Opinion filed November 28, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellant, ) ) Appeal No. 3-15-0852 v. ) Circuit No. 14-DT-1703 ) ANTHONY W. DAY, ) Honorable ) Raymond A. Nash, Defendant-Appellee. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion Presiding Justice O’Brien and Justice Carter concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 The State appeals from the trial court’s order quashing the arrest of the defendant,

Anthony W. Day. The State argues that the evidence presented at the statutory summary

suspension hearing established that the defendant’s arrest was supported by probable cause.

¶2 FACTS

¶3 The State charged the defendant with driving while under the influence of alcohol (DUI)

(625 ILCS 5/11-501(a)(2) (West 2014)). The Secretary of State subsequently imposed a six-

month statutory summary suspension of the defendant’s driver’s license. The defendant filed a petition to rescind the summary suspension, and a hearing on the defendant’s petition was held

on February 6, 2015.

¶4 At the hearing, the defendant called Daniel Lopez, the arresting officer, as his first

witness. Lopez testified that he observed the defendant driving a motor vehicle at approximately

3 a.m. on December 27, 2014. Lopez testified that in the time he observed the defendant driving,

the defendant made proper stops, proper signals, and drove safely. Nothing about the defendant’s

driving gave Lopez any indication that the defendant was under the influence of alcohol. Lopez

pulled the defendant over because excessive noises were emanating from his exhaust system.

Lopez recalled that the night in question was cold, but he could not recall whether it was raining.

He could not recall whether the roadway was wet. After refreshing his memory by referencing

his citations, Lopez agreed that it was raining when he administered the field sobriety tests.

¶5 The defendant gave Lopez his driver’s license and proof of insurance. Nothing about the

defendant’s actions indicated to Lopez that the defendant might be under the influence of

alcohol. In speaking to the defendant, Lopez found the defendant’s answers to be consistent with

the questions being asked of him. The defendant was not mumbling or slurring his words. Lopez

did, however, detect a strong odor of alcohol emanating from the defendant’s mouth.

¶6 Lopez instructed the defendant to exit the vehicle. The defendant did so, and as he

walked back to Lopez’s squad car, he briefly lost his balance, putting his hand on his own

vehicle to regain his balance. Lopez instructed the defendant to recite the alphabet from the letter

C to the letter R, but the defendant refused, telling Lopez he could not recite the alphabet

backward. Lopez then instructed the defendant to count backward from 69 to 44. The defendant

complied and accurately performed the task, though he did pause twice for approximately four

seconds. Lopez testified that while the defendant was counting, he noticed that the defendant was

2 slurring the numbers. He also noticed that the defendant’s eyes were “glassy [and] watery.” The

defendant did not sway or stumble during the counting, and had no trouble maintaining his

balance.

¶7 Lopez then asked the defendant if he had consumed any alcohol. The defendant told

Lopez that he began drinking at approximately 12:30 a.m. and stopped at approximately 3 a.m., a

half hour earlier. The defendant told Lopez he had been drinking beer.

¶8 Lopez administered a number of field sobriety tests on the defendant. Lopez testified that

the one-leg stand test must be administered on a flat, dry, level surface, and agreed that the test is

“invalid” if not administered in those conditions. Lopez admitted that the test should not be

administered in the rain. Lopez then testified that it was only drizzling at the time. When asked

how he now remembered that it was drizzling at the time and date in question, Lopez replied that

the reference to his report had triggered an independent recollection. In any event, Lopez

admitted that the one-leg stand test should not be administered during a drizzle. Lopez instructed

the defendant to hold one foot off the ground while counting to 30. The defendant dropped his

foot once in that span, at the nine-second mark. Lopez testified that the defendant swayed during

the test, but did not move his arms.

¶9 Lopez then asked the defendant to perform the walk-and-turn test on a straight crack in

the roadway. He stated that this test should also be administered on a dry surface.

Lopez testified that the defendant walked nine steps out and nine steps back, remaining on the

crack for each step, and never using his arms for balance. Lopez testified, however, that the

defendant executed an “improper turn” at the midpoint of the test. Lopez explained that the

defendant was supposed to take small steps in turning, but the defendant instead “made a large

3 turn.” The defendant also failed to count his steps out loud, as Lopez had instructed. The

defendant did not stumble or lose his balance.

