deciding motions to suppress evidence. People v. Ricksy, 206 Ill. App. 3d 302, 306-07, 564 N.E.2d 256, 259 (1990). Specifically, we explained that “[w]hen, as here, the evidence before the court reveals a series of interactions between the police and a person who is being stopped or searched, the court’s analysis should be as finely divided as possible to distinguish among the various stages of that interaction.”

In Ricksy, we outlined the following questions for consideration as an example:

“(1) Was the initial stop of the [vehicle] lawful?
(2) Assuming the initial stop to be lawful, did the officer lawfully order the passengers to get out and to stand at the rear of the vehicle?
(3) Assuming that order was lawful, did the officer lawfully conduct a pat-down of the defendant? And
(4) assuming the pat-down was lawful, did the officer lawfully remove the envelope from defendant’s pants pocket?”

See also People v. Salvator, 236 Ill. App. 3d 824, 835-36, 602 N.E.2d 953, 959-60 (1992), in which this court applied the analytical framework from Ricksy.

The Relevant Questions

Using the Ricksy analysis in this case, the relevant questions are the following:

(1) Was the initial traffic stop was valid?
(2) Assuming the initial stop to be lawful, was the stop prolonged beyond the time necessary to complete the mission of the stop?
(3) Assuming it was so prolonged, was the continued detention of defendants supported by a reasonable suspicion?

So Was the Stop Impermissibly Prolonged?

The State contends the traffic stop did not conclude until the trooper gave Ibrahim his warning ticket and told him to “drive safe.” Defendants counter that the stop ended when the had completed writing the warning ticket which was the initial basis for the stop.

We agree with defendants.

When deciding whether a traffic stop is impermissibly prolonged, the focus of the inquiry is on “when tasks tied to the traffic infraction are—or reasonably should have been— completed.” Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. Here the routine business of the traffic stop ended when the warning ticket was filled out.

The trooper testified that the written warning was completed when he left his police car to return the rental paperwork to the passenger. The only thing missing was the driver’s signature on the written warning, which the trooper could easily have obtained. Instead, the trooper proceeded to question the driver for approximately 4½ minutes about defendants’ itinerary.

This additional questioning was not related to the “mission” of the stop.

We conclude that the stop “was—or reasonably should have been—completed” at 11 minutes and 20 seconds into the stop. 

Was This 4 1/2 Minute Delay Justified? Was There Reasonable Suspicion To Justify Further Detention?

State contends the delay was justified by reasonable suspicion to justify further detention.

Defendant contends the court’s finding that the nervous behaviors “increased” was manifestly erroneous and unsupported by any evidence in the record.

So, was defendants’ continued detention was justified by a reasonable articulable suspicion of criminal activity? Defendants argue the trial court’s ruling that the trooper had reasonable suspicion was erroneous. We disagree.

Reasonable Suspicion & Nervousness

Reasonable Suspicion is based on the totality of the circumstances.

Officers are entitled to rely on their past training and experience and to make inferences and deductions based on factors that may well elude the untrained person. People v. Leighty, 362 Ill. App. 3d 258, 261, 838 N.E.2d 1014, 1018 (2005). The nervousness of a stopped driver may be appropriately relevant in an officer’s judgment when assessing suspicious behavior, even though many people are nervous when interacting with the police. See People v. Davenport, 392 Ill. App. 3d 19, 27-28, 910 N.E.2d 134, 140 (2009) (citing United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994).

An officer is free to evaluate a driver’s nervousness and the possible reasons therefor as part of the “totality of the circumstances”. People v. Moore, 341 Ill. App. 3d 804, 810-11, 792 N.E.2d 836, 842 (2003).

The Other Factors

Other things to consider are:

Implausible travel plans (People v. Collins, 2015 IL App (1st) 131145, ¶ 26, 42 N.E.3d 1)

• Strange behavior
• Conflicting stories (People v. Richardson, 376 Ill. App. 3d 612, 618-19, 876 N.E.2d 303, 309-10 (2007)), and the
• Presence of odors associated with drugs (People v. Boyd, 298 Ill. App. 3d 1118, 1127, 700 N.E.2d 444, 450 (1998)) or designed to mask the smell of drugs (People v. Roa, 398 Ill. App. 3d 158, 166, 923 N.E.2d 401, 409 (2010)).

