Kane County Nuggets

People v. Hoare, 2018 IL App (2d) 160727 (January). Episode 474 (Duration 12:36)

Improper immigration advice is back on the table in a messy way after Lee v. U.S.

This is a post conviction petition alleging improper immigration advice.

Defendant, who counsel knew was a Belize national and not a United States citizen, was charged with possession of cocaine.

Defendant told counsel that a federal official had informed him that a conviction would mean deportation.

Counsel himself discussed the matter with an immigration attorney, but defendant was not present at the discussion. Between taking the case and appearing at the plea hearing, counsel did not tell defendant that a guilty plea and 410 probation would be a conviction under the Immigration Act or that they would result in his deportation.

Counsel told defendant that a guilty plea and 410 probation “could result in adverse consequences” for his immigration status. Counsel also told defendant that a guilty plea with the successful completion of 410 probation would not be a conviction under Illinois law.

Based on the foregoing, defendant contends that, under Padilla, counsel’s performance was objectively unreasonable.

Defendant reasons that counsel’s general and inconclusive advice that the prospective guilty plea “could” result in “adverse consequences” was insufficient to convey the harsh reality that entering the plea would leave him defenseless against deportation.

Defendant relies on Padilla’s statement:

“When the law is not succinct and straightforward ***, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear ***, the duty to give correct advice is equally clear.”

Padilla, 559 U.S. at 369.

Under the plain language of the Immigration Act, a “conviction” of that offense subjected him to deportation with no recourse other than the forbearance or neglect of federal authorities. And, under the plain language of the Immigration Act, as held by a federal appellate court, a “conviction” included a guilty plea and 410 probation.

Put differently, were defendant convicted of the offense, either by a plea or after a trial, he would be legally defenseless against deportation.

Section 1227(a)(2)(B)(i) of the Immigration Act states plainly that a “conviction” of possessing cocaine (and almost any other drug offense) makes a defendant “deportable.” 8 U.S.C. § 1227(a)(2)(B)(i) (2012).

And, although section 1101(a)(48)(A) is not as simple or straightforward as section 1227(a)(2)(B)(i), it should have been clear to counsel that 410 probation was a “form of *** restraint on [defendant’s] liberty.” 8 U.S.C. § 1101(a)(48)(A) (2012).

Moreover, to the extent that this language required construction, the Seventh Circuit had provided it in Gill, under circumstances that fit defendant’s situation, leaving no plausible doubt that, by pleading guilty in return for 410 probation, defendant would be deportable without recourse.

Thus, as in Padilla, the deportation consequence was “truly clear.” Padilla, 559 U.S. at 369.

Measured by this standard, defendant’s petition stated the gist of a meritorious allegation that counsel performed deficiently by failing to inform him that a guilty plea to the charge of cocaine possession, even with 410 probation, would make him deportable with no opportunity for relief, save the neglect or indifference of federal authorities.

The law, especially in view of Gill, made it plain that, by accepting the plea agreement, defendant was signing away any legal right or basis to avoid deportation. Counsel was obligated to give him more than the tentative and vague advice that his plea “could result” in “adverse immigration consequences.”

Counsel was obligated to tell defendant the concrete and easily ascertained truth: that the plea would strip defendant of any defense to deportation. Counsel did not affirmatively mislead defendant, but, under Padilla, that was not needed to establish professionally unreasonable performance.

When the consequences of a guilty plea are clear, certain, and succinct, trial counsel cannot satisfy his obligation with advice that is vague and equivocal.

More specifically, if it is clear that deportation is legally automatic, as it was in Padilla and Torres and is here, the attorney fails Strickland’s performance standard by advising his client only that a guilty plea might affect his immigration status and that he should consult an immigration attorney.

Moreover, we cannot agree with the trial court here that the admonishments that defendant received made up for any deficiency in counsel’s representation.

The proceedings continued:

THE COURT: For all of these, though, do you understand that for the drug case, this 410 probation as we’re calling it, is a special kind of probation. A conviction is not being entered for Illinois law purposes today. If you successfully complete the probation, then there won’t be a conviction for that. There will be on the traffic offense. But regardless, these dispositions could result in the federal government trying to remove or deport you from the United States or prevent you from obtaining naturalized United States citizenship. Nobody here, not the lawyers, not me, nobody, can make you any promises or representations as to what the federal government might do. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Grimes [(defendant’s attorney)], have you and your client had an opportunity to look into the immigration consequences?

MR. GRIMES: Yes, Judge. We believe that this is an appropriate disposition taking that into account.

THE COURT: Okay. And you had a chance to speak with immigration?

MR. GRIMES: An attorney.

THE COURT: You spoke to an immigration attorney?

MR. GRIMES: Yes.

THE COURT: Okay. Is that correct, sir?

THE DEFENDANT: Yes, sir.”

The court did not advise defendant any more specifically or clearly than did counsel. Indeed, by conveying that “nobody” could make defendant any “promises” about the immigration consequences of his plea, the court’s admonishments were false, insofar as counsel was required to definitively articulate these consequences.

Thus, based on Padilla as binding, and Torres, which is factually indistinguishable from this case, as persuasive, we hold that defendant’s petition, taken as true and construed liberally, states the gist of a meritorious claim that counsel performed unreasonably under the first prong of Strickland.

Defendant contends that here the law was succinct and straightforward, making the deportation consequence of a guilty plea clear: he could not avoid deportation. Therefore, he reasons, counsel’s advice that defendant “could” be subject to “adverse immigration consequences” was precisely what Padilla implies is deficient performance in a case such as this one. We agree

We conclude that defendant’s petition stated the gist of the first half of a meritorious claim of ineffective assistance of counsel—deficient performance.

We are aware that there is authority from this court that might be taken to hold otherwise. See People v. Carranza-Lamas, 2015 IL App (2d) 140862, ¶¶ 45-47.

In Carranza-Lamas, the defendant, per an agreement, pleaded guilty to unlawful possession of cocaine and received two years of 410 probation. Before accepting the plea, the trial court admonished him that a conviction of his offense “may have the consequence of deportation, denial of naturalization or exclusion of admission to the United States if you are not a citizen of the United States.”

Defendant files a petition and alleged that the defendant’s trial attorney had been ineffective for misadvising him that a guilty plea and 410 probation would not be a conviction for immigration purposes. The trial court found that the defendant had not proved prejudice under Strickland.

The court explained that unlike the defendant in Padilla, the defendant had already been subject to deportation and involved in deportation proceedings; thus, even before being charged, he had known that he could be deported. We reasoned first (and primarily) that “researching [section 1101(a)(48)(A) and Gill] leads to the conclusion that section 410 probation is considered a conviction for immigration purposes, but it is not as clear as the statute at issue in Padilla.”

 We noted second (and secondarily) that, in the defendant’s particular circumstances, the attorney had to confront a separate and much more complicated issue—whether the defendant’s conviction would restrict the availability of discretionary postdeportation relief if he married a United States citizen.

This issue involved the interpretation of at least one additional and separate statute, which was “even less clear on its face” than section 1101(a)(48)(A) and thus was not subject to Padilla’s high standard for a case in which the law is “ ‘succinct and straightforward.’ ” Id. (quoting Padilla, 559 U.S. at 369); see 8 U.S.C. § 1252(a)(2)(C) (2006).

Therefore, we held that the attorney’s performance had not been deficient under the first prong of Strickland, and we affirmed the judgment.

The primary reason that we distinguished Padilla does potentially apply. However, to the extent that Carranza-Lamas does militate against defendant here, we decline to follow it.

In Carranza-Lamas, we distinguished Padilla on the following basis. In Padilla, and cases to which the Court plainly intended its opinion to apply, the defendant’s attorney needed to concern himself only with section 1227(a)(2)(B)(i), which made a cocaine conviction automatically deportable—and this section was succinct and straightforward. But, in CarranzaLamas, the defendant’s attorney had to inform himself of (1) section 1227(a)(2)(B)(i), which made a cocaine conviction deportable, and (2) section 1101(a)(48)(A), which made 410 probation a “conviction” under section 1227(a)(2)(B)(i)—and this section (even after Gill) was “not as clear as the statute at issue in Padilla.”1 Carranza-Lamas, 2015 IL App (2d) 140862, ¶ 47.

We must acknowledge that the foregoing reasoning is simply not persuasive.

Although the legal situation in Carranza-Lamas was not as simple as the one in Padilla, it was as clear.

In Padilla, as we noted in the preceding paragraph, the trial attorney had to take one step, which was straightforward. In Carranza-Lamas, the trial attorney had to take two steps—the same one as had the attorney in Padilla, followed by a second one that had not been present in Padilla. The second step was straightforward too, and it led to an unambiguous conclusion.

The second step was, as noted, to determine whether section 1101(a)(48)(A) made a guilty plea and section 410 probation a “conviction” under section 1227(a)(2)(B)(i). That was not a difficult matter for the trial attorney. First, section 1101(a)(48)(A), though not as short and concise as section 1227(a)(2)(B)(i), was still unambiguous. It made a guilty plea, combined with a “punishment, penalty, or restraint on the alien’s liberty” (8 U.S.C. § 1101(a)(48)(A) (2012)), a conviction for immigration purposes (8 U.S.C. § 1227(a)(2)(B)(i) (2012)).

Surely the attorney should have grasped that a term of probation, even one with the possibility of having the slate cleared later if the defendant met its conditions, was a punishment, penalty, or, at the very least, a restraint on the defendant’s liberty. Moreover, any doubt that the attorney entertained should have been cleared up by the eight-year-old opinion in Gill, which held that a guilty plea and 410 probation constitute a conviction under section 1227(a)(2)(B)(i).

Thus, we cannot endorse our prior statement that section 1101(a)(48)(A) was not as clear as section 1227(a)(2)(B)(i). Especially in light of Gill, the former statute was no less clear than the latter. The situation confronting counsel here was no more difficult than that confronting the trial attorney in Carranza-Lamas (and the one in Torres).

In Carranza-Lamas, the attorney had the plain language of section 1101(a)(48)(A) and the even plainer command of Gill to tell him that a guilty plea and 410 probation constituted a conviction that triggered section 1227(a)(2)(B)(i). Here, counsel had the plain language of section 1101(a)(48)(A), the even plainer command of Gill, and our acknowledgment in Carranza-Lamas that, under the statute and Gill, a guilty plea and 410 probation constituted a conviction that triggered section 1227(a)(2)(B)(i).

We turn to the second half— prejudice.