¶ 10 Lopez testified that he administered the horizontal gaze nystagmus (HGN) test.

According to Lopez, that test showed that the defendant had consumed alcohol. That result,

combined with the results of the other field sobriety tests, indicated to Lopez that the defendant

was impaired. Lopez arrested the defendant and charged him with DUI.

¶ 11 On cross-examination by the State, Lopez testified that two passengers were in the

vehicle with the defendant, but that the odor of alcohol was emanating from the defendant’s

breath. The defendant indicated that he was coming from a party. Lopez also testified that the

defendant failed to touch his heel to his toe on the walk-and-turn test, contrary to Lopez’s

instructions. Lopez testified that the defendant failed both tests, with two clues on the one-leg

stand test, and four clues on the walk-and-turn test.

¶ 12 The defendant testified that he was driving his 1997 Jeep at approximately 3:30 a.m. on

December 27, 2014, when he was pulled over by Lopez. He had two passengers in the vehicle.

Lopez informed the defendant that he had been pulled over because a light above his license

plate was out. After walking away from the vehicle, then returning, Lopez informed the

defendant that his muffler was too loud. The defendant testified that his muffler was not loud.

After telling the defendant that he smelled the odor of alcohol on his breath, Lopez asked the

defendant to exit the vehicle.

¶ 13 The defendant testified that the roadway on the night in question was cold, wet, and slick.

The defendant denied using his vehicle for balance when exiting the vehicle. He testified that

Lopez instructed him to recite the alphabet backward. The defendant declined, and Lopez

instructed him to count backward from 69 to 44. The defendant testified that he completed that

4 test accurately and enunciated the numbers clearly. He testified that he also completed the one-

leg stand test without losing his balance or using his arms, and completed walk-and-turn test

without stumbling or stepping off the line. Each of those tests was performed in the rain. The

defendant testified that he was sick on the day in question.

¶ 14 On cross-examination, the defendant testified that he and his passengers were driving

from a gathering at his home when he was pulled over. He had consumed four 12-ounce bottles

of beer earlier in the night. He had consumed the last of those beers approximately 30 minutes

before Lopez pulled him over. The defendant testified that he was five feet, three inches tall, and

weighed between 115 and 120 pounds.

¶ 15 Following the conclusion of the defense’s case-in-chief, the State moved for a directed

finding. On the issue of whether the stop was supported by reasonable suspicion, the court found

that the defense had not made a prima facie case, and granted the State’s motion for directed

finding. However, on the issue of probable cause for the arrest, the court denied the motion for

directed finding, shifting the burden to the State to prove the arrest was supported by probable

cause. In so ruling, the court noted that factors such as the odor of alcohol and the results of the

HGN test only tended to show consumption of alcohol, rather than impairment. The court also

pointed out that the field sobriety tests had been administered incorrectly.

¶ 16 The State recalled Lopez in its case-in-chief. Lopez testified that he detected the odor of

alcohol emanating from the defendant’s breath when the defendant was outside of the vehicle.

When asked how strong the odor was, Lopez replied that it was strong enough to be detectable.

He testified that he provided the defendant with instructions for the one-leg stand, walk-and-turn,

and HGN tests verbatim from an instruction book provided by the Police Training Institute. The

two clues Lopez noticed on the one-leg stand test were the defendant’s swaying during the test

5 and putting his foot down on the count of nine. On the walk-and-turn test, the defendant failed to

place his heel to his toe while walking, and failed to count his steps out loud. Lopez

demonstrated those tests before administering them to the defendant, and the weather conditions

did not affect his demonstrations.

¶ 17 On cross-examination, Lopez again admitted that it was improper to administer the one-

leg stand and walk-and-turn tests on wet pavement. Lopez testified that he did not feel it was

“too wet or too rainy” to administer the tests on the defendant. Defense counsel addressed that

point on recross-examination:

“Q. Okay. So you mean to tell me then that your instructions say you can

do the one leg stand test on wet pavement as long as it’s not too wet; is that what

you’re saying?

A. Correct. I did the test.

Q. No, sir. You’re—

A. Correct. I answered your question. Yes.

Q. *** [W]hen you were at the academy it said that it’s okay to do the

walk and turn test when the pavement is wet?

