Opinion filed December 8, 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. 3-15-0806 v. ) Circuit Nos. 15-DT-715 and ) 15-TR-38164 ) ADALIE M. KAVANAUGH, ) Honorable ) Bennett J. Braun, Defendant-Appellee. ) Judge, Presiding. _____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Holdridge specially concurred, with opinion. _____________________________________________________________________________

OPINION

¶1 The State appeals the trial court’s order granting the petition to rescind statutory

summary suspension filed by defendant, Adalie M. Kavanaugh. The State argues that the

evidence presented at the hearing on the petition was sufficient to establish that the arresting

officer had reasonable grounds to believe defendant was operating a vehicle while under the

influence of cannabis. We reverse and remand for further proceedings. ¶2 FACTS

¶3 Defendant was charged with driving under the influence of drugs (625 ILCS 5/11-

501(a)(4) (West 2014)) for an incident that occurred on May 13, 2015. On August 26, 2015,

defendant was also charged with driving with any amount of cannabis in her breath, blood, or

urine, resulting from the unlawful use of cannabis in violation of section 11-501(a)(6) of the

Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(6) (West 2014)) in connection with the

incident on May 13, 2015.

¶4 A confirmation of statutory summary suspension from the Office of the Secretary of State

was filed on September 8, 2015. Defendant filed a petition to rescind statutory summary

suspension, arguing that: (1) she was not properly placed under arrest for an offense as defined in

section 11-501 of the Code (625 ILCS 5/11-501 (West 2014)); (2) the arresting officer did not

have reasonable grounds to believe she was driving while under the influence of alcohol (DUI),

drugs, or a combination thereof; (3) she was not properly warned by the arresting officer

pursuant to section 11-501.1 of the Code (625 ILCS 5/11-501.1 (West 2014)); and (4) she did not

refuse to submit to or complete required chemical testing upon the request of the arresting

officer.

¶5 A hearing was held on defendant’s petition. Defendant called Trooper Matt Windisch as

her only witness. Windisch testified that he had been employed with the Illinois State Police for

approximately 2½ years. Windisch had received training in DUI detection, including training on

detecting whether a driver was under the influence of drugs. Windisch completed a 40-hour

course, of which approximately half was dedicated to cannabis or drug detection.

¶6 On the evening of the incident, Windisch was at a traffic stop on Interstate 80 when he

observed a dark sedan drive off the road and crash into the ditch. Windisch drove to the scene of

2 that accident and observed the sedan in the ditch and a blue Ford parked on the shoulder of the

highway across from the ditch. Windisch approached the blue Ford and spoke with defendant,

who had been the driver. Defendant told Windisch that she “failed to check her blind spot and

cut off the other vehicle, causing it to go into the ditch.” Defendant’s vehicle never made contact

with the other vehicle.

¶7 When Windisch approached the Ford, he detected the odor of burnt cannabis. Windisch

asked defendant if she had anything illegal in the car, and she eventually admitted that she had

cannabis. Defendant also had a pipe and a grinder in her car. Windisch testified that the cannabis

was located under the seat. Defendant told Windisch she smoked cannabis approximately one

week prior to the incident.

¶8 Windisch did not observe that defendant had any difficulty walking when she exited her

vehicle, and he did not smell cannabis on defendant’s breath. Windisch had defendant perform

several field sobriety tests, including the walk-and-turn and one-leg stand tests. Windisch stated

that defendant failed the walk-and-turn test because: (1) she “missed heel to toe” on steps four

through nine, as well as all of her return steps; (2) she made an improper turn; and (3) she held

her arms out more than six inches from her side. Defendant also failed the one-leg stand test

because she swayed and used her arms. Windisch stated that defendant put her hands out to her

side when she first raised her foot but kept them at her side after that.

¶9 Windisch testified that he had also been trained to check a person’s eyes for drug

impairment. Windisch testified that in detecting impairment for cannabis, he was trained to look

for lack of convergence. Windisch observed “[s]trong lack of convergence” in defendant’s left

eye.

3 ¶ 10 Windisch testified that he arrested defendant because she admitted to improper lane usage

causing another vehicle to crash, Windisch detected the odor of burnt cannabis in her car,

defendant had cannabis and paraphernalia in the car, and defendant failed the field sobriety tests.

