Opinion filed April 19, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, Plaintiff-Appellant, ) Peoria County, Illinois. ) v. ) Appeal No. 3-16-0154

) Circuit No. 15-DT-403

GARRETT MOTZKO, )

) The Honorable

Defendant-Appellee. ) Lisa Y. Wilson, ) Judge, Presiding. _____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Carter and McDade concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Garrett Motzko was charged with driving under the influence of alcohol

(DUI) (625 ILCS 5/11-501(a)(2) (West 2014)). Defendant filed a motion to quash arrest and

suppress evidence, as well as a petition to rescind his statutory summary suspension. The trial

court granted defendant’s motion to suppress. The State filed motions to reconsider, which the

trial court denied. The State then appealed the trial court’s order, granting defendant’s motion to

suppress. Thereafter, the court granted defendant’s petition to rescind. On appeal, the State

argues that the trial court (1) erred in granting defendant’s motion to suppress, (2) erred in denying its motions to reconsider, and (3) lacked subject matter jurisdiction to grant defendant’s

petition to rescind. We affirm.

¶2 FACTS

¶3 On August 11, 2015, defendant was involved in single-vehicle motorcycle accident at the

intersection of Main Street and Crescent Avenue in Peoria. Officer Michael Bishoff of the Peoria

police department responded to the scene and issued defendant citations for improper lane usage

(625 ILCS 5/11-709(a) (West 2014)), failure to reduce speed to avoid an accident (625 ILCS

5/11-601(a) (West 2014)), and DUI (625 ILCS 5/11-501(a)(2) (West 2014)). On October 30,

2015, defendant filed a motion to suppress evidence and quash arrest and a petition to rescind the

statutory summary suspension of his driving privileges.

¶4 A hearing was held on defendant’s motion to suppress evidence and quash arrest. Officer

Bishoff was the only witness to testify at the hearing. Bishoff testified that, at approximately

11:45 p.m. on August 11, 2011, he was dispatched to an accident on Main Street and Crescent

Avenue in Peoria, near Methodist Hospital. When he arrived, he saw a motorcycle lying on its

side and defendant sitting on the ground being treated by medical personnel. Bishoff spoke to a

security guard employed by Methodist Hospital, who told him that he observed defendant drive

his motorcycle up Main Street at a “high rate of speed,” fail to negotiate the curve, and crash.

The security guard also told Bishoff that he could smell alcohol on defendant’s breath. Bishoff

did not question the security guard further.

¶5 Bishoff spoke to defendant while he was being treated at the scene. Bishoff asked

defendant where he was coming from, and he responded, “downtown.” Bishoff then asked

defendant if he was coming from his home in Morton, and defendant said he was. Bishoff asked

defendant if he had consumed any alcohol. Defendant initially stated that he had a 12-ounce beer

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and then corrected himself and said he had a 20-ounce beer. Bishoff did not ask defendant any

other questions before he was transported to the hospital.

¶6 At the hospital, Bishoff performed a Horizontal Gaze Nystagmus (HGN) test on

defendant. Bishoff did not perform any other field sobriety tests on defendant because of his

injuries from the accident. Before the administration of the HGN test, defendant told Bishoff that

he was blind in his right eye. Bishoff did not remember asking defendant if he struck his head

during the accident but admitted that defendant may have sustained a head injury. Bishoff did not

take that into account when administering the HGN test to defendant.

¶7 Bishoff testified that he observed five clues during defendant’s HGN test and explained

that the presence of four or more clues is a strong indication that the individual being tested is

“over .08 or intoxicated.” Bishoff testified that he received training in the HGN test and was

taught that it can be used to determine if someone is intoxicated. He testified that HGN is “one of

the most *** accurate tests in determining somebody to be over a .08 [blood alcohol level].”

¶8 In his report, Bishoff listed “glassy bloodshot eyes, slight odor of an alcoholic beverage,

single vehicle crash involving motorcycle, [and] admission to drinking” as his reasons for

believing defendant was driving under the influence of alcohol. At the hearing, Bishoff testified

that he arrested defendant for DUI based on the clues he observed on the HGN test, the odor of

an alcoholic beverage on defendant, defendant’s glassy, bloodshot eyes, and his admission to

drinking. Bishoff also considered that defendant was likely coming from a bar when the accident

happened based on defendant’s statement that he had been “downtown.” Bishoff testified that he

also considered the accident and the statements by the security guard when he arrested defendant

for DUI.