A. I—I did the test.

Q. *** I know you did the test. What I’m saying is are you saying that the

instructions that you gave— were given with respect to doing these tests say it’s

okay to do the test when the pavement is wet?

A. Again my testimony I think I didn’t think it was that wet for him not to

do the test.

6 Q. That’s not what I’m asking you. I’m not asking you what you think.

I’m talking about what you were trained on with respect to the proper way to do

the test.”

The trial court then sustained the State’s objection to defense counsel’s continued questions.

¶ 18 Following arguments, the trial court granted the defendant’s motion to rescind the

statutory summary suspension, finding that Lopez did not have probable cause to arrest the

defendant for DUI. The court emphasized that there had been no driving violation, that the

defendant had performed reasonably well in the field sobriety tests, and that Lopez had “tap

danced a little bit about the rain issue from the rain to drizzling.”

¶ 19 The defendant subsequently filed a motion to quash arrest and suppress evidence in

which he argued that the arresting officer had no probable cause to believe he had committed the

offense of DUI. The trial court granted the motion on the grounds previously provided in its

ruling on the motion to rescind the statutory summary suspension. The State filed a motion to

reconsider, which the trial court denied. 1

¶ 20 ANALYSIS

¶ 21 In this interlocutory appeal, the State argues that Lopez had probable cause to arrest the

defendant for DUI, and that the trial court therefore erred in quashing the arrest and suppressing

evidence. The State does not, however, appeal the trial court’s granting of the defendant’s

petition to rescind his statutory summary suspension. The defendant has not filed a brief on

appeal.

1 The hearing on the motion to reconsider was held months after the trial court’s original ruling, and there was some confusion on the part of the parties and the court as to what evidence had been suppressed. To clarify, the trial court quashed the arrest and suppressed all evidence obtained thereafter. Thus, this appeal concerns the question of whether probable cause existed to make the arrest. 7 ¶ 22 In reviewing the trial court’s granting of the defendant’s motion to quash arrest, we defer

to all factual findings and credibility determinations unless they are contrary to the manifest

weight of the evidence. People v. Jones,

(2005). The ultimate question of

whether the arrest was supported by probable cause, however, is reviewed de novo.

.

“Probable cause to arrest exists when the facts known to the officer at the time of the arrest are

sufficient to lead a reasonably cautious person to believe that the arrestee has committed a

crime.” People v. Wear,

(2008). Such a determination must be based upon

the totality of the circumstances.

. Probable cause must rise to a level higher than mere

suspicion. E.g., People v. Boomer,

(2001). It must also rise to a level

higher than “reasonable, articulable suspicion,” the lesser standard required to justify an

investigatory stop, rather than a full arrest. E.g., Illinois v. Wardlow,

(2000).

¶ 23 The State lists a number of factors which, it argues, would reasonably have led Lopez to

believe that the defendant was driving while under the influence of alcohol. Specifically, the

State relies heavily on the fact that the defendant “failed to perform both field sobriety tests as

instructed.” The State also points out that the defendant admitted to drinking, “had the strong

odor of alcohol on his breath,” had bloodshot eyes, and slurred his speech. Upon closer

examination, however, the State’s purported laundry list of factors breaks down.

¶ 24 I. Field Sobriety Tests

¶ 25 In People v. Briseno,

(2003), the defendant argued for the first time

on appeal that the results of his field sobriety tests should not have been considered because he

was too overweight to adequately complete the tests even without the presence of alcohol in his

system. The parties agreed that the National Highway Traffic Safety Administration (NHTSA)

“has recognized that people who are more than 50 pounds overweight may have difficulty

8 balancing even when sober, and thus have problems physically completing the walk and turn test

and the one-legged stand test.”

. The First District accepted the defendant’s argument,

but found that other evidence presented was nevertheless sufficient to sustain a conviction

“[w]ithout taking into consideration the results of the field sobriety tests.”

¶ 26 In People v. Hires,

(2009), the defendant argued that the State had

failed to present any evidence that his field sobriety tests had been conducted under the

standardized conditions mandated by NHTSA. The defendant maintained that the State had

presented no evidence that his performance on those tests was in any way probative of

impairment.