We hold that, under the Supreme Court’s recent decision in Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958 (2017), the allegations of defendant’s petition were minimally sufficient to satisfy Strickland’s prejudice prong.

In Lee SCOTUS said that theoretically, even had the defendant been fully aware that his chances of acquittal were remote, he might still have elected that distant chance over the certainty of deportation following a guilty plea. The Court cautioned that, to decide whether a defendant has proved prejudice, a court “should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.”

In the “unusual circumstances” before it, the Court held that the defendant had met his burden of proof. 

Before entering the plea, the defendant had repeatedly asked his attorney whether there was any risk of deportation. At the guilty-plea hearing, the defendant had told the judge that the risk of deportation affected his decision, and he pleaded guilty only after receiving a misleading assurance from the attorney. At the hearing on the postconviction action, both the defendant and the attorney testified that the defendant would have gone to trial had he known the deportation consequences of pleading guilty.

The consequences of deportation would have been even more severe than usual, as the defendant had lived in the United States for nearly three decades without returning to South Korea or retaining any ties to the country, had established successful businesses here, and was the only family member in the United States who could care for his elderly parents, who were naturalized citizens.

Thus, it would not have been “irrational” for him to reject the absolute certainty of deportation that would result from a guilty plea and risk the near certainty of deportation that would result from going to trial, especially as the likelihood of a somewhat longer prison sentence in the event of a conviction was far less of a consideration for him.

Of course, as our review is de novo, the trial court’s reliance on pre-Lee law is of no consequence.

However, according to the petition, when he pleaded guilty, he had been married to a United States citizen for more than six years and had two small children who also lived in the United States. Both he and his wife were employed in the United States and had no desire to move elsewhere.

Although defendant’s petition gave little other detail about his ties to either the United States or his native Belize, it contained nothing to undermine the inference that the former connections were much stronger than the latter.

Thus, we cannot say that the petition’s allegation that defendant would have gone to trial, had he known that deportation was certain upon a plea of guilty, was frivolous or patently without merit. At this stage, no more was required. 

Here, defendant does not confront a judgment entered after a hearing but need show only that, at the first stage of a postconviction proceeding, he has established the gist of a meritorious claim.

The “gist” standard is a low threshold.

Given these standards, we hold that the petition sufficiently stated the gist of a meritorious allegation of prejudice under Lee. Defendant did not articulate a plausible defense, much less actual innocence. We note that the trial court, having ruled before the Supreme Court issued its opinion in Lee, placed decisive weight on the absence of either a claim of actual innocence or a plausible defense.

For the foregoing reasons, we reverse the judgment of the circuit court of Lake County and we remand the cause for second-stage proceedings under the Act.

Episode 242 - People v. Valdez (judge’s immigration admonishments cured the lack of any immigration advice from trial counsel)

Episode  272 - People v. Valdez (What To Tell Your Clients About Immigration)

Episode 111 - People v. Unzueta (possible immigration information from trial attorney brought up in the postconviction petition)

Episode 110 - People v. Guzman (failure of court to admonish defendant of immigration consequences does not necessarily lead to reversal)

Episode 436 - People v. Brown (defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case)

This is the March 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 473 (Duration 30:10)

Click here to download the written summary of these cases:  March 2018 Round-Up 

Here's a quick snapshot of the top cases:

1. People v. Manning

Jury wanted to know what happens if they can't agree on second degree murder.

2. People v. Encalado

There is no body of case law documenting the public shaming of patrons of prostitutes.

3. People v. Meo 

Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.

4. People v. Lawson 

Defendant had a rare blood condition, that was not considered an extraordinary circumstance.

5. People v. Hamerlinck

Defendant stipulated to the BAC then tried to argue there was error in admitting it.

6. People v. Boose 

Sloppy drafting of a warrant means all the murder evidence is out.

7. People v. Ramos

Historical cell site analysis (HCSA) testimony was ruled inadmissible hearsay in this case.

8. People v. Ziemba

Defendant is convicted of a class X for setting up a sexual encounter with a 15 year old.

9. People v. Perez

State's witness affirmatively damaged the state's case when he changed his testimony at trial.

10. People v. Anderson 

Statement errors means this murder is going back for a new trial.

11. People v. Shepherd 

Trial judge is hell bent on finding an ethical violation where there is none.

12. People v. Burlington 

Fourth district goes the other way on retail theft burglaries.

13. People v. Jones

Defendant didn't make a clear unequivocal demand for trial so it counts as a date by agreement.

14. People v. Ely

Defendant was shackled during his bench trial but he is not entitled to a new trial.

15. People v. Jophlin

State was not vindictive when they charged defendant with a higher class DUI the day of trial.

16. People v. Williams

Judge can't use the fitness evaluation report against the defendant at sentencing.

17. People v. Pittman 

Really nasty triple murder by a youthful offender.

18. People v. Smolley

16 year old defendant sentenced to 65 years in prison, a de facto life sentence, gets a new sentencing hearing.

19. People v. Joiner

This 16 year old defendant does get a new sentencing hearing even though the new statutes clearly does not apply to him.

20. People v. Walker

Defendant was 17 when he received a discretionary life sentence; he got all the protection that the constitution says he should have gotten.

21. People v. Redmond

Judge didn't tell him about maximum sentence when defendant said he wanted to go pro se.

22. People v. Zetterlund

Another defendant says SORA is unconstitutional; he loses.

23. People v. M.R. 

Minors charged with possession of stolen vehicle must be charged in juvenile court.

24. People v. Gibson

Yet another Jon Burge confession leads to a full hearing on postconviction petition.

25. People v. Ephraim

Defendant gets 6 year off his sentence because his prior agg bat conviction did not involve bodily harm.

People v. Burlington, 2018 IL App (4th) 150642 (March). Episode 472 (Duration 7:42)

Fourth district goes the other way on retail theft burglaries.

Defendant entered a Menards, went directly to a digital camera recording system, removed the system from the shelf, walked through the cash register area, and attempted to leave the store.

After being stopped by a cashier, defendant attempted to return the item at the service desk for cash.

Langlois was watching the attempted return in real time and could hear the conversation between defendant and the employee at the service desk through the microphone located on the service desk. Defendant denied stealing the item.

Deputy Dowdy interviewed defendant in the loss prevention room. Defendant told Deputy Dowdy he had entered the store to take an item and return it for United States currency because he owed a man named Tony money for drugs. If he did not pay Tony, he would be physically harmed.

Defendant also indicated he had bought a screwdriver while in Menards but that was not the reason why he went there.

The jury found defendant guilty of burglary. He was sentenced as a class X offender to 7 years.

Section 19-1(a) of the Criminal Code of 2012 (720 ILCS 5/19-1(a) (West 2014)) provides, in part, the following:

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.”

As our supreme court has explained, the burglary statute provides for two ways to commit the offense of burglary:

“(1) by entering without authority and with the intent to commit a felony or theft or
(2) by remaining without authority and with the intent to commit a felony or theft.” Bradford, 2016 IL 118674, ¶ 13 (citing 720 ILCS 5/19-1(a) (West 2012)).

In this case, defendant was convicted of the first type of burglary, in that he, without authority, knowingly entered Menards with the intent to commit a theft therein.

However, defendant’s argument relies heavily on our supreme court’s decision in Bradford, where it addressed what it meant “to remain without authority in a public place of business,” which is the second type of burglary. Bradford, 2016 IL 118674, ¶ 14.

Fifty years ago, in People v. Weaver, 41 Ill. 2d 434, 243 N.E.2d 245 (1968), our supreme court addressed the “without authority” language of the first type of burglary. There, the police had observed the defendant in a self-service laundromat standing near a vending machine, of which the door was open.

It explained the statute required an entry that is

(1) without authority and
(2) with the intent to commit a felony or theft.

Weaver, 41 Ill. 2d at 439.

A criminal intent formulated after a lawful entry does not satisfy the statute. Weaver, 41 Ill. 2d at 439. However, the “authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open.” Weaver, 41 Ill. 2d at 439.

On the facts of that case, the supreme court found the “entry with intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat.” Weaver, 41 Ill. 2d at 439. The evidence defendant and his codefendant had no laundry, could have used a telephone outside the building, and had keys to the vending machine inside vehicles belonging to defendant and his codefendant was sufficient for a jury to find, beyond a reasonable doubt, defendant entered the laundromat with the intent to commit a theft. Weaver, 41 Ill. 2d at 439.

Our supreme court followed its holding in Weaver in the case of People v. Blair, 52 Ill. 2d 371, 374, 288 N.E.2d 443, 445 (1972), where it rejected the two defendants’ argument a car wash was a public place and, thus their entry was not “without authority.” Numerous appellate court cases have also followed Weaver’s holding that entry of a public building with the intent to commit theft constitutes an entry “without authority.” See People v. Gharrett, 2016 IL App (4th) 140315, ¶ 53, 53 N.E.3d 332 (collecting cases).

One such case with facts similar to those before us is People v. Rudd, 2012 IL App (5th) 100528, ¶ 13, 970 N.E.2d 580.

As stated, defendant’s argument relies on our supreme court’s decision in Bradford. There, the court held “an individual commits burglary by remaining in a public place only where he exceeds his physical authority to be on the premises.” Bradford, 2016 IL 118674, ¶ 31.

Under that definition, burglary by remaining includes situations in which an individual enters a public building lawfully but, in order to commit a theft or felony, the individual does one of the following:

“(1) hides and waits for the building to close [citation],
(2) enters unauthorized areas within the building [citations], or
(3) continues to remain on the premises after his authority is explicitly revoked.”

Bradford, 2016 IL 118674, ¶ 31.

The court further explained “an individual who enters a building lawfully, shoplifts merchandise within areas which are open to the public, then leaves during business hours, is guilty of ordinary retail theft.” Bradford, 2016 IL 118674, ¶ 31.

We find the supreme court’s decision in Bradford does not affect the holding of Weaver and its progeny. While it rejected the State’s interpretation of the second type of burglary based on Weaver’s holding, the decision in no way indicated Weaver was no longer good law for the first type of burglary. The supreme court specifically only addressed the second type of burglary.

The Bradford decision did not state an entry into a public building with a criminal intent is now a lawful entry.

Additionally, unlike the second type of burglary, the “burglary found in building” provision’s development over time does not impact the first type of burglary. Additionally, if the legislature did not agree with the supreme court’s interpretation of the “without authority” language as to the first type of burglary and the Illinois courts’ application of that language to incidents where the person entered a business with the intent to commit a retail theft, it could have amended the burglary statute to eliminate that application.