Windisch was also convinced defendant was unable to safely operate a motor vehicle.

¶ 11 Windisch testified that his dashboard camera was operating during the encounter and that

the entire encounter would have been videotaped. The video recording was played in open court.

The video showed that Windisch’s encounter with defendant occurred at night on the shoulder of

an interstate. It was difficult at times to hear what defendant and Windisch were saying to each

other because the noise from the traffic was very loud. While Windisch was explaining the

directions for the walk-and-turn test, defendant raised her arms out far from her body, as if to

gain her balance. Windisch then told her to keep her arms at her sides. While actually performing

the test, defendant appeared to walk in a straight line but held her arms out to the side. While

performing the one-leg stand test, defendant initially raised her arms to gain her balance. It did

not appear that she raised her arms again after that.

¶ 12 The State moved for a directed finding. The trial court took the State’s motion under

advisement. The trial court then stated: “Here’s my take on this at this point, just so you folks

know. The field sobriety tests, to me, seem borderline at best.” The trial court noted that

defendant performed the tests on the side of an expressway with heavy traffic, including semi

trucks, driving by approximately 10 feet away from her. The trial court opined, “[I]t doesn’t

seem to me that there’s an awful lot of basis there to determine the defendant was under the

influence of, of drugs.”

¶ 13 The trial court ultimately denied the motion for directed finding. The court noted that

Windisch had testified that he did not detect an odor of cannabis on defendant’s breath.

4 ¶ 14 The State recalled Windisch in its case-in-chief. Windisch again testified that he

completed a training course on drug impairment that lasted approximately 40 hours. One to two

days of the training focused on cannabis. Windisch testified that the active agent in cannabis was

tetrahydrocannabinol (THC). Windisch learned to administer a convergence test to detect

cannabis impairment. Windisch explained the test as follows:

“Which is a test where the subject will follow our eyes—or our finger or

stimulus in a circle. And we will get close to the subject’s face, between their

eyes, and they are supposed to follow our finger.

Indication of THC consumption makes, makes it difficult for the subject’s

eyes to follow the stimulus towards their body. You can kind of compare it to one

eye staying straight, whereas the other eye will follow your finger.”

¶ 15 Windisch testified that, based on his experience, a lack of convergence indicated that an

individual had THC in his or her system. Windisch performed a convergence test on defendant,

and observed a strong lack of convergence in defendant’s left eye. Windisch acknowledged that

“some of the population” were unable to do a convergence test.

¶ 16 Windisch had tested approximately “half a dozen” people for drug impairment prior to

the incident involving defendant. Windisch testified the walk-and-turn and one-leg stand tests

were scored the same in cases of alcohol and drug impairment. Windisch stated, however, that

when he suspected cannabis impairment he looked for gaps between the feet and holding arms

away from the body because THC creates “a difficulty in spatial judgment.”

¶ 17 Windisch testified that, based on his training and experience, he was familiar with the

difference between the odor of stale burnt cannabis and freshly burnt cannabis. Windisch

testified that freshly burnt cannabis had a stronger odor and “you can smell it more so in the air.”

5 In this case, Windisch stated, the odor of cannabis was “more freshly burnt” than stale. Based on

the strength of the odor in defendant’s car, Windisch did not believe defendant when she told

him she smoked cannabis a week prior. Windisch did not detect an odor of cannabis on

defendant’s breath. Windisch explained, however, that he had many experiences where “we’ve

observed people smoking weed and it has not been—smoking cannabis, you know, has not been

on their breath at all.”

¶ 18 Windisch testified that when defendant was still in her car, she produced a bag from

under the front passenger seat that contained cannabis and a grinder. Windisch observed a glass

pipe on the driver’s seat after defendant exited the vehicle. The parties stipulated that Windisch’s

report said the pipe was found under the front passenger’s seat.

¶ 19 After hearing arguments, the trial court granted the petition to rescind statutory summary

suspension. The court reasoned: “What the Court finds as critical evidence is that although there

was an odor of cannabis in the vehicle, the trooper testified that when the defendant was outside

the vehicle, he did not observe any odor of burnt cannabis on her person or otherwise on her

breath.”