. The Fourth District rejected the notion that the State needed to present

evidence that the tests were administered properly, finding that “the trier of fact needs no expert

assistance to explain the significance of behavior like defendant’s when deciding whether a

driver’s” faculties are impaired.

.

¶ 27 Other jurisdictions have also addressed the same NHTSA-sanctioned field sobriety tests,

and their proper administration. In State v. Meador,

(Fla. Dist. Ct. App. 1996), a

Florida appellate court held that where the State cannot show that the field sobriety tests were

administered in compliance with the reliable methodology promulgated by NHTSA, “[r]eference

to the exercises by using terms such as ‘test,’ ‘pass,’ ‘fail,’ or ‘points,’ *** creates a potential for

enhancing the significance of the observations in relationship to the ultimate determination of

impairment, as such terms give these layperson observations an aura of scientific validity.”

; see also United States v. Horn,

(D.Md. 2002) (“To interject into

this essentially descriptive process technical terminology regarding the number of ‘standardized

clues’ that should be looked for or opinions of the officer that the subject ‘failed’ the ‘test,’

especially when such testimony cannot be shown to have resulted from reliable methodology,

9 unfairly cloaks it with unearned credibility.”). In City of West Bend v. Wilkens,

(Wis. Ct. App. 2005), a Wisconsin appellate court held that the proper administration of

field sobriety tests goes to the weight of that evidence, not its admissibility, and that

“[s]tandardization may lead to reliability ***.”

¶ 28 Though the cases cited above address issues of trial evidence, they are the nevertheless

informative in the suppression context, where we consider the facts available to the officer at the

time. Here Lopez testified—explicitly and repeatedly—that he did not administer those tests

(one-leg stand and walk-and-turn) properly. He admitted that it was improper to administer those

tests on wet pavement, and improper to administer them while it was raining. He even agreed

that the improper administration of those tests rendered them “invalid.” Notably, Lopez initially

could not remember the weather on the night in question. After checking his report, however,

Lopez agreed that it was raining. Still later, Lopez apparently had an independent recollection

that it was only drizzling. He admitted that the field sobriety tests should not be administered in

even a drizzle. The defendant testified that the roadway was wet and slick.

¶ 29 The improper administration of the field sobriety tests in this case rendered the “results”

of those tests inherently less reliable, and the trial court rightly gave Lopez’s observations of

those tests less evidentiary weight. Unlike in Hires, where the State merely failed to present any

evidence concerning the proper administration of the field sobriety tests, the evidence here

affirmatively showed that those tests were not administered correctly. Where the tests were not

administered in accordance with NHTSA guidelines, the Briseno court completely disregarded

the results. Briseno,

. Put in terms of a probable cause determination: a

reasonably cautious person would give very little, if any, weight to the test results that the person

knew to be invalid. See Wear,

.

10 ¶ 30 What little probative value the “invalid” and improper testing might have is further

eroded when we look to that actual substance underlying Lopez’s descriptions. While Lopez and

the State broadly described the defendant as having “failed” the tests, the trial court—and this

court, in applying de novo review—must look to the actual observations that led to his

conclusions. See, e.g., Meador,

. Such an analysis shows that the defendant’s

“failures” on the field sobriety tests 2 in question were technical in nature and few in amount.

Regarding the one-leg stand test, Lopez testified that the defendant dropped his foot once while

counting to 30, and “swayed” but did not move his arms. On the walk-and-turn test, Lopez

testified that the defendant did not place his heel directly to his toe, did not count his steps out

loud, and made a “large turn” instead of a small turn.

¶ 31 As the trial court alluded to, the defendant’s performance on the field sobriety tests was

largely satisfactory. Indeed, we find that none of the purported “clues” on those tests could

indicate to a reasonable person that the defendant was impaired by alcohol. The defendant stood

on one foot for 30 seconds in the cold and rain, without using his arms to keep his balance, and

only put his foot down once. What Lopez described as a failure, others might describe as an

impressive achievement. On the walk-and-turn test, the defendant exhibited no signs of physical

impairment, such as the loss of balance or coordination. He remained on the line for each of the

required 18 steps, and never used his arms for balance. Each of his apparent shortcomings dealt

only with Lopez’s directions, and two of those—the placement of his feet and his “large turn”—

could have related to the wet and slick conditions in which the defendant was performing the

test, the very conditions that Lopez testified rendered the tests invalid.