It has not done so.

Illinois courts have applied Weaver’s interpretation of the first type of burglary repeatedly and consistently for 50 years, and thus the legislature has had ample time to contravene that interpretation. This consistent judicial interpretation of the “without authority” language in the first type of burglary is considered a part of the statute until the legislature amends it contrary to that interpretation. See People v. Woodard, 175 Ill. 2d 435, 444, 677 N.E.2d 935, 940 (1997).

Accordingly, we reject defendant’s argument and continue to follow Weaver’s holding that entry of a public building with the intent to commit theft constitutes an entry “without authority.”

We recognize our holding is inconsistent with the Third District’s holding in People v. Johnson, 2018 IL App (3d) 150352, ¶ 35, in which it concluded Bradford’s physical authority test applied to all retail theft cases, regardless of when the defendant formed the intent to shoplift.

Moreover, the Johnson decision appears to find the legislature’s enactment of the retail theft statute in 1975 implicitly removes retail theft from the “intent to commit therein a felony or theft” language of the burglary statute. See Johnson, 2018 IL App (3d) 150352, ¶ 33.

However, the burglary statute and the Weaver decision existed before the enactment of the retail theft statute, and the legislature has yet to amend the burglary statute to state the exception found in Johnson. In construing a statute, courts cannot read words into the statute that are not there. People v. Sedlacek, 2013 IL App (5th) 120106, ¶ 28, 986 N.E.2d 1281.

Additionally, we disagree with Johnson’s focus on prosecutorial discretion.

“Generally, prosecutorial discretion is a valuable aspect of the criminal justice system.” People v. Christy, 139 Ill. 2d 172, 180, 564 N.E.2d 770, 774 (1990). The fact that more than one offense covers a defendant’s course of conduct has never been a valid reason for removing the discretion of the prosecutor to decide which offense, if any, to charge.

Thus, we disagree with Johnson’s statement “[c]ourts should not interpret criminal statutes to provide prosecutors unbridled discretion to arbitrarily charge some shoplifters with Class 2 felony burglary and others with Class A misdemeanor retail theft under similar circumstances.” Johnson, 2018 IL App (3d) 150352, ¶ 30.

Concerns over the exercise of prosecutorial discretion cannot alter the plain language of a statute.

Episode 456 - People v. Johnson - Retail Theft Statute Countermands This Class Of Burglaries

Episode 155 - People v. Bradford - Pimpy Burglary Is Now Off The Books 

People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01)

Defendant loses his SSS hearing because he didn't establish the Walgreen's parking lot was privately maintained.

Defendant lost his motion to rescind statutory summary suspension.

Defendant was asleep in the driver’s seat of his vehicle in the parking lot of a Walgreens drug store in Joliet, Will County, Illinois. Defendant was the only person in the vehicle at the time. The keys to the vehicle were in the ignition, and the engine was running.

Police officers approached the vehicle, woke defendant, and subsequently arrested defendant for DUI.

After defendant was arrested, he was taken to the police station, where he allegedly refused to submit to some form of chemical testing. Defendant’s driver’s license was later summarily suspended by the Secretary of State.

Defendant contends further that the State did not present any evidence in this case to show that defendant was observed driving on a public street or that the parking lot in question was publicly owned or was maintained by a government entity as was necessary to establish that the parking lot was a public highway.

Defendant contends that there is a long line of cases, which unequivocally held that the summary suspension statute (also known as the implied consent statute) cannot be applied to an individual who was driving or in actual physical control of a motor vehicle in a private parking lot, rather than on a public highway (referred to hereinafter as the private parking lot rule).

The State asserts that under the established law, a parking lot on privately owned property may constitute a public highway for purposes of the summary suspension statute and that it was defendant’s burden, therefore, to present evidence to establish that the parking lot in this case was not a public highway, which defendant failed to do.

Specifically, according to the State, defendant failed to present any evidence to show that the parking lot was privately owned and privately maintained, and the mere fact that the parking lot was a Walgreens parking lot, in and of itself, was insufficient to establish that the parking lot was not a public highway.

In addition, the State maintains, the fact that the vehicle was in the Walgreens parking lot and that defendant was the only person in the vehicle gave rise to an inference that defendant had driven the vehicle to that location on the public streets, as did defendant’s statement to the police that he had come back to Joliet in the vehicle from a restaurant in Chicago.

The defendant bears the burden of proof at the hearing to establish a prima facie case for rescission and must present some evidence on every necessary element of the ground asserted.

If the defendant does so, the burden shifts to the State to come forward with evidence to justify the summary suspension.

However, if the defendant fails to establish a prima facie case, a directed finding should be granted for the State on the petition to rescind.

Under the summary suspension statute (also known as the implied consent statute), any person who drives or is in actual physical control of a motor vehicle on a public highway is deemed to have given his or her consent to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, drugs, intoxicating compounds, or any combination thereof in the person’s blood if the person is arrested for any offense as defined in section 11-501 of the Illinois Vehicle Code (DUI), a similar provision of a local ordinance, or section 11-401 of the Vehicle Code (a motor vehicle accident involving death or personal injury). See 625 ILCS 5/11-401, 625 ILCS 5/11-501.1, People v. Culbertson, 258 Ill. App. 3d 294, 296 (1994).

As the language of the statute indicates and defendant asserts, the summary suspension statute only applies to individuals who were driving or in actual physical control of a motor vehicle on a public highway.

The summary suspension statute does not generally apply to a person who was driving or in actual physical of a motor vehicle on private property.

Pursuant to the established case law, however, a parking lot on privately owned property may constitute a public highway for the purposes of the summary suspension statute. Helt, 384 Ill. App. 3d at 288; Culbertson, 258 Ill. App. 3d at 296-97. If the parking lot is open to the public for use for vehicular travel and publicly maintained, it will constitute a public highway for summary suspension purposes, even if the parking lot is on privately owned property. See 625 ILCS 5/1-126 (defining the term, “[h]ighway,” as used in the Vehicle Code).

In the present case, defendant did not dispute that he was in actual physical control of the motor vehicle in the Walgreens parking lot and presented no evidence whatsoever to show that the parking lot was on privately owned property and that it was privately maintained.

The mere fact that the parking lot in this case was for a Walgreens drug store did not provide any further evidence as to who actually owned or maintained the parking lot.

Thus, the trial court’s ruling— that defendant had failed to establish a prima facie case for rescission based upon the private parking lot rule—was not against the manifest weight of the evidence. We need not determine, therefore, whether the facts of this case created an inference that defendant had driven on the public streets, as suggested by the State.

People v. Robledo, 2018 IL App (2d) 151142 (February). Episode 470 (Duration 7:10)

Defendant blew .082 she argued the margin of error of the machine means the state didn't prove she was .08.

Officer Michael Bond of the Mundelein Police Department observed defendant driving a car with only one headlight illuminated. He followed the car onto a residential street, where it pulled into a driveway.

She walked behind a house and came back out. At that moment, defendant reappeared and informed Bond that she pulled into the driveway because her license was suspended and she did not want to be arrested. 

Bond smelled a moderate odor of alcohol on defendant’s breath, and he noticed that her eyes were bloodshot and “droopy.” Defendant displayed no other signs of intoxication.

Defendant told Bond that she had drunk “a couple” of Mike’s Hard Lemonades and a “swig” of Corona.

Bond arrested defendant for driving with a suspended license, and she agreed to perform field sobriety tests at the police station. Following defendant’s performance of the field sobriety tests, Bond informed defendant that she was “borderline.”

Defendant agreed to take a breath test.

Bond observed defendant for 20 minutes, during which she did not put anything into her mouth. Defendant then blew into an Intox EC/IR-II machine, with a result of 0.082.

Bond explained that a dry gas container inside the machine is calibrated to give a result of 0.079.

According to Bond, the machine did internal checks and performed certification tests on September 2, 2014, and October 1, 2014, and both tests accurately measured the alcohol concentration in the dry gas container at 0.079.

Bond testified that the machine has a margin of error of plus or minus 0.005.

Defendant contends that she was not proved guilty beyond a reasonable doubt where her BAC could have been as low as 0.077, given the machine’s margin of error.

Section 11-501.2(a) of the Code provides in relevant part that evidence of the concentration of alcohol in a person’s breath is admissible in a criminal prosecution under section 11-501. 625 ILCS 5/11-501.2(a).

Section 11-501.2(a) further states that a chemical analysis of a person’s breath is considered valid if it was performed according to standards promulgated by the Department of State Police (Department). 625 ILCS 5/11-501.2(a). To lay a proper foundation for the admission of the result of a breath test, the prosecution must establish that the breath test was performed in accordance with those standards. People v. Olson, 2013 IL App (2d) 121308, ¶ 9.

We, therefore, look to the Department’s standards, as set forth in administrative regulations.

Administrative regulations have the force and effect of law. People v. Clairmont, 2011 IL App (2d) 100924, ¶ 17. Section 1286.200 of Title 20 of the Illinois Administrative Code provides that the following procedures establish the accuracy of breath-testing instruments:

(1) The instrument was approved at the time of the subject test,
(2) The performance of the instrument was within the accuracy tolerance according to the last accuracy check prior to the subject test,
(3) No accuracy check has been performed since the subject test, or the next accuracy check after the subject test was within the accuracy tolerance, and
(4) Accuracy checks have been done in a timely manner, meaning not more than 62 days passed between the last accuracy check and the subject test.

20 Ill. Adm. Code 1286.200 (2009).

When these conditions are met, a rebuttable presumption exists that the instrument was accurate at the time of the subject test. 20 Ill. Adm. Code 1286.200 (2009). “The obvious legislative intent in enacting section 11-501(a)(1) was to impose a strict liability on drivers found to be impaired by an alcohol concentration of [0.08] or above.” People v. Ziltz, 98 Ill. 2d 38, 42 (1983).

Essentially, defendant argues that we must, in all cases, require the prosecution to prove that a test result exceeds 0.08 by the margin of error recognized in the testing process.

Defendant arrives at this conclusion because, according to defendant, section 11-501(a)(1) requires the prosecution to prove a defendant’s actual BAC, as opposed to merely a breath-test result. By focusing solely on the language in section 11-501(a)(1), however, defendant ignores the other pertinent provisions of the Code.

A statute must be read as a whole, and all relevant parts should be considered. Section 11-501.2(a) provides that a chemical analysis is considered valid when it is performed according to the standards promulgated by the Department.