¶ 20 The court stated that it was giving no weight to the convergence test because the court

was unfamiliar with any scientific basis for the test. After reviewing the video of the walk-and-

turn and one-leg stand tests, the court concluded: “The Court finds that those field sobriety tests

are actually favorable to the defendant. I do not characterize those as fails.” The trial court stated

that it placed “significant weight” on the fact that the tests were performed on the shoulder of the

interstate with heavy traffic passing within 10 to 15 feet of defendant. The trial court concluded:

“I simply find the defendant did relatively well and that the video simply does not corroborate

the trooper’s testimony as to those tests being indicative of the defendant being under the

6 influence of cannabis.” The trial court also noted that there was a lack of evidence as to

defendant’s demeanor, including whether she had red eyes or slurred speech.

¶ 21 The trial court found that the following evidence was favorable to the State: (1)

defendant’s lane violation; (2) the odor of cannabis in defendant’s vehicle; (3) defendant’s

admission that she consumed cannabis a week earlier; and (4) the cannabis, pipe, and grinder

found in defendant’s vehicle. The court accepted Windisch’s testimony that he detected an odor

of burnt cannabis, but did not accept his opinion testimony that the cannabis was freshly burnt.

The court did not accept Windisch’s testimony that the pipe was found on the driver’s seat, but

found that the pipe was located under the front passenger seat.

¶ 22 ANALYSIS

¶ 23 The State argues that the trial court erred in granting the petition to rescind statutory

summary suspension. Specifically, the State contends that the evidence at the hearing on the

petition established that Windisch had reasonable grounds to believe defendant committed a DUI

violation.

¶ 24 Initially, we note that defendant has failed to file a brief on appeal. Therefore, we decide

this case pursuant to the holding in First Capitol Mortgage Corp. v. Talandis Construction

Corp.,

(1976). In Talandis, the supreme court held that in the absence of an

appellee brief, the reviewing court may decide the merits of an appeal “if the record is simple

and the claimed errors are such that the court can easily decide them without the aid of an

appellee’s brief.”

If the issues are not easily decided, we may reverse the judgment of the trial

court if the appellant’s brief demonstrates prima facie reversible error.

“ ‘Prima facie means,

“at first sight, on the first appearance; on the face of it, so far as can be judged from the first

disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the

7 contrary.” ’ ”

at 132 (quoting Harrington v. Hartman,

(Ind. Ct. App.

1968), quoting Ellet v. Ellet,

(Ind. Ct. App. 1965)). We find that the issue

raised by the State is not easily decided and demonstrates prima facie reversible error.

¶ 25 The scope of a hearing on a petition to rescind statutory summary suspension is limited to

the following issues:

“1. Whether the person was placed under arrest for an offense as defined

in Section 11-501, or a similar provision of a local ordinance, as evidenced by the

issuance of a Uniform Traffic Ticket ***; and

2. Whether the officer had reasonable grounds to believe that the person

was driving or in actual physical control of a motor vehicle upon a highway while

under the influence of alcohol, other drug, or combination of both; and

3. Whether the person, after being advised by the officer that the privilege

to operate a motor vehicle would be suspended or revoked if the person refused to

submit to and complete the test or tests, did refuse to submit to or complete the

test or tests to determine the person’s blood alcohol or drug concentration; or

4. Whether the person, after being advised by the officer that the privilege

to operate a motor vehicle would be suspended if the person submits to a chemical

test, or tests, and the test discloses an alcohol concentration of 0.08 or more, or

any amount of a drug, substance, or compound in the person’s blood or urine

resulting from the unlawful use or consumption of cannabis listed in the Cannabis

Control Act, *** and the person did submit to and complete the test or tests that

determined an alcohol concentration of 0.08 or more.” 625 ILCS 5/2-118.1(b)(1)

to (4) (West 2014).

8 ¶ 26 In the instant case, the issue was whether the arresting officer had reasonable grounds to

believe that defendant was driving while under the influence of cannabis under section 2-

118.1(b)(2) of the Code (625 ILCS 5/2-118.1(b)(2) (West 2014)). “In determining whether there

has been ‘reasonable grounds’ under subsection (b)(2) of the statute, this court has utilized the

probable cause analysis deriving from the fourth amendment.” People v. Wear,

(2008). “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.”