Analysis

The record fully supports the trial court’s finding that the trooper had reasonable suspicion to justify further detention before he spoke with the passenger.

Three pieces of evidence, in particular, support this conclusion.

First, it is undisputed that defendants initially stopped in the middle of the right lane on I-55. The trooper testified that based on his prior experience, drivers pull off onto the side of the road the vast majority of the time. He further stated that in his experience, every time a car stopped in the middle of the road, he discovered something that resulted in an arrest.

Second, the trooper testified that in his experience, when a driver is told he or she is receiving a warning instead of a citation, his or her level of nervousness decreases. In this case, however, defendants’ nervousness never subsided despite repeatedly being told they would receive a warning.

Third, the trooper testified that defendants gave him a vague and implausible travel plan. The driver said they had traveled from Chicago to an unspecified location in Missouri (but not St. Louis) and stayed at a gas station for three to five hours. He further could not give specific answers regarding what defendants were doing while in Missouri.

They Were There Only 5 Hours

Common experience tells us that travelling for many more hours than one stays at his or her destination is unusual and, when travelling a great distance to cross state lines, can be suspicious. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (explaining that few people would travel 20 hours from Hawaii to Miami to spend just 48 hours at that destination, thus contributing to reasonable suspicion).

It was reasonable to be suspicious that defendants would travel to Missouri from Chicago and remain there only between three to five hours.

Likewise, defendants’ purpose for the short trip was not something common, such as seeing a baseball game or attending a family event. Instead, defendants “just hung out” at a gas station, which can certainly be seen as unusual and suspicious.

Additionally, the trooper thought it odd that Ibrahim could say only that he was in Missouri and did not know or “remember” the name of the town or address he visited. 

Innocent Explanations For Everything

Defendants argue each of the bases for finding reasonable suspicion can easily be explained as innocent conduct.

For instance, they emphasize that they are from a foreign country and sometimes have difficulty communicating in English. They claim it makes sense that foreigners, not well-versed in the methods of law enforcement in the United States, would be extremely nervous and remain so when dealing with police for the first time.

Additionally, one who has never been pulled over may not know the proper procedure, thus explaining why Ibrahim stopped in the middle of the right lane on an interstate highway and not on the shoulder.

Last, they assert that nervousness is of limited value because each person may show nervousness differently, and if an officer has no prior knowledge of how a suspect normally acts, the officer has no baseline for comparison.

However, as the State correctly notes, defendants cannot prevail by addressing— and attacking—each ground for reasonable suspicion in isolation. United States v. Arvizu, 534 U.S. 266, 274 (2002). Instead, a court’s focus should be on the totality of the circumstances, and even potentially innocent conduct may give rise to reasonable suspicion when aggregated.

The police are not required to “rule out” innocent conduct or default to believing behavior is innocent just because they may be presented with an ambiguous situation. People v. Close, 238 Ill. 2d 497, 511, 939 N.E.2d 463, 471 (2010).

This Federal Case On Totality Of The Circumstances

We find support for our conclusion in the recent decision of the United States Supreme Court in District of Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct. 577, 589 (2018), in which the Court reversed a decision of a federal appeals court that had concluded the officers involved in that case lacked probable cause to make an arrest.

The Court criticized the appellate court majority for engaging in an excessively technical dissection of the factors supporting probable cause. Indeed, the panel majority failed to follow two basic and well-established principles of law. The Supreme Court first noted that the panel majority viewed each fact in isolation, rather than as a factor in the totality of the circumstances. The Court noted that the totality of the circumstances requires courts to consider the whole picture, explaining that our precedents recognize that the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation.

The Court further held that the totality-of-the-circumstances test precludes this sort of divide-and-conquer analysis that the panel majority engaged in. The Supreme Court then pointed out that the panel majority mistakenly believed that it could dismiss outright any circumstances that were susceptible of innocent explanation. Instead, the Supreme Court explained that the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.