Defendant’s interpretation would eliminate that provision. Under defendant’s interpretation, her breath-test result of 0.082 would have to be presumed invalid, the opposite of what the legislature intended. We cannot rewrite a statute.

We reiterate that defendant did not object to the breath-test result’s admission into evidence.

If the evidence shows that the scientific procedures used gave an unreliable result, the court can exclude the evidence. Here, the jury heard that the breath-test machine was subject to a 0.005 margin of error, and the jury also heard Bond’s testimony and received the printouts of the readings showing the results of the accuracy tests and defendant’s result.

The jury was properly instructed.

Consequently, the weight to be given the prosecution’s evidence was for the jury to decide. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that defendant was guilty of driving with a BAC of 0.08 or more, based upon the reading taken from the breath-test machine.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Episode 469 (Duration 26:45) Here's a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws.

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We discuss the following cases:

• Birchfield v. North Dakota, 136 S. Ct. 1260 (2016)
• Missouri v. McNeely v. 569 U.S. 141 (2013)
• People v. Rennie, 2014 IL App (3d) 130014 (May)
• People v. Brooks, 2017 IL 121413 (November)
• People v. Sykes, 2017 IL App (1st) 150023 (December)
• People v. Eubanks, 2017 IL App (1st) 142837 (December)
• People v. Turner, 2018 IL App (1st) 170204 (February)
• People v. Hayes, 2018 IL App (5th) 140223 (February)

May the State criminalize the failure to comply with implied consent laws? Birchfield v. North Dakota

There were actually 3 consolidated cases each of them turning on whether or not the state could criminalize the failure to comply with implied consent laws. Two defendants were threatened with prosecution for failure to give blood; one defendant was charged for not blowing.

Thus, success for all three petitioners depended on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate.

If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.

SCOTUS, then had to determine if the searches demanded in these cases were consistent with the Fourth Amendment. This is so because when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.

If such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding.

The court applied the search incident to arrest doctrine and noted it is a categorical rule.

Since breath tests do not “implicate significant privacy concerns”, (no more intrusion than blowing up a party balloon). Blood tests are a different matter. Yes,  Missouri v. McNeely distinguished between “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and relatively predictable manner."

But McNeely concerned only one exception to the usual warrant requirement, the exception for exigent circumstances, that exception has always been understood to involve an evaluation of the particular facts of each case.

Here, by contrast, the search-incident-to-arrest exception is at play. Having assessed the effect of BAC tests on privacy interests and the need for such tests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.

The impact of breath tests on privacy is slight, and the need for BAC testing is great.

Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Thus, the police generally will need a warrant to get blood from a driver.

The court said there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, the court said that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. People v. Brooks

Police arrive to the scene of motorcycle accident. Defendant’s leg was broken because his foot was “almost upside down.” He wiped out on his motorbike. Defendant’s speech was slurred, his eyes were red, and he had an odor of alcohol emitting from his mouth when he spoke or yelled at the police. Defendant appeared agitated by the presence of law enforcement. When Webb asked defendant if he wanted to go to the hospital, defendant refused. Emergency medical services (EMS) personnel who were present at the scene told Webb defendant needed to go to the hospital and requested Webb’s assistance. Although defendant continued to decline medical services, Webb ordered defendant out of the Jeep. Defendant refused. Thereafter, Webb and another officer physically removed defendant from the Jeep, placed him on a gurney, and assisted EMS personnel in putting the gurney into the ambulance. Webb reiterated that it was EMS personnel who wanted defendant to get medical treatment and that he did not direct anyone to treat defendant. When asked. Webb testified that the ambulance stopped after traveling one or two blocks because defendant was trying to get out. EMS personnel again asked the police to help in transporting defendant. Webb stated that he was concerned at this time for the safety of EMS personnel, defendant, and himself. Webb placed defendant on the gurney, handcuffed him, and rode in the ambulance the rest of the way to the hospital. Webb then assisted EMS personnel in taking defendant into the emergency room. At the hospital, Webb read the statutory “Warning to Motorists” to defendant and asked him to consent to blood or breath testing. Defendant refused. At that point, Webb issued defendant a citation for DUI. Webb stated he did not take a sample of defendant’s blood nor did he direct anyone at the hospital to do so. Defendant briefly stated that, at the hospital, he never consented to have his blood drawn. Every time he was asked to have his blood drawn, he refused. Medical staff set his leg, which was broken. There is no dispute that a blood draw is a search within the meaning of the fourth amendment. However, the constitutional prohibition “against unreasonable searches and seizures does not apply to searches or seizures conducted by private individuals.” Where a person performs a search independently of the police, the search is considered a private one and, because state action is not present, the fourth amendment is not implicated. Where a search is conducted by a private individual, the search will be subject to constitutional guarantees when the individual conducting the search can be regarded as acting as an agent or instrument of the State. Participation by the police in and of itself, then, does not automatically invoke the application of the guarantees against unreasonable government intrusions safeguarded by the fourth and fourteenth amendments. There was no evidence that any police officer, sought or encouraged a blood draw or was even aware that one had been done. There is no question police forcibly seized defendant and helped transport him to the hospital. But defendant has never challenged the legality of the seizure. His challenge is only to the legality of a search, i.e., the blood draw that allegedly took place at St. Anthony’s. On this record, there is no evidence that a blood draw even took place, let alone that a hospital employee was acting as an instrumentality or agent of police when it was performed. This blood draw was a private search that did not implicate the fourth amendment.

No state action, cops help hold her down while they force catheterize her. People v. Sykes

Ladina Sykes and her two children were leaving a beach in Evanston when the car struck a wall in the parking lot. Sykes contends her conviction should be vacated because the police violated her fourth amendment rights by holding her down while a nurse forcibly catheterized her without a warrant. The paramedics took Sykes to Evanston Hospital, where a triage nurse assessed her condition. She was stable and had no complaints but didn’t know the date or time so was deemed to have an altered mental state. Dr. Patel examined Sykes and ordered a CT scan and blood and urine tests to determine why Sykes was in an altered mental state and to decide on a proper course of treatment.  Officer Pratt was standing outside Sykes’s room when he heard her tell the nurse she had one alcoholic drink that evening. He went in her room and asked her if she had been drinking. She told Pratt she had not been drinking or taking any drugs. Pratt arrested her for driving under the influence, based on the odor of alcohol, slurred speech, bloodshot eyes, and overall demeanor. He did not ask hospital staff to obtain samples for him. Colleen Costello, the supervising nurse, asked Sykes for a urine sample. Sykes refused. Costello then decided to catheterize her. Costello said patients can refuse treatment unless, like Sykes, they have an altered mental state. When Costello began the catheter procedure, Sykes was combative, swinging her arms, kicking her legs, and moving her hips to resist catheterization. She also tried to get out of the bed. Costello called for assistance, and about nine people responded, including Evanston police officers Pratt and Magnas, who had been standing outside the room. Pratt and Magnas stood at the head of the bed and held Sykes down by her shoulders. Once Sykes was restrained, Costello extracted the urine with a catheter. The blood and urine tests were sent to the hospital lab. Sykes’s blood test showed she was well within the legal limit for alcohol, and her urine test was presumptively positive for cannabis and PCP. The fourth amendment applies only to government action. People v. Phillips, 215 Ill. 2d 554, 566 (2005). A search performed by a private person does not violate the fourth amendment. Additionally, the fourth amendment does not prohibit the government from using information discovered by a private search. Evanston Hospital staff did not perform the catheterization as the agents of the police. The test was ordered for medical purposes unrelated to any possible charges filed by the police. The fact that the officers were present, had placed Sykes under arrest, and were called on to assist did not turn the medical procedure into state action. They were in the room only because nurse Costello asked for their assistance restraining her so that she not injure herself or others. It was not unreasonable for the officers to come to the aid of a nurse seeking help with a patient who might harm herself and others. Moreover, the catheterization was not dependent on the officers’ participation. Thus, the trial court did not err in denying her motion to suppress the results of her urine test.

Defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done to draw it. People v. Eubanks

625 ILCS 5/11-501.2(c)(2) says in cases of death or personal injury a person shall submit to chemical testing. Birchfield v. North Dakota,136 S. Ct. 2160, 2174 (2016) has thrown the constitutionality of this section into question. In this case, Eubanks was arrested in connection with a hit-and-run accident that killed Maria and injured Jeremiah. The police had probable cause to arrest Eubanks for driving under the influence. At the police station, Eubanks refused to take a breathalyzer test or to submit to blood and urine tests. At 2:53 a.m., an officer took Eubanks to the hospital, telling him that he was required by law to submit to blood and urine tests. Eubanks was physically restrained by hospital security and a blood sample was taken at 4 a.m. The nurse then asked for urine, but Eubanks refused to urinate. The nurse threatened to catheterize him. As she approached him with a catheter, he urinated, and a sample was collected at 5:20 a.m. The samples were sent to the crime lab for analysis. Eubanks blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite. A warrantless search is per se unreasonable unless it is a search conducted pursuant to consent, a search incident to arrest, or a search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant. The State bears the burden of showing the existence of exigent circumstances. Eubanks does not dispute that the police had probable cause to believe that he was driving under the influence. Rather, he argues that there were no exigent circumstances that made it impractical to obtain a warrant. More specifically, he argues that (i) causing death or personal injury to another individual does not constitute a per se exigency and (ii) the State did not sustain its burden of showing exigent circumstances in his particular case. See Missouri v. McNeely, 569 U.S. 141 (2013) (natural dissipation of chemicals in the blood is not an exigent circumstance). Under McNeely, section 11-501.2(c)(2) is unconstitutional on its face, insofar as it permits compelled chemical testing without a warrant in all cases where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another. The facts of this case are illustrative since they do not reflect any exigency that would have prevented officers from obtaining a warrant. Nearly three hours passed before he was brought to the hospital. They could have used that time to get a warrant.