. “ ‘ “The standard for determining whether probable cause is

present is probability of criminal activity, rather than proof beyond a reasonable doubt.

[Citations.]” ’ ”

at 564 (quoting People v. Garvin,

(2006), quoting People

v. Lee,

(2005)). “[P]robable cause does not even demand a showing that the

belief that the suspect has committed a crime be more likely true than false.”

¶ 27 “ ‘[W]e give great deference to the trial court’s factual findings, and we will reverse those

findings only if they are against the manifest weight of the evidence.’ ”

at 561 (quoting

People v. Luedemann,

(2006)). However, “ ‘we review de novo the trial

court’s ultimate legal ruling’ as to whether the petition to rescind should be granted.”

at 562

(quoting Luedemann,

).

¶ 28 Initially, we note that the trial court properly refused to consider Windisch’s testimony

regarding the convergence test. From the outset of Windisch’s testimony about the convergence

test, the defendant strenuously objected to such testimony due to the lack of reliability of the

results. The defendant challenged the acceptance of these test results within the scientific and

legal community. In denying the State’s motion for a directed finding, the trial court found

defendant had made a prima facie case for rescission. The burden then shifted to the State. The

9 State was then required to lay an adequate foundation for the convergence test in order to

introduce the results of the test in its case-in-chief. See People v. Rozela,

(2003). The State failed to adequately demonstrate a scientific basis for the convergence test.

Instead, Windisch merely described the test and testified that he had learned to perform the test

at a training course. Windisch admitted that some of the population was unable to do a

convergence test but offered no further explanation. Without more, Windisch’s testimony

regarding the convergence test did not lay a sufficient foundation for admission of the test.

Consequently, the trial court properly refused to consider the test and we will not consider the

test in our analysis.

¶ 29 Nevertheless, we find that, even accepting the trial court’s factual findings, the evidence

at the hearing established that Windisch had reasonable grounds to believe defendant was driving

while under the influence of cannabis. Windisch testified that defendant admitted that she failed

to check her blind spot before changing lanes, causing another vehicle to drive into the ditch. See

People v. Brodeur,

(1989) (holding that the fact that the “defendant had

clearly been in a motor vehicle accident, which the officer could have reasonably surmised had

been caused, at least in part, by her intoxication” was relevant in determining that the officer had

probable cause to arrest the defendant).

¶ 30 Windisch also detected a strong odor of burnt cannabis in defendant’s car and located a

pipe, grinder, and cannabis under defendant’s front passenger seat. In People v. Davis,

, the court held that probable cause to arrest for DUI existed in similar

circumstances. Specifically, in Davis, the arresting officer testified that there was an odor of

cannabis emitting from the defendant’s vehicle, there were rolling papers and cannabis in the

defendant’s vehicle, and the defendant admitted she had smoked cannabis earlier that day.

10 Although defendant in the instant case told Windisch that she had smoked cannabis a week prior

to the incident, he did not believe her based on the strength of the odor of burnt cannabis in her

vehicle.

¶ 31 We conclude that the facts of defendant’s erratic driving, the strong odor of burnt

cannabis in her vehicle, and the presence of cannabis and paraphernalia in her vehicle were

sufficient “to lead a reasonably cautious person to believe” defendant was driving while under

the influence of cannabis. Wear,

.

¶ 32 CONCLUSION

¶ 33 The judgment of the circuit court of Will County is reversed and the cause is remanded

for further proceedings.

¶ 34 Reversed and remanded.

¶ 35 JUSTICE HOLDRIDGE, specially concurring.

¶ 36 I join in the majority’s judgment. However, I take issue with the trial court’s refusal to

consider Trooper Windisch’s testimony regarding the results of the “convergence test” that he

performed on the defendant. The trial court summarily dismissed Trooper Windisch’s testimony

on this issue because it was not familiar with any scientific basis for the test. That prevented the

court from considering the testimony of an experienced veteran officer, even though the officer

described the test and testified that he had learned to apply the test during a training course. If the

trial court was concerned about the foundation presented in support of the convergence test, the

better practice would have been to conduct a Frye (Frye v. United States,

(D.C. Cir.

1923)) hearing.

11