The Court concluded by writing the following:

“Thus, the panel majority should have asked whether a reasonable officer could conclude— considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a substantial chance of criminal activity.”

Holding

For the reasons stated, we affirm the trial court’s judgment.

See Also

Episode 533 - People v. Thomas, 2018 IL App (4th) 170440 (August) (excessive nervousness and rode trash didn't rise to the level of reasonable suspicion)

People v. Barajas, 2018 IL App (3d) 160433 (November)
People v. Garza, 2018 IL App (3d) 160684 (November). Episode 562 (Duration 20:33)

Helpful links and an update on important fines & costs cases.

First See

• Episode 511 - People v. Vara, 2018 IL 121823 (June) (appellate courts don’t have jurisdiction to fix improper fines imposed by the circuit clerk)
• People v. Harvey, 2018 IL 122325 (September) (appropriate for the appellate court to review the fines and costs assessed by the court)
• People v. Young, 2018 IL 122598 (September) (inappropriate for the appellate court to review the fines and costs illegally mandated by the clerk's office without a court order)

People v. Barajas Traffic Charges

The State charged defendant with operating an uninsured motor vehicle (625 ILCS 5/3-707 (West 2002)). Defendant pled guilty to the offense. The court sentenced defendant to pay $650 in fines.

Later, the State charged defendant with operating a motor vehicle when his registration was suspended for lack of insurance. An ex parte judgment was entered due to defendant’s failure to appear. The court found defendant guilty of the charged offense and sentenced defendant to pay $1000 in fines.

In a third offense, the State charged defendant with operating an uninsured motor vehicle. The court entered another an ex parte judgment. The court found defendant guilty of the charged offense and sentenced defendant to pay $501 in fines.

Motion To Vacate

Defendant filed a motion for revocation of all these various fines in the three cases.

Defendant alleged that he was unable to pay the fines imposed in these cases because he was then serving a five-year prison sentence on an unrelated charge and earned only $10 per month.

Good Cause He Couldn't Pay

Defendant said that he would be released on mandatory supervised release 11 months from the date of the motion. Defendant alleged the following “good cause” for his inability to pay his fines:

“1. [Defendant] must find housing to parole to. 2. [Defendant] must find employment as an ex-offender. 3. [Defendant] may have to attend programs for rehabilitation possibly recomended [sic] by the Prisoner Review Board, and pay fees for attendance. 4. [Defendant] has no family with the financial means to assist him upon release.”

Defendant filed with his motion an affidavit of finances and property.

Defendant attested that he

(1) earns an income of $10 per month while incarcerated;
(2) owns no property;
(3) must find housing upon his release from prison to comply with the terms of his mandatory supervised release;
(4) has no employment awaiting him upon release and has no income or other funds available;
(5) will need to find employment as an ex-offender;
(6) has no insurance, equities, real estate, annuities or inheritance; and
(7) has no family with financial means to assist him upon release from the Department of Corrections.

He Paid Some In One

In case No. 02-TR-10880, defendant paid $894 of the combined fines and fees balance of $926.

The court ruled that defendant had shown good cause to revoke the $32 balance of his fines.

He Paid Nothing In The Others

With regard to case Nos. 02-TR-19427 and 02-TR-19429, the court denied defendant’s motion.

The court explained that “[a]lthough the defendant has shown that that [sic] he is currently unable to pay said fines, he has not shown good cause for why over the period of the last 14 years or so *** very little has been paid on these cases.”

The Appeal

Defendant filed a notice of appeal in case Nos. 02-TR-10880, 02-TR19427, and 02-TR-19429. Defendant argues that the court abused its discretion when it denied his motion to revoke fines in case Nos. 02-TR-19427 and 02-TR-19429.

Defendant does not contest the court’s ruling in case No. 02-TR-10880 in this appeal.

The Code On Non Payment For Good Cause Shown 

Section 5-9-2 of the Unified Code of Corrections (Code) provides,

“the court, upon good cause shown, may revoke the fine or the unpaid portion or may modify the method of payment.”

730 ILCS 5/5-9-2.

Good Cause Shown For Non Payment

The “upon good cause shown” standard is ambiguous. 