Good faith exception saves this warrantless blood draw. People v. Turner

Defendant’s pickup truck collided with a motorcycle carrying two persons. The trck and motorcycle met at an intersection. The driver of the motorcycle, James McFall, was killed; his wife, Kasey McFall, sustained serious injuries. The defendant was taken to the emergency room at St. James Hospital, where two blood samples were drawn from him. The first blood draw was taken pursuant to a physician’s order as a part of his emergency room treatment, at approximately 10:46 p.m. At the request of police, nurses performed a second blood draw for inclusion in a “DUI kit” shortly after midnight on July 3, 2011. Both tests indicated that the defendant’s blood alcohol content was above the legal limit. The defendant was charged with 10 counts of aggravated driving under the influence of alcohol and reckless homicide. Before trial, the defendant moved to suppress the results of the second blood test used in the DUI kit. At a hearing on the motion, the defendant testified that at the hospital, he was asked for a blood sample “around three to four times” by nurses, in the presence of police. He stated that he “continually asked the reason why they wanted to draw blood” but was given no reason. He claimed that he never consented to the DUI kit blood draw. The trial court proceeded to find that the second blood draw was admissible under section 11-501.2(c)(2) of the Code. Officer Murphy recalled that the defendant’s “speech was slurred and mumbled” when he spoke to hospital staff and that his eyes were “glassy and bloodshot.” Officer Murphy stated that he gave a nurse a DUI test kit containing vials for blood and urine samples. He observed a nurse perform a blood draw for the DUI kit, which he placed into the evidence locker at the police station. Defendant’s various blood tests came back as .142 and .0118. The expert calculated that the motorcycle’s speed at impact was approximately 25 miles per hour. The pickup truck’s speed was between 13 and 15 miles per hour at the time of the collision. “Black box” data recorder reflected that five seconds prior to the crash, the truck’s speed was approximately 10 miles per hour. The recorder indicated that the truck’s brakes were applied five seconds before the impact. The trial court sentenced the defendant to two concurrent eight-year sentences on counts I and V. We first address the argument that the trial court erred in denying the defendant’s motion to suppress the DUI kit blood draw. The defendant argues that, because he did not consent and Officer Murphy did not attempt to obtain a warrant, the DUI kit blood draw violated his rights under the fourth amendment of the United States Constitution. The defendant argues that section 11-501.2(c) is unconstitutional in light of the United States Supreme Court decision of Missouri v. McNeely, 569 U.S. 141 (2013). The finding that this section 11-501.2(c)(2) is unconstitutional does not end the analysis. If the good-faith exception applies, it will support admission of the DUI kit blood draw, notwithstanding section 11-501.2(c)(2)’s unconstitutionality. Evidence will not be excluded where police acted with an “objectively reasonable good-faith belief that their conduct was lawful” as in such cases “there is no illicit conduct to deter.” Accordingly, under the good-faith exception, “searches conducted by police in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” In determining whether the exception applies, a court asks “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” See People v. Harrison, 2016 IL App (5th) 150048 (February 2016) (good faith exception applies to forced blood draws before McNeely). Harrison supports application of the good-faith exception under the facts of this case. As in Harrison, the defendant’s arrest in this case occurred after our supreme court’s decision in People v. Jones, 214 Ill. 2d 187 (2005) but before the 2013 decision in McNeely. We recognize that our recent opinion in Eubanks rejected the State’s reliance on Jones to invoke the good-faith exception. Eubanks is clearly distinguishable. The defendant in Eubanks did not merely decline to consent to the tests; rather, our court emphasized that “physical force was used to obtain Eubanks blood and urine samples,” including that he was “handcuffed to the hospital bed while blood was forcibly drawn from him.” Our supreme court in Jones expressly cautioned that it did not “permit law enforcement officers to use physical force in obtaining blood, urine, and breath samples,” we concluded that the officers in Eubanks “could not have reasonably relied on Jones to authorize such conduct.” We emphasized our supreme court’s statement in Jones that “we do not suggest that a DUI arrestee’s lack of a right to refuse chemical testing permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples.” Although the defendant in this case testified that he initially refused requests for a blood draw, he did not claim (and there is nothing in the record to suggest) that he was physically threatened or restrained in order to obtain the sample. The trial court specifically found that he was not coerced, and that finding is not against the manifest weight of the evidence. As the good-faith exception applies in this case, we affirm the denial of the motion to suppress the DUI kit blood draw. Conviction and sentence affirmed.

Defendant runs over and kills a 7 year old boy, however, the resulting blood draw is out because defendant was never under arrest. People v. Hayes

The defendant, Chad B. Hayes, struck the boy with his vehicle when the boy rode his bicycle in front of the defendant’s vehicle. The accident took place near city hall in Sumner, Illinois. According to the defendant’s statement to police, one of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby. Apparently, the kid rode his bicycle between two parked cars onto the roadway. Clem did not believe that the defendant could have done anything to avoid the accident. The defendant ran into city hall asking for help. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray. The 7 year old victim died. Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening. No one noticed anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated. Chief Murray testified that Deputy Ash asked him to transport the defendant to Lawrence County Memorial Hospital for drug testing. Chief Murray did so. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn. Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. The test indicated the presence of methamphetamine, amphetamine, THC, and naproxen, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)). Chief Murray acknowledged that he did not give the defendant the warning to motorists. The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash asked the defendant to submit to a second drug test 2 days later. This blood tested negative for the presence of any drugs. Deputy Ash also issued two traffic citations to the defendant for failing to exercise due care (id. § 11-1003.1) and failing to reduce speed to avoid an accident (id. § 11-601(a)). Eventually, the defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)). The court sentenced the defendant to 54 months in prison. The question before us is whether the results of the drug tests should have been excluded because they were obtained in violation of the fourth amendment to the United States Constitution. A recognized exception to the warrant requirement is voluntary consent to a search. The validity of a warrantless search based on consent thus depends on the voluntariness of the consent. Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. Acquiescence to apparent authority is not the same thing as consent. Consent to a search “must be received, not extracted.” Consent to a search is the waiver of a constitutional right. As such, a “defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” Consent is voluntary when it is “given freely without duress or coercion.” The State argues that the defendant unambiguously consented to the search through his conduct by getting into the vehicle. The State further argues that his consent was voluntary because there was no evidence that he objected to the request that he submit to the test. But here, the record contains no evidence at all concerning how the test was presented to the defendant or how the defendant responded. We do not know whether Deputy Ash asked the defendant to take the test or demanded that he do so. We do not know whether Deputy Ash told the defendant that he had no right to refuse the test. We do not know whether the defendant agreed to take the test, objected, or merely acquiesced. The State asks us to presume based on this record that the defendant deliberately got into Chief Murray’s vehicle because he willingly agreed to submit to a test he felt free to refuse. We cannot find the waiver of an important constitutional right based on these circumstances. Moreover, even assuming the defendant did anything to unambiguously convey consent, the surrounding circumstances indicate that any such consent was not voluntary. He was transported to the hospital for the test by a uniformed police officer. The officer remained with him at all times, even when he went to the restroom to provide a urine sample. Deputy Ash had the defendant’s vehicle towed from the scene of the accident to be stored until Deputy Ash completed his investigation. We do not believe that a reasonable person confronted with these circumstances would feel free to leave the hospital or refuse to take the test. Considering the totality of these circumstances, we find that the State failed to meet its burden of demonstrating that the defendant voluntarily consented to the tests. Finally, we consider the parties’ arguments concerning implied consent. Section 11- 501.6(a) of the Illinois Vehicle Code provides that any motorist “shall be deemed to have given consent” to drug testing if the motorist is “arrested as evidenced by the issuance of a Uniform Traffic Ticket for any violation of the Illinois Vehicle Code *** with the exception of equipment violations.” 625 ILCS 5/11-501.6(a) (West 2010). The statute, by its express terms, applies only if the defendant has been arrested for a violation of the Illinois Vehicle Code when asked to submit to testing. We agree with the defendant that this condition was not met in this case. There is no dispute in this case that Deputy Ash did not issue any traffic citations to the defendant until two days after he directed the defendant to submit to the test. The defendant was seized within the meaning of the fourth amendment when he submitted to the tests, but he was not under arrest for a violation of the Illinois Vehicle Code as required by the implied consent provision. We read this section as holding that if a test is otherwise proper under the fourth amendment, its results are admissible. We hold that before a motorist may be found to have impliedly consented to this intrusive search, thereby waiving an important constitutional right, he must be under arrest for a violation of the Illinois Vehicle Code. The results should have been excluded. Conviction reversed outright.

• Episode 462 - People v. Turner, 2018 IL App (1st) 170204 (February) (good faith exception applies and allows the admissibility of this warrantless blood draw)
• Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)
• Episode 461 – People v. Hayes, 2018 IL App (5th) 140223 (February) (defendant was not ticketed so so state could not establish consent to the blood draw)
• 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 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)
• Episode 258 - Jeffery Hall Interview - He Discusses The Krystin Rennie Case

People v. Meo, 2018 IL App (2d) 170135 (March). Episode 468 (Duration 14:08)

Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.

At about 8:30 p.m., Scott was dispatched to Casey’s General Store (Casey’s), located at the intersection of Plank Road and Main Street, to investigate a report of a possible drunk driver. It was snowing heavily at the time.

According to Scott, a clerk at Casey’s called dispatch to report a possible drunk driver in the building.

Based on the clerk’s report, dispatch then advised Scott that “the male driver was driving a white Scion. He had driven up to the front of the building, hitting the curb, going over the curb, and the store clerk described it as almost going into the building.”

After receiving the call from dispatch, Scott drove to Casey’s, and parked his squad car in a parking lot east of Casey’s so that he would have a better view of the vehicles parked in the Casey’s parking lot.

He saw a white Scion parked in the Casey’s parking lot, and “fairly soon” thereafter he saw a white male, later identified as defendant, enter the vehicle. After following defendant for about 30 seconds and observing defendant commit no traffic violations, Scott activated the lights on his squad car, and defendant stopped his vehicle.

Scott stopped defendant’s vehicle based on the blinking headlights and the original call.

A video recording was made from Scott’s squad car camera from just before the time that defendant’s vehicle passed in front of Scott at Casey’s until the time that Scott arrested defendant for DUI. The video was played for the court and entered into evidence.

Scott testified that, after pulling over defendant’s vehicle, he approached the vehicle and spoke with defendant through the open driver’s-side window. While speaking to defendant, Scott smelled alcohol on defendant’s breath and noted that defendant’s “eyes were glassy and bloodshot, his speech was thick-tongued and slurred.”

Defendant told Scott that he drank three beers about six or seven hours earlier.

Scott asked defendant for his driver’s license and proof of insurance. According to Scott, defendant had a hard time getting his driver’s license out of his wallet and “fumbled his wallet a few times.” Scott testified: “He literally had it in his hands and he dropped it out onto his lap and picked it back up and was kind of using multiple fingers to kind of manipulate the wallet in order to open it correctly.”