2 The State on appeal agrees with the trial court that the defendant’s purported failure on the HGN test only indicates the consumption of alcohol, and does not contend that it is probative of impairment. 11 ¶ 32 In summary, Lopez administered the field sobriety tests in an improper fashion by

requesting the defendant perform them on a wet surface while it was raining. This improper

administration alone significantly impairs the probative weight that can be given to those tests.

Even further, despite the weather conditions, the defendant’s performance on the tests was

reasonable, standing on one foot for 30 seconds without using his arms for balance, and walking

a straight line for 18 steps without stepping off the line. Those results would not lead a

reasonably cautious person to believe that the defendant was impaired by alcohol.

¶ 33 II. Other Factors

¶ 34 As further factors supporting a reasonable belief that the defendant was under the

influence of alcohol, the State cites his admission to drinking earlier in the night, the odor of

alcohol emanating from his mouth, his bloodshot and glassy eyes, and his slurred speech.

¶ 35 Initially, we note that the State asserts that the defendant’s speech was slurred, with no

reference to the defendant’s own testimony. Lopez testified that the defendant’s speech was

normal while he sat in the vehicle, but that Lopez only noticed the slur when the defendant

counted down numbers from 69 to 44. The defendant, however, testified that he enunciated the

numbers perfectly during that exercise. Determination of whether the defendant’s speech was

slurred thus turns on the question of credibility, and we may infer from the trial court’s ultimate

ruling that it resolved this question in the defendant’s favor. See, e.g., People v. Byrd,

(2011) (holding that the trial court’s “legal conclusion sufficiently informs us of

the supporting inferences the trial judge may have drawn to reach [its] decision”); see also

People v. Howery,

(1997) (“[T]he trial court is presumed to know the law and

apply it properly.”). We must defer to this factual finding. Jones,

.

12 ¶ 36 We next consider the effect of bloodshot and glassy eyes and admitted alcohol

consumption upon the reasonably cautious person’s conclusions. See Wear,

.

The consumption of alcohol—here established both by the defendant’s own admission as well as

the odor of an alcoholic beverage—is relevant to the question of impairment by alcohol. E.g.,

People v. McKown,

(2010). The consumption of alcoholic beverages,

however, even considered in conjunction with bloodshot or glassy eyes, may not alone give rise

to probable cause. As the Second District has explained

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

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

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

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

Generally, these observations are supplemented by other observations apparent to

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

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

as in the case at bar, being in a vehicle which is stuck in the mud.” (Emphasis

added.) People v. Wingren,

(1988).

Certainly, the number of alcoholic beverages a driver admits to having consumed may rouse

suspicions of probable cause. Here, however, though the defendant testified at the hearing as to

how much he had consumed, there was no evidence presented that he ever provided those details

to Lopez.

¶ 37 In the present case, any suspicions of impairment that may have been raised by the

defendant’s admitted consumption of alcohol and bloodshot and glassy eyes were not

corroborated in any significant way by any other factors. By all accounts, the defendant’s driving

13 on the night in question had been nothing short of perfect. He had not been involved in any sort

of accident. He was able to communicate clearly and effectively with Lopez. The field sobriety

tests, improperly administered on a wet, slick surface while it was raining, gave no indication

that the defendant was suffering from any sort of physical impairment. While Lopez testified that

the defendant briefly lost his balance in walking from his vehicle, the defendant denied this

accusation. See supra ¶ 37.

¶ 38 The fact that the defendant consumed alcohol and had glassy and bloodshot eyes is

certainly probative of impairment. To a lesser extent, so too is the defendant’s failure to perfectly

follow test instructions. We agree with the trial court, however, that those factors are not enough

to lead a reasonably cautious person to believe that the defendant had committed the crime of

DUI. That is, any suspicions aroused by bloodshot and glassy eyes, unless confirmed by some

other factor—such as poor driving, stumbling, falling, or an inability to communicate clearly—

does not rise to the level of probable cause. Accordingly, we affirm the trial court’s order

quashing the defendant’s arrest and suppressing all evidence obtained past that point.

¶ 39 CONCLUSION

¶ 40 The judgment of the circuit court of Will County is affirmed.

¶ 41 Affirmed.

14