In an attempt to define this standard, we reviewed the legislative history of Public Act 77-2097, which enacted section 5-9-2, and Public Act 87-396, which amended this section. See Pub. Act 77-2097, § 5-9-2 (eff. Jan. 1, 1973) (adding 730 ILCS 5/5-9-2); Pub. Act 87-396, § 1 (eff. Jan. 1, 1992) (amending 730 ILCS 5/5-9-2).

The record of the legislative proceedings on both of these acts provided no clarification of the good cause standard.

In the absence of legislative history, we look to the council commentary in the annotated statute for guidance. The council commentary establishes that a showing of good cause is tantamount to showing an inability to pay or a hardship that prevents a defendant from paying his fines.

Consistent with the council commentary, the Fourth District has observed that a court need not consider a defendant’s ability to pay at the time it imposes fines because “safeguards exist for those who in good faith are unable to pay a fine.” People v. Ruff, 115 Ill. App. 3d 691, 695 (1983). Those safeguards include the fine revocation provisions of section 5-9­ 2.

Therefore, to warrant revocation of a defendant’s fines, defendant must establish “good cause,” which is an “inability to pay” or a “hardship” that prevents him from paying the fines imposed by the court.

See 730 ILCS Ann. 5/5-9-2, Council Comments-1973, at 303 (Smith-Hurd 2007).

Holding

Upon review of the record, we find that the circuit court applied the incorrect standard when it ruled on defendant’s motion to revoke fines as the statutory good cause standard considers only defendant’s inability to pay or hardship and not the amount of fines paid.

In making this finding, the court erroneously expanded the good cause standard beyond inability to pay or hardship to include prior diligence as shown by the portion of the fines he had or had not previously paid. This was an abuse of its discretion.

Therefore, we vacate the court’s order revoking fines in case No. 02-TR-10880 and denying defendant’s motion as to case Nos. 02-TR-19427, and 02-TR-19429. We remand the cause with directions for the court to consider only defendant’s allegations and evidence of inability to pay or hardship to determine if he has established good cause to revoke his fines.

People v. Garza This Was A Plea

Defendant plead guilty an agreed to pay a $3000 substance abuse assessment, a $100 laboratory analysis assessment, and a $500 street value fine. The court awarded defendant $520 in sentencing credit toward defendant’s fines, which completely offsets the street value fine.

Motion To Not Pay Fines

Subsequently, defendant filed a motion to quash court costs and fines pursuant to section 5-9-2 of the Unified Code of Corrections (Code) (730 ILCS 5/5-9-2). Defendant’s motion sought to revoke his assessments on the basis that he lacked sufficient income and resources to pay his outstanding court costs.

The circuit court denied defendant’s motion, finding that it lacked jurisdiction and that the motion was untimely.

The Appeal

Defendant appeals the denial of his motion to quash his fines & costs.

Here, defendant’s motion sought to revoke or reduce the amount owed for three assessments the circuit court imposed at sentencing pursuant to section 5-9-2 of the Code. 

The Laboratory Assessment

First, defendant sought to revoke the laboratory analysis assessment.

The laboratory analysis assessment is not a fine. It is a fee, which is not subject to revocation pursuant to section 5-9-2 of the Code. See People v. Littlejohn, 338 Ill. App. 3d 281, 283 (2003).

The Substance Abuse Assessment

Second, defendant sought to revoke the substance abuse assessment.

The substance abuse assessment is a fine. However, this assessment is not subject to revocation pursuant to section 5­ 9-2. Instead, there are two separate statutory provisions available to a defendant seeking to reduce the balance of the substance abuse assessment.

Either a defendant “may petition the court to convert all or part of the assessment into court-approved public or community service,” or “[t]he court may suspend the collection of the assessment” if a “defendant agrees to enter a [court approved] substance abuse intervention or treatment program” (so long as defendant agrees to pay for some or all of the costs associated with treatment or intervention).

See 720 ILCS 570/411.2(e), (f).

Analysis

Defendant here did not petition the court to convert the substance abuse assessment into an approved public service or seek to complete an approved substance abuse intervention or treatment program. Rather, defendant sought to revoke his fines on the basis that he lacked sufficient income and resources to pay the outstanding court costs.