Scott testified that the driver’s license was located behind a plastic flap and that it took defendant a few tries to pull the licenseout of the wallet. Scott stated that defendant also pulled a credit card out of the wallet and handed him the credit card instead of his insurance card.

Scott testified that he decided to perform field sobriety tests on defendant and asked him to step out of his vehicle. Because of the heavy snowfall and wind, Scott asked defendant to accompany him to a nearby Jewel pharmacy drive-through pickup area, with an overhang, so that they could be protected from the snow.

Scott testified that, when he asked defendant to exit and lock his vehicle, defendant did so. Scott agreed that he wrote in his police report that defendant swayed and seemed unbalanced as he walked. Scott also agreed, however, that the video showed that defendant had no difficulty walking toward the police car in the deep snow.

The video also showed that defendant, while walking toward the police vehicle, dropped his keys and was able to pick them up without difficulty. Scott transported defendant to Jewel to perform the field sobriety tests. The area under the overhang was mostly dry with just some blowing snow on the pavement. Scott testified that he asked defendant for consent to perform the tests and that defendant agreed to participate.

Ultimately, defendant did not perform the tests.

Scott testified that he had instructed defendant four times on how to perform the horizontal gaze nystagmus (HGN) test.

Defendant told Scott several times that he had some physical limitations due to a stroke. The video shows defendant telling Scott that he suffered a stroke a few months ago. As Scott was instructing defendant on how to perform the HGN test, defendant told Scott that he needed to have things repeated and asked Scott to speak slower. Defendant told him that he did not understand.

During the test, defendant again told Scott that he had had a stroke and that he could not do a lot of things. Scott testified that defendant seemed very confused. Scott agreed that defendant did not have any trouble removing his glasses for the test and that defendant did not sway or stumble as he stood before him during the test.

Scott repeatedly attempted to have defendant follow the top of his finger using only his eyes.

Defendant told Scott that he could be having a stroke. When Scott asked defendant if he needed an ambulance, defendant responded, “I don’t know.”

Scott testified that he had offered nonstandardized field sobriety tests to defendant because defendant was unable to complete the HGN test. The video shows Scott asking defendant whether he had any physical limitations that would prevent him from performing the one-leg-stand test or the walk-and-turn test.

Defendant said yes, because his legs had given out during his stroke. Scott asked defendant if he wanted to attempt the tests, and when defendant did not give a responsive answer, Scott told defendant that he assumed that the answer was no. Scott then offered to have defendant perform the alphabet test and asked defendant if he knew his A-B-Cs. Defendant responded that he “lost all that over the years,” but then quickly asked, “A-B-C-D-E-F-G-H?”

Scott asked defendant to recite the alphabet, starting at B and ending with O. Defendant said that he did not want to try it. When Scott asked defendant to count, defendant stated that he could not count anymore. Defendant stated that he had had a stroke and that his wife had left him.

The video further shows that, when Scott expressed to defendant that he felt that defendant was impaired by alcohol and unfit to drive, defendant asked to walk home.

Scott then asked defendant to take a breath test. Defendant replied that he would rather just walk home. Scott again asked defendant to take a breath test.

Defendant stated that he was “in stroke mode.”

When Scott again asked if defendant needed to go to the hospital, defendant said no.

Scott thereafter arrested defendant for DUI. The trial court granted defendant’s motion to quash his arrest and suppress evidence, finding that Scott did not have reasonable suspicion to make an investigatory stop of defendant and that Scott lacked probable cause to arrest defendant for DUI.

The trial court’s primary basis for granting the motion was the lack of reasonable suspicion to justify the stop. With respect to the tip, the trial court stated that it did not know who the tipster was or his or her basis of knowledge, referring to the tipster as “anonymous.” The court also noted that the tipster did not provide a sufficient description of the driver of the vehicle, stating:

“They don’t give a description of the person who drove the car, male, female, white, black, or anything like that, so for all we know, we don’t know if it was the defendant who potentially almost drove in the Casey’s store.”

With regard to the headlight issue, the court found that the video did not corroborate Scott’s testimony that the headlights were off for up to four seconds, noting that, “[a]t best,” the lights were off for only two seconds.

Moreover, the court found that the headlights being turned off for two seconds was not a violation of the traffic code, as it did not occur on a public highway. As an alternative basis for granting the motion, the trial court found that the DUI arrest was not supported by probable cause.

The court noted that the video showed that defendant was able to properly turn from private property onto Plank Road and drive down Plank Road to Main Street, where defendant again made a proper turn. The court acknowledged defendant’s admission to drinking three beers a number of hours before and Scott’s testimony that defendant’s eyes were bloodshot. The court disagreed with Scott’s characterization of defendant’s speech as slurred, finding Scott’s testimony on the issue not credible.

The court noted that, although the video was difficult to hear at points, the court had no difficulty understanding what defendant was saying.

The court also observed that the video showed that defendant was able to lock his car, walk to the squad car, remove his glasses, and put his glasses back on without difficulty. The court also found that, although defendant dropped his keys, he was able to pick up the keys with no problems, did not sway during the HGN test, and performed the alphabet test without difficulty.

We first consider whether the trial court erred in finding that Scott did not have a reasonable suspicion to stop defendant’s car.

In evaluating whether a reasonable suspicion existed, a reviewing court should objectively consider whether information known to the officer at the time of the stop would warrant a person of reasonable caution to believe that a stop was necessary to investigate the possibility of criminal activity.

We note that reasonable suspicion justifying a Terry stop is a less exacting standard than probable cause to make an arrest. A Terry stop can be based on information received from an informant, under certain circumstances: “[T]he informant’s tip must bear some indicia of reliability in order to justify the stop. A reviewing court should consider the informant’s veracity, reliability, and basis of knowledge.

Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances. One factor that affects the reliability of a tip is whether the tip is from an anonymous or identified party. When determining the reliability of an anonymous tip, courts have considered the following factors:

(1) whether there was a sufficient quantity of information to allow the officer to be certain that the vehicle stopped was the one identified by the tipster;
(2) the time interval between when the police located the suspect vehicle and when the information was first relayed to the police;
(3) whether the tip was based upon contemporaneous eyewitness observations; and
(4) whether the tip was sufficiently detailed to permit the reasonable inference that the tipster has actually witnessed an ongoing motor vehicle offense.

A call to a police emergency line does not constitute an “anonymous’ tip” and should not be viewed with the skepticism applied to tips provided by confidential informants, because the caller places his or her anonymity at risk. Furthermore, when the tip concerns a possible drunk driver, less corroboration of the tip is required, because “an intoxicated person behind the wheel of a car presents an imminent danger to the public that is difficult to thwart by means other than a Terry stop.” People v. Shafer, 372 Ill. App. 3d 1044, 1052 (2007).

We first consider whether the tip from the clerk at Casey’s was sufficiently reliable to justify the stop of defendant’s vehicle.

We determine that it was. First, we note that the trial court’s findings that the tipster was “anonymous” and that the tip did not sufficiently identify defendant were against the manifest weight of the evidence. With regard to anonymity, the testimony clearly established that the clerk telephoned the police, identified the Casey’s at which he or she was employed, and later spoke directly with a police sergeant. As the clerk was readily identifiable, the tip was not anonymous. 

With regard to the content of the tip, Scott’s testimony established that the tipster specifically described the driver of the vehicle as a white male and, in addition, provided the make and color of the vehicle. Given the fact that the tip was not anonymous, it bears an initial degree of reliability.

The clerk specified that a white male, driving a white Scion, hit the curb at Casey’s and almost hit the building; that the driver was in the store; and that the driver was possibly drunk. Thus, it is clear that the tip was reliable in that it was based on contemporaneous events and provided enough information to allow Scott, who arrived within a short time of learning of the tip, to identify defendant as the person referred to by the tipster.

In addition, the tip was sufficiently detailed to permit a reasonable inference that defendant was committing DUI, given the clerk’s description of defendant’s driving as well as the clerk’s close proximity to defendant and ability to observe defendant in Casey’s. The close proximity during a hand-to-hand exchange between the tipster and the defendant supported reliability of the tipster’s assessment that the defendant was intoxicated.

In addition to the reliability of the tip, Scott observed defendant turn his headlights off and then back on again as defendant made his way from Casey’s to the public highway.

We disagree with the State that this factor, standing alone, was sufficient to support the investigatory stop, as defendant was not traveling on the public highway at the time and thus did not violate section 12-101(a) or 12-201(b) of the Illinois Vehicle Code (Code) (see 625 ILCS 5/12-101(a), 12-201(b) (West 2016)). However, it was certainly a factor for Scott to consider, along with the other information he had before him.

Here, at the time of the stop, Scott was acting on a reliable tip that defendant had driven over a curb and almost hit a building and was possibly drunk. After locating defendant, Scott observed him blinking his headlights for no apparent reason. Based on the totality of the circumstances, we find that the investigatory stop of defendant’s vehicle was supported by a reasonable suspicion that defendant was committing an offense, and thus the trial court erred in granting defendant’s motion to quash his arrest and suppress evidence on this basis.

We next consider whether the trial court erred in finding that Scott lacked probable cause to arrest defendant for DUI.

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. Probable cause concerns probabilities and not technicalities.

That is, probable cause is based on the factual and practical considerations of everyday life upon which reasonable, prudent people, not legal technicians, act. Probable cause is more than a mere suspicion but less than proof beyond a reasonable doubt.

There are several pieces of evidence indicating that defendant was under the influence of alcohol. When considered in their totality, they provided Scott with probable cause to arrest defendant for DUI.

Scott testified that, when he approached defendant’s vehicle, the window was down and he smelled the odor of alcohol on defendant’s breath. In addition, defendant admitting to drinking three beers about six or seven hours earlier. Any evidence of alcohol consumption is relevant to the question of impairment.

Scott observed that 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. See also People v. Day, 2016 IL App (3d) 150852, ¶ 38 where court found that the defendant’s consumption of alcohol and glassy and bloodshot eyes were insufficient, without more, to give rise to probable cause to arrest for DUI.

Although the trial court found that defendant was “understandable,” the video supports Scott’s testimony concerning defendant’s speech.

Scott also testified that defendant had a hard time getting his driver’s license out of his wallet and “fumbled his wallet a few times,” initially giving Scott a credit card rather than his insurance card. When Scott asked defendant to take a breath test, defendant responded that he was “in stroke mode,” yet refused Scott’s offer to call an ambulance. Moreover, when Scott expressed that he felt that defendant was impaired by alcohol and unfit to drive, defendant asked to walk home. And when Scott again asked defendant to take the breath test, defendant refused. Defendant’s refusal to take the breath test and his request to walk home were circumstantial evidence of his consciousness of guilt and further supported probable cause to arrest.