Defendant’s ability to pay this assessment is not an enumerated factor for the circuit court to consider when determining to reduce or revoke this particular fine.

Because defendant failed to include a request pursuant to these statutory sections in his motion, this argument is not properly before this court.

The Street Value Fine

Lastly, defendant sought to revoke the street value fine. This fine is subject to revocation pursuant to section 5-9-2 of the Code. However, this fine was completely offset by the presentence custody credit defendant received. See 725 ILCS 5/110-14(a).

Therefore, remand for a hearing on the revocation of this fine is unnecessary. Consequently, we conclude that the circuit court did not err when it denied defendant’s motion to quash court costs and fines. 

Holding

Specifically, we find that although the court’s reasoning was incorrect, the denial of defendant’s revocation motion was proper because the assessments defendant sought to revoke were either not subject to revocation or completely offset by the presentence custody credit. The judgment of the circuit court of La Salle County is affirmed.

The Cases With The Fines & Costs Chart

• People v. Williams, 2013 IL App (4th) 120313 (June)
• People v. Johnson, 2015 IL App (3d) 140364 (December)

See Also

• Episode 636 - People v. Ross, 2019 IL App (3d) 170028 (May) (How to get a little money back for your client if they don't finish the probation)
• People v. Clark, 2018 IL 122495 (December) (2019 will see a new fines and fees law take effect, Supreme Court stuck it to this guy right before the law change.)
• Fines 730 ILCS 5/5-9-1
• Undue Hardship 730 ILCS 5/5-9-2
• People v. Contursi, 2019 IL App (1st) 162894 (February) (Court must take into account the future ability to pay when assessing an appropriate felony fine.)
• $5 Credit   725 ILCS 5/110-14(a)
• Substance Abuse Assessments 720 ILCS 570/411.2

The Criminal and Traffic Assessment Act

On August 20, 2018, the Criminal and Traffic Assessment Act was enacted into law. Pub. Act 100-987 (eff. July 1, 2019). It repeals the charge-imposing statutes at issue in this case. Id. §§ 905-43, 905-57. It specifically incorporates the $2 Public Defender Records Automation Fund charge, the $2 State’s Attorney Records Automation Fund charge, the $15 court automation charge, and the $15 Court Document Storage Fund charge as assessments subject to any presentence credit remaining after it has been applied to fines. Id. § 5-20(a). Except for certain inapplicable portions, the act takes effect July 1, 2019. The act is not retroactive.

The Criminal and Traffic Assessment Act began with the legislature’s creation of the Statutory Court Fee Task Force in the Access to Justice Act. 705 ILCS 95/25 (West 2014). This task force was composed of members representing all three branches of Illinois government. Id. The task force was instructed to study the various fees imposed on criminal defendants and civil litigants and to submit a report of findings and recommendations to this court and the General Assembly. Id. In response to that report, the General Assembly enacted the Criminal and Traffic Assessment Act, which consolidated the assessment of criminal and traffic fines and fees in this state and explicitly stated how the presentence incarceration credit applies. Pub. Act 100-987 (eff. July 1, 2019)

See People v. Clark, 2018 IL 122495,¶ 14, 15 (December)

 People v. Williams, 2018 IL App (2d) 160683 (October). Episode 558b (Duration 11:25)

Challenging this DUI traffic stop gave us a reason to review exactly what it takes for police to find probable cause for a DUI arrest in Illinois.

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  The Stop

Around 1 in the morning officer sees a car with the left-turn arrow activated. It then proceeded straight through the intersection. The car then lunged into the intersection, paused, and then continued through into the parking lot for the Elgin Mall.

The officer stopped the car.

DUI Indicia

Defendant’s speech was “kind of mumbled, slow and slurred,” and he smelled an alcoholic beverage “coming from [defendant’s] person.” Defendant advised the officer that he had come from a bar—JB’s.

Defendant said he had consumed four beers.

DUI Investigator Arrives

Suspecting that defendant might be impaired, the first officer called a second officer to the scene. The second officer was more experienced in DUI investigations. The second officer arrived a few minutes later.

The DUI investigator testified that he spoke with defendant and asked him to step out of the vehicle. Defendant emerged from the vehicle without stumbling or falling, but he swayed as he stood outside the vehicle.

The second officer also smelled the odor of alcohol on defendant. He also noticed the defendant’s eyes were “red, bloodshot, glassy, watery.”

Defendant refused to perform field sobriety tests. Defendant said a football injury prevented him from performing the tests. He also claimed that he could not walk a straight line sober.

Defendant was then arrested for DUI.

The Car Search

The car was searched and police discovered what appeared to be cannabis pipes. They still had a little cannabis inside them.

No Fields, No Blow But Guilty

At the station defendant refused to take the breath test. 

The jury found defendant guilty of the three charged offenses. Defendant was sentenced defendant to an 18-month term of conditional discharge and 240 hours of community service.

Issue

Defendant contends that there was no probable cause to arrest him for DUI.

DUI Probable Cause

“Probable cause to arrest exists when the totality of 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.”

A person is under the influence of alcohol when he or she is less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public.

In People v. Wingren, 167 Ill. App. 3d 313, 320 (1988), this court observed that “[p]robable 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.”

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 or, as in the case at bar, being in a vehicle which is stuck in the mud.

People v. Motzko

Defendant’s reliance on Motzko is misplaced.

See Episode 347 – People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (defendant wins his motioin to supporess no probable casue for DUI). 

Here, the trial court’s determination that there was probable cause to arrest defendant for DUI was not based solely on the odor of alcohol, defendant’s slurred speech, and his bloodshot eyes. In addition, defendant improperly proceeded straight through the intersection when the green left-turn arrow came on.

Not Completely Incapacitated By Alcohol

Defendant notes that he had no apparent difficulty maneuvering his vehicle.

However, even a conviction of DUI does not require proof that the defendant “was completely incapacitated by alcohol.” People v. Tatera, 2018 IL App (2d) 160207, ¶ 29. The prosecution need prove only that the defendant “was impaired by alcohol *** to the extent that it rendered him incapable of driving safely.”

See Episode 498 – People v. Tatera, 2018 IL App (2d) 160207 (May) (bad HGN test inadmissible but jury could still consider defendant’s inability to follow instructions)

See Also

Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI & Defendant Couldn’t Follow Directions During The HGN)

He Ran A Red Light

Driving through a red light was evidence that defendant lacked the mental clarity to operate his vehicle safely.

Yet, contends that his “one instance of ‘poor driving’ was fully explained by the condition of his vehicle.” However, other than defendant’s self-serving statements, police had no reason to believe that defendant’s vehicle was not in good working order.

While defendant may offer innocent explanations for his behavior, that does not prevent the police from acting on their well-founded conclusions.

After all, the assessment of probable cause is based on the totality of the facts, and a reasonably prudent person would be aware of a defendant’s incentive to fabricate an innocent explanation in order to avoid arrest and prosecution.

While We Are At It…

Although defendant offered an excuse—a football injury—for his refusal to perform tests, but this excuse did not negate probable cause.

Defendant contends, however, that the evidence of his guilt was insufficient because he was able to drive his car through the intersection without weaving or jerking, he activated his turn signal, he properly pulled into a parking space, he exited his vehicle without hesitation and without stumbling or falling, and he was able to communicate with the officers.

Defendant’s argument is without merit. A motorist’s ability to perform a number of tasks without any indication of impairment does not necessarily create a reasonable doubt in a DUI prosecution. 

Plus He Was Swaying

Michael and Bajak also observed defendant swaying.

That observation is a factor supporting the trial court’s conclusion that there was probable cause to arrest defendant for DUI. See People v. Anderson, 2013 IL App (2d) 121346, ¶ 25.

Refusal Counts For Something

Furthermore, defendant’s refusal to perform field sobriety tests was probative of impairment. See Tatera, 2018 IL App (2d) 160207, ¶ 28 (listing defendant’s refusal to perform any field sobriety tests among factors contributing to conclusion that evidence was sufficient to sustain defendant’s DUI conviction).