First, the court questioned Scott’s credibility on the issue of how long defendant’s headlights were off. Scott estimated that the headlights were off for one to four seconds. The trial court found that the lights were off for “[a]t best” two seconds. Our view of the video confirms the trial court’s finding that the lights were off for about two seconds. But we fail to see how this renders Scott’s testimony of one to four seconds incredible.

Second, the trial court found Scott’s testimony regarding defendant’s speech incredible as well. Scott described defendant’s speech as “thick-tongued and slurred.” Having viewed the video, we cannot say that Scott’s description of defendant’s speech was inaccurate.

Thus, we find that the trial court’s credibility concerns do not support affirmance of the court’s ruling.

Accordingly, we hold that Scott had probable cause to arrest defendant for DUI. Based on the foregoing, we reverse the judgment of the circuit court of De Kalb County.

Episode 101 - Navarette v. California (citizen complaint calls in drunk driver justifying the stop).

Episode 347 - People v. Motzko, 2017 IL App (3d) 160154 (April) (DUI based on the odor of an alcoholic beverage , defendant’s glassy, bloodshot eyes, and his admission to drinking not enough to justify the arrest.)

Episode 294 - People v. Day, 2016 IL App (3d) 150852 (January) (driver Aces the SFTS that were administered wrong plus office had credibility issues)

People v. Curry, 2018 IL App (1st) 152616 (February). Episode 467 (Duration 8:24)

The possession with intent to deliver should have been vacated when he was convicted of armed violence (lesser included offense counts as same act).

Following a bench trial, the defendant-appellant, Jarrod Curry, was convicted of armed violence (count I), possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin (count II), and possession of a controlled substance with intent to deliver less than 1 gram of cocaine within 100 feet of a park (count III).

It was a search warrant and defendant fled when the cops broke in. Police saw him throw away a gun and some drugs as he ran away.

The defendant argues that this court must vacate his conviction and sentence for possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin.

He claims that this conviction arose out of the same physical act as his conviction for armed violence, which violates the one-act, one crime rule.

Under the one-act, one-crime rule, “a defendant may not be convicted of multiple offenses that are based upon precisely the same single physical act.”

First, the reviewing court determines whether the defendant’s conduct consisted of a single physical act or separate acts. If one physical act was undertaken, then multiple convictions are improper.

Second, if the defendant committed multiple acts, the court determines whether any of the convictions are for lesser-included offenses. Multiple convictions for lesser-included offenses are also impermissible.

In other words...

A defendant can be convicted of two offenses where a common act is part of both crimes. But, where two offenses share a common act, there must be another separate act to sustain the two convictions. As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions.

Our supreme court has long held that the predicate offense for another crime is a lesser-included offense of the other crime.

Here, the defendant’s armed violence conviction is predicated upon his intent to deliver drugs while armed with a dangerous weapon. This was based on evidence that the defendant possessed a gun while also possessing drugs. He could not have violated the armed violence statute without committing the underlying felony of possessing drugs with the intent to deliver.

Thus, the two convictions clearly arise out of the same physical act.

The State responds that in 2009, the legislature changed the sentencing statute (730 ILCS 5/5-8-4(d) (West 2012)), creating clear legislative intent to provide for separate convictions for armed violence and possession of a controlled substance with intent to deliver, and so there is no violation of the one-act, one-crime rule.

“From [reading the armed violence statute,] it cannot be said that the legislature clearly intended to provide for the imposition of multiple convictions and sentences based on a single act. It is reasonable to say that the legislature intended only to increase or enhance the minimum penalty upon conviction of a felony when the violator was in possession of a dangerous weapon while committing the felony. *** If it were its intention the legislature could have expressly provided for separate convictions and sentences on charges of armed violence and its predicate or underlying felony.”

 The statute is expressly directed to sentencing. It contains nothing to suggest intent to permit multiple convictions. The plain reading of the sentencing statute states that when there is an armed violence conviction predicated upon certain enumerated felonies, it triggers mandatory consecutive sentencing, such that any other convictions for which a defendant was sentenced must be served consecutively to the armed violence conviction. This in inapplicable to the defendant’s convictions.

We find that there was an error here because it was improper for the trial court to convict the defendant for possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin, as it was the lesser-included offense of his armed violence conviction.

 Affirmed in part, vacated in part, and mittimus corrected.

Episode 466 - People v. Coats, 2018 IL 121926 (January) (armed violence does not merge with being an armed habitual criminal because possession of drugs and guns are different acts)

Episode 451 - People v. Smith, 2017 IL App (1st) 151312 (October) (a single punch to the gut constituted one act)

People v. Coats, 2018 IL 121926 (January). Episode 466 (Duration 7:24)

One Act - One Crime principles needed a little cleaning up.

The trial court found defendant guilty of being an armed habitual criminal, armed violence, and two counts of possession of a controlled substance (heroin) with intent to deliver.

The possession counts merged into the armed violence count.

Defendant was sentenced to 7 years in prison on the armed habitual criminal count to run consecutively to a term of 15 years in prison on the armed violence count.

Chicago police officer Edwin Utreras was part of a team executing a search warrant at a two-flat basement apartment in Chicago.

After forcing entry into the apartment and detaining four individuals, Utreras and his team approached a locked, rear room. They knocked on the door and heard people shuffling around inside the room, but nobody answered the door.

Utreras’s partner then forced entry into the room, where Utreras saw defendant holding a handgun in his left hand and two plastic bags in his right hand, which he was placing on a window ledge. Utreras recovered a .45-caliber handgun loaded with nine live rounds of ammunition, as well as both bags.

Inside one bag was a clear bag containing 53 smaller bags of suspected crack cocaine and one “knotted bag” containing suspected crack cocaine. Inside the other bag was a clear plastic bag containing 92 bags of suspected heroin. Drugs were also recovered in other areas of the room, including suspected heroin recovered from the refrigerator. The police also recovered cash currency, ammunition, and narcotics packaging materials.

The parties stipulated that a chemist verified the contents of the plastic bags defendant was holding, which contained over 15 grams of heroin.

The parties also stipulated to defendant’s prior convictions for robbery and aggravated robbery.

There is a conflict between the Second District decision in People v. Williams, 302 Ill. App. 3d 975 (1999), and the Fourth District’s decision in People v. White, 311 Ill. App. 3d 374 (2000). 2016 IL App (1st) 142028-U, ¶¶ 25-27 on whether the armed violence should have merged with the armed habitual criminal offense.

We first consider whether a one-act, one-crime error occurred. In People v. King, 66 Ill. 2d 551, 566 (1977), this court held that a criminal defendant may not be convicted of multiple offenses when those offenses are all based on precisely the same physical act.

Although this rule is not derived from the constitutional prohibition against double jeopardy, we have continued to reaffirm and adhere to it over the last four decades based on the prejudice that results when there are multiple convictions for precisely the same criminal conduct.

In making that determination, this court has long followed a two-step analysis. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996).

First, the court ascertains whether the defendant’s conduct consisted of a single physical act or separate acts.

Second, if it is determined that the defendant committed multiple acts, the court then moves to the second step and determines whether any of the offenses are lesser-included offenses. If none of the offenses are lesser-included offenses, then multiple convictions are proper.

We must first determine whether defendant’s conduct consisted of separate physical acts or a single physical act.

Defendant maintains that his armed violence conviction was carved from precisely the same physical act as his armed habitual criminal conviction because they both arose from his act of possessing the handgun.

We disagree.

In clarifying the one-act, one-crime rule from King, the supreme court explained that a court must first determine whether Smith’s conduct consisted of a single physical act or separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996).

A defendant can be convicted of two offenses where a common act is part of both crimes. But, where two offenses share a common act, there must be another separate act to sustain the two convictions. As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions.

The facts of this case reveal that defendant’s conduct consisted of two physical acts: possession of the handgun and possession of the drugs.

Although the two offenses shared the common act of possession of the handgun, which served as a basis for both convictions, defendant’s armed violence conviction involved a separate act, possessing the drugs. That act was applicable only to the armed violence offense.

Since the possession of the handgun was only part of the conduct which formed the basis for the separate armed violence conviction, the two offenses were not carved from precisely the same physical act.

Consequently, based on this court’s precedent, Williams misapplied the one-act, one-crime rule. We therefore expressly overrule it.

In sum, under the first step in the one-act, one-crime analysis, defendant’s conduct consisted of multiple acts. We next consider the second step. Being an armed habitual criminal is not a lesser included offense of armed violence, therefore, we conclude that defendant’s convictions were proper under the one-act, one-crime rule.

Accordingly, because we find no error, there is no plain error. We affirm the judgment of the appellate court, which affirmed the judgment of the circuit court.

Episode 451 - People v. Smith, 2017 IL App (1st) 151312 (October) (a single punch to the gut constituted one act)

In re B.C., 2018 IL App (3d) 170025 (February). Episode 465 (Duration 13:21)

The law does allow a petitioner to establish that it is “more probable than not” that he poses no risk to the community not withstanding an evaluation that says he poses a "low risk to the community."

The minor was 14 years old when he put his penis in the mouth and anus of two 8 year old boys. He was charged in juvenile court under aggravated criminal sexual abuse and was adjudicated.

He had a 10 year registration requirement and it later turned into a 20 year period.

Dr. Antoinette Kavanaugh evaluated B.C. In her report, Kavanaugh said B.C. appeared to be making positive strides in therapy, and he had improved his social skills. Kavanaugh noted that assessing B.C.’s risk of reoffense was “not an easy task” because recidivism rates for adolescent sex offenders were low compared to adult sex offenders and a 100% accurate empirical risk assessment did not exist.

Nevertheless, Kavanaugh cited the following factors that may reduce B.C.’s likelihood of reoffense:

(1) B.C. had no history of juvenile delinquency before the adjudicated offense
(2) since B.C.’s adjudication, he has not had any new involvement with the justice system
(3) B.C. consistently engaged in and demonstrated progress in treatment
(4) B.C. admitted that he committed the offenses
(5) B.C.’s level of denial had decreased
(6) B.C.’s exposure to sexually explicit material had decreased
(7) B.C. did not have a history of being victimized
(8) B.C. did not have a deviant sexual arousal pattern
(9) B.C.’s family was willing to engage in treatment
(10) B.C. was involved in a functional family system
(11) B.C. did not have a history of academic or behavioral problems
(12) B.C. had increased his involvement with peers his age and decreased his involvement with younger peers
(13) B.C. had increased parental and adult supervision
(14) B.C.’s empathy for the victims had increased but was still incomplete
(15) B.C. did not have a history of drug or alcohol use
(16) B.C.’s social skills were increasing and
(17) B.C. was not suffering from a significant emotional or psychological problem.