Holding

We therefore conclude that there was probable cause to arrest defendant for DUI.

That conclusion disposes of defendant’s argument that the evidence seized during the search of his vehicle should have been suppressed. We note the defendant challenge the search of his vehicle after his arrest. There was no Arizona v. Gant challenge. 

Accordingly, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of DUI.

See These Older Cases

In People v. Weathersby, 383 Ill. App. 3d 226 (2008), we affirmed a DUI conviction on the basis of evidence similar to the evidence in this case. In that case, the defendant’s speech was “thick-tongued,” his eyes were glassy, a three-quarters-empty bottle of malt liquor was found in his vehicle, and his breath smelled of alcohol. The defendant also refused to take a breath test.

Here, defendant’s “eyes were glassy and bloodshot” and that his speech was “thick-tongued and slurred.” See Wingren, 167 Ill. App. 3d at 320 where probable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes. 

The odor of alcohol on a defendant’s breath and his inadequate performance of a field sobriety test do not constitute reasonable grounds to believe that the defendant was driving under the influence. See People v. Boomer, 325 Ill. App. 3d 206, 209 (2001) (officer lacked probable cause to arrest defendant for DUI where defendant was involved in accident, admitted drinking, and had the odor of alcoholic beverage on his breath).

This Is Probably Now The Law

Episode 294 – People v. Day, 2016 IL App (3d) 150852 (January) (no probable cause for this DUI arrest, defendant passed the FST’s and he was driving nearly perfect). Where a defendant admitted to drinking, had the strong odor of alcohol on his breath, had bloodshot eyes, and slurred his speech, the trial court properly ruled that the officer lacked probable cause to arrest the defendant for DUI because any suspicions of impairment were not corroborated by other factors, such as poor driving, stumbling, falling, or an inability to communicate.

Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. See People v. O’Brien, 227 Ill. App. 3d 302, 307 (1992) (no probable cause to arrest defendant for DUI where defendant was speeding, admitted to drinking, and unsuccessfully performed sobriety test).

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific Plus Identity Information Is Suppressible)

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People v. Stewart, 2018 IL App (3d) 160205 (November). Episode 560 (Duration 5:23)

You got to object when they try to admit the gun letter.

Gun Charges

The State charged defendant with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C)) and aggravated assault (id. § 12-2(c)(2)).

Defendant fired a gun at his place of employment. He damaged a window of a house across the street from his factory.

Certification Letter

Before the conclusion of the State’s case-in-chief, the State introduced into evidence a certification letter from the Illinois State Police, indicating that the defendant did not possess a valid FOID card. The court asked defense counsel if he had “[a]ny objection.”

Counsel responded “I think it’s self-authenticating.”

The court replied “[i]t is and you know that” and admitted the certification letter into evidence.

The certification letter stated:

“Based on the following name and date of birth information provided by the La Salle County State’s Attorney’s Office, I, Public Service Administrator Beth Kiel, Firearms Services Bureau (FSB), Illinois State Police, do hereby certify, after a careful search of the FSB files, the information below to be true and accurate for Brandon D. Stewart whose date of birth is February 28, 1986, has never been issued a [FOID] Card as of February 19, 2016.”

The bottom of the certification letter bears Kiel’s signature and notarization.

It's Not Self-Authenticating

See Episode 182 - People v. Diggins, 2016 IL App (1st) 142088 (May). 

In Diggins, over defendant’s objection, the State introduced a letter that attested Shawan Diggins did not possess a valid FOID card. Diggins, 2016 IL App (1st) 142088, ¶¶ 6-7.

The trial court overruled counsel’s objection, stating “ ‘[i]f you want an opportunity to subpoena and cross-examine the witness and bring that person in as a witness on behalf of the [d]efense, I will give you that opportunity.’ ” Id. ¶ 7.

On appeal, Diggins argued that the admission of the letter violated his constitutional right to confrontation. Id. ¶ 11. The First District found that the introduction of the letter, over defense counsel’s objection, violated Diggins’s right to confront the witness, the author of the letter.

Sentence

The jury returned verdicts of guilty on both charges.