Kavanaugh also cited four factors that may increase B.C.’s likelihood of reoffense:

(1) B.C. and his parents continued to display cognitive distortions related to the offense
(2) B.C. and his family did not have sufficient knowledge of the environmental, interpersonal, and family factors that may have contributed to the abuse
(3) B.C. and his family have yet to develop an appropriate level of victim empathy and
(4) B.C. and his family failed to completely understand the exploitative nature of the offenses.

Five years he was discharged from probation.

11 years after that he petitioned for termination of his sex offender registration requirement. 730 ILCS 150/3-5(c).

The petition alleged that

(1) B.C. became statutorily eligible to petition for termination on September 1, 2005
(2) B.C. had successfully completed a sex offender treatment program, and
(3) according to licensed professional evaluator Pamela Munson, B.C. was a “low risk to re-offend,” had a plan for accountability, and was aware of his triggers.

At the hearing on the petition, B.C. testified that he committed the charged offenses when he was 14 years old.

Since his convictions, B.C. had graduated from high school and attended 1½ years of community college. After high school, B.C. worked full time at several Taco Bell locations. B.C. had also worked as a manager at a Buffalo Wild Wings restaurant and was then the general manager of the Taco Bell in Crest Hill.

He had no new arrests, no violations of probation and had met all his registration requirements.

The State called Tammy M., the mother of J.M., to read a victim impact statement.

In her statement, Tammy detailed J.M.’s continuing anxiety and emotional distress caused by B.C.’s actions. Tammy acknowledged that people can change, but advocated that B.C. remain on the sex offender registry for as long as possible because of the harm B.C. had caused to J.M.

Further after his probation ended he sought additional counseling to get a handle on his issues and to ensure he didn’t re offend.

He successfully completed a sex offender treatment program after his probation had ended and had a low risk to reoffend. Munson explained that the sex offender treatment program consisted of three phases:

(1) offender check-ins and learning accountability for the deviant behavior
(2) accountability, understanding the cognitive errors that led to the offender’s poor choices, and developing empathy and understanding the impact of the offender’s actions on the victim and society; and
(3) managing and understanding the offender’s triggers and high risk areas.

These three phases included 18 assignments and took four years to complete.

At the end of the program, the evaluators determined whether the offender had changed his erroneous thinking or had merely moved through the steps. Munson prepared a risk assessment.

Munson explained the biggest factor in preparing the assessment was determining whether B.C. understood his actions were wrong and how to prevent the behavior in the future. Munson said the following factors reflected favorably on B.C.’s risk assessment:

(1) B.C. had voluntarily undertaken the sex offender treatment program
(2) B.C. had a history of continuous employment
(3) B.C. had a positive family support network and
(4) B.C.’s family understood the program was not about “curing” B.C., but educating and training B.C. to understand the thinking errors that led to the offenses.

Munson ultimately determined that B.C. had a “low risk to re-offend.”

Munson said that neither she nor any of the other evaluators at Dr. James Simone and Associates had ever issued a “no risk to offend” opinion. The only options were “low risk, medium risk, or high risk.”

On cross-examination, Munson explained that the sex offender treatment program teaches offenders “to accept that there is always a possibility of re-offense. That’s a part of why we build and instill in them an understanding of what their triggers are and ways of making sure that they don’t get themselves in situations. Many of our assignments are based on looking at their cycle of behavior and then planning for exits of how to get out of that cycle. So it’s a part of our successful treatment that they understand you cannot ever say, ‘I will never re-offend.’ You have to understand that the possibility is there, but the risk factor determines how probable that is.”

Munson was not saying that B.C. had “no risk” to reoffend because she did not “know how the standard can have it as zero risk since that goes against all of the sex-offender-based training that [she has] had; but [she thought] it was written by lawyers, not practitioners.”

On redirect examination, Munson said that, based on her experience, B.C. had the “lowest risk possible.” B.C. also had fully accepted responsibility for his offenses, understood his triggers, and did not have a strong attraction to children. Munson reiterated “[t]here is no cure. There is only education.”

The trial judge denied the motion saying:

“But that’s not what the statute says, and I cannot rewrite the statute. The statute says ‘no risk.’ I don’t get to make those judgment calls. That is not my place as a trial judge. My place is to follow the statute. The word is ‘no risk.’ And, therefore, the petition—despite all of the compelling evidence with regards to the minimal nature of the risk, the statute has to be followed. And, therefore, I have to deny the petition.”

B.C. argues the court improperly interpreted section 3-5 of the Sex Offender Registration Act (Act) (730 ILCS 150/3-5 (West 2016)) and ceded responsibility for making a judgment to persons other than the court.

Specifically, B.C. contends that the trial court effectively shifted the judicial decision-making authority to Munson, who found that B.C. posed a “low risk” instead of the statutorily required “no risk.” Additionally, B.C. submits that the court’s interpretation nullifies section 3-5 because, according to Munson, all assessments will result in, at best, a “low risk” determination. B.C.’s argument is derived from the trial court’s interpretation of subsection 3-5(d) of the Act.

This subsection provides that once a juvenile sex offender files a subsection 3-5(c) petition,

“[t]he court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e).”

730 ILCS 150/3-5(d).

The language of subsection 3-5(d), stating that the court must find the registrant poses “no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e),” is clear and unambiguous. T.J.D., 2017 IL App (5th) 170133, ¶ 23.

When deciding whether B.C. satisfied his burden of proof, the court was required to consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act;
(2) the sex offender history of the adjudicated juvenile delinquent;
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation;
(4) the age of the adjudicated juvenile delinquent at the time of the offense;
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history;
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.

730 ILCS 150/3-5(e) (West 2016). 

The legal “no risk” standard of subsection 3-5(d) is necessarily high because this onerous burden strikes a balance between the intent of the Act to protect the public (see People v. Bonner, 356 Ill. App. 3d 386, 388-89 (2005) (Act is intended to protect the public rather than punish sex offenders)) and the statutory ability afforded only to juvenile offenders to terminate registration (see Rufus T., 409 Ill. App. 3d at 975 (section 3-5 of the Act is “intended to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation, by allowing them the opportunity to petition the court to remove them from the sex offender registry”)).

It must be recognized that the legislature tempered the high standard of “no risk” by incorporating a preponderance of the evidence burden of proof upon the petitioner. 730 ILCS 150/3-5(d) (West 2016). This statutory burden does not require proof beyond a reasonable doubt and can be satisfied with sufficient evidence to show that a fact is “more likely than not.” T.J.D., 2017 IL App (5th) 170133, ¶ 26.

We agree that if the burden of proof was beyond a reasonable doubt, the burden, combined with the “no risk” standard would effectively nullify section 3-5, as it is nearly impossible for a sex offender to show no risk of reoffending. Therefore, the adoption of the preponderance of the evidence burden of proof permitted B.C. to show that he posed “no risk to the community” even though evidence of some of the factors did not weigh in his favor.

The preponderance of the evidence burden of proof requires only that B.C. show that it is “more likely than not” (T.J.D., 2017 IL App (5th) 170133, ¶ 26) that he “poses no risk to the community” (730 ILCS 150/3-5(d) (West 2016)).

This standard is less exacting than the criminal beyond a reasonable doubt standard as it does not require B.C. to prove his case beyond all doubt, but that it is “more probable than not” that he poses no risk to the community. Munson’s testimony establishes that “low risk” is the label applied to the most successfully rehabilitated sex offender. Her explanation appears to make a “no risk” assessment, as required by subsection 3-5(d), an unattainable goal.

We note that the legal standard of “no risk,” when measured by a preponderance of the evidence, may be satisfied in spite of a “low risk” assessment by a nonjudicial professional evaluating defendant in a clinical, rather than legal, context.

Here, Munson’s expert testimony indicated that B.C. earned the highest rating a clinician could provide. Thus, based on the unique facts of this case, we conclude that B.C.’s “low risk” assessment weighs in favor of granting the petition. The only factor that went against granting the petition was the severity of the offense. And the victim impact panel went against him but it’s value was undermined.

The history of his evaluations was this:

In July 2000, McCormick stated B.C. had a low to moderate risk to commit future sex offenses. Relevant to B.C.’s mental and social history, the moderate risk factors cited by McCormick included B.C.’s failure to understand the exploitive nature of the offenses and B.C.’s negative self-esteem.

Kavanaugh’s October 2001 report indicated B.C. had worked to remedy at least some of these issues as he had consistently engaged in and progressed in treatment, admitted that he committed the offenses, decreased his level of denial, and expressed some empathy for the victims.

Munson’s testimony at the hearing on B.C.’s petition to terminate registration established that B.C. had resolved these issues after he completed the sex offender treatment program. In particular, Munson noted that B.C. had accepted responsibility for the offenses and understood his triggers.

Based on her evaluation of B.C., Munson opined B.C. had the lowest risk possible. Viewed together, this evidence showed that B.C. made substantial progress in correcting the mental issues that existed at the time of the offense. Further, B.C.’s testimony of his employment history, academic history, and current career established a positive educational and social history following the offenses.

Therefore, this factor weighs in favor of granting the petition. From our review of the record, the risk assessment, evidence of rehabilitation, age at the time of the offense, and B.C.’s mental, physical, emotional, and social history factors each weigh firmly in favor of granting the petition.

The evidence supporting the denial of the petition is limited to B.C.’s sex offender history, which consists only of two, albeit very serious, offenses and the victim impact statement. Therefore, we conclude B.C. met the burden of showing, by a preponderance of the evidence, that he poses “no risk” to the community. 730 ILCS 150/3-5(d), (e)(3) (West 2016).

We conclude that the court’s denial of B.C.’s petition to terminate registration was contrary to the manifest weight of the evidence.  The judgment of the circuit court of Kankakee County is reversed and remanded with directions for the court to grant B.C.’s petition to terminate sex offender registration.

Reversed and remanded with directions.

In re T.J.D. 2017 IL App (5th) 170133 (November) (this case goes against granting the petition).