After hearing the evidence and arguments on the sentencing alternatives and aggravating and mitigating factors, the court sentenced defendant to a total of 2 years’ imprisonment.

Issue

Defendant argues that the admission of the certification letter is reversible plain error because the error threatened to tip the scales of justice against him.

The parties’ arguments require that we determine whether this issue is reviewable under the plain-error doctrine or is the result of acquiescence. Additionally, underlying both the plain-error doctrine and acquiescence is the principle of “procedural default.” Acquiescence is a form of procedural default. The plain-error doctrine provides a narrow and limited exception to the general [rule of procedural default.

Analysis

Acquiescence is not subject to the plain-error doctrine. This is because a party who acquiesces in proceeding in a given manner cannot show he was prejudiced by the proceeding.

In the instant case, the State introduced into evidence a certification letter that stated defendant did not possess a valid FOID card. The court then expressly asked defendant if he had any objection to the certification letter.

Defense counsel voiced no objection, and instead, responded “I think it’s self-authenticating.” Defense counsel’s statement is not a direct agreement to the introduction of the certification letter. However, the combination of defense counsel’s response and lack of objection establishes that defense counsel acquiesced to the admission of the certification letter. See, e.g., People v. Cox, 2017 IL App (1st) 151536 (Spetember), ¶ 76 (defense counsel invited error by not objecting to the admission of a certification letter that stated defendant did not possess a FOID card).

This acquiescence, in turn, functioned as a waiver of defendant’s right to confront this witness by acquiescing to the admission of the certification letter.

Defense counsel’s acquiescence to the admission of the certification letter effectively waived defendant’s right to confront the witness and any associated claim of error. Therefore, defendant’s challenge is limited to a claim of ineffective assistance of counsel.

See Also People v. Cox

In Cox, 2017 IL App (1st) 151536, ¶ 1, the State had charged Jesse Cox with AUUW based on his failure to possess a FOID card. At trial, the State introduced a letter, similar to the instant case, documenting that Cox did not possess a FOID card.

The court asked defense counsel twice if she had any objection to the admission of the letter into evidence.

Twice, defense counsel responded in the negative. 

On appeal, Cox argued that the court violated his constitutional right to confront the witness who signed the letter. The First District concluded “the defense invited the trial court to admit the certification [letter] by affirmatively responding to the trial court’s questions that it had no objection to its admission,” and therefore, the admission of the letter did not violate Cox’s right to confront the authoring witness. 

The Cox court differentiated the facts in People v. Diggins, 2016 IL App (1st) 142088, the case that defendant relies on in this appeal, because defense counsel did not object to the introduction of the letter. Cox, 2017 IL App (1st) 151536, ¶ 82. Therefore, in Cox, the court found defense counsel “waived the opportunity for prior cross-examination by stating affirmatively that he had no objection to admitting the document.”

Defendant argues Cox was wrongly decided and Diggins dictates the outcome of this appeal.

Here, the instant case is more analogous to Cox because defense counsel did not object to the admission of the letter in this case, when directly asked by the court for an objection. In both the instant case and Cox, defense counsel’s response to the court’s question regarding an objection to the evidence constitutes waiver of defendant’s constitutional right to confront this witness. 

Therefore, like Cox, defendant’s confrontation claim is not subject to review under the plain-error doctrine.

Not Ineffective Assistance Neither

In the instant case, the only way defense counsel’s decision not to object to the admission of the certification letter could be said to be the result of ineffective assistance is if defendant actually possessed a valid FOID card.

If defendant possessed a valid FOID card at the time of the offense, the certification letter introduced would be erroneous, and the State could not prove an essential element of the AUUW charge that was based on the theory that defendant did not possess a valid FOID card. See 720 ILCS 5/24­ 1.6(a)(3)(C).

The record is devoid of any indication that defendant actually possessed a valid FOID card at the time of the incident. Therefore, defense counsel’s performance was not deficient for failing to object.

Holding

Moreover, counsel’s inaction was consistent with his trial strategy that defendant did not shoot a gun. Accordingly, we conclude defense counsel’s decision not to object to the admission of the certification letter was not the result of ineffective assistance of counsel.