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¶9 Bishoff admitted that a person could smell of an alcoholic beverage if he only had one

drink and that he had no way of knowing how much someone drank based solely on smell. He

also admitted that he did not ask defendant if he could explain his bloodshot eyes or if dirt or

debris got into his eyes during the accident. Bishoff testified that defendant initially seemed

honest with him, but Bishoff questioned whether defendant was telling the truth about having

only one drink because defendant said he was “coming from downtown” which “is a bar area.”

Based on the time of defendant’s accident and that defendant was coming from downtown,

Bishoff assumed defendant was coming from a bar. Bishoff admitted it is not illegal to consume

alcohol and drive. He also admitted that accidents have many causes and said he did not arrest

defendant for DUI because he had an accident. Bishoff admitted that he had no training in

accident reconstruction that would help him determine the cause of defendant’s accident. Bishoff

also admitted that he had no record or recollection of defendant having slurred speech.

¶ 10 Bishoff testified that defendant refused to perform a portable breath test (PBT) before his

arrest. The State then asked Bishoff if he asked defendant to provide a blood, breath, or urine

sample after his arrest, and defense counsel objected. The trial court sustained the objection. The

parties stipulated to Bishoff’s training and experience. Defendant stipulated that Bishoff properly

explained the HGN test but did not stipulate that he performed the test correctly on defendant.

¶ 11 On December 22, 2015, the trial court granted defendant’s motion to suppress evidence

and quash arrest. The court explained that Bishoff’s testimony that HGN testing can determine

the level of intoxication was wrong under People v. McKown,

(2010), and caused

the court to call into question his “credibility on the issue of impairment in this case” as well as

the HGN test itself “in terms of the officer’s experience, knowledge of the standards, and how it

was conducted.” The court also took issue with Bishoff’s failure to investigate whether defendant

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had a head injury that may have affected his performance on the HGN test and the State’s failure

to call the security guard to testify about his observations of defendant’s driving.

¶ 12 Thereafter, the State filed a motion to reconsider and an amended motion to reconsider,

arguing that the trial court should have allowed evidence of defendant’s post-arrest refusal to

submit to chemical testing to be admitted at the suppression hearing. The State also filed a

motion to reopen proofs, seeking to introduce defendant’s medical records as evidence. The trial

court denied the State’s motions to reconsider and motion to reopen proofs. On March 16, 2016,

the State filed a notice of appeal, appealing the trial court’s ruling on defendant’s motion to

suppress.

¶ 13 On April 12, 2016, the trial court held a hearing on defendant’s petition to rescind. The

State filed a notice of intent to use subpoenaed medical records containing statements and

observations of defendant on the date of the accident. The trial court denied the State’s motion.

The parties stipulated that, if called to testify, Bishoff would provide the same testimony as he

provided at the suppression hearing.

¶ 14 Defendant testified at the rescission hearing that he vaguely remembered the night of the

accident because he hit his head when he crashed his motorcycle. He testified that he travelled

from his house in Morton to Pulse Gentlemen’s Club in downtown Peoria, where he drank one

20-ounce beer. He did not believe his alcohol consumption had anything to do with his accident.

Defendant said he refused to take a PBT because he had shattered his heel in the accident, was

agitated, and wanted to leave the hospital.

¶ 15 The trial court granted defendant’s petition to rescind based on Bishoff’s testimony at the

suppression hearing, its ruling on defendant’s motion to suppress, and “in consideration of

Defendant Garrett Motzko’s testimony.”

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¶ 16 ANALYSIS

¶ 17 I. Motion to Suppress

¶ 18 The State argues that the trial court erred in granting defendant’s motion to suppress

evidence. In reviewing a trial court’s ruling on a motion to suppress, we accord great deference

to the trial court’s factual and credibility determinations. People v. Simpson,

, ¶ 22. When a trial judge makes a credibility finding at a suppression hearing, we should

be reluctant to substitute our judgment for that of the trial court. People v. Nolan,

(1978). The trial court is in a far better position to judge the credibility of the witnesses.

When a trial court’s ruling on a motion to suppress involves factual and credibility

assessments, the ultimate ruling will not be disturbed on appeal unless it is manifestly erroneous.

People v. Boomer,

(2001). However, the trial court’s ultimate

determination with respect to probable cause is reviewed de novo.

¶ 19 “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 on the totality of the circumstances at the time of the arrest. People v. Day,

. Probable cause must rise to a level higher than mere suspicion.

¶ 20 The odor of alcohol on a defendant’s breath and his inadequate performance of a field

sobriety test do not constitute reasonable grounds to believe that the defendant was driving under

the influence. See Boomer,

(citing People v. Tucker,

(1993)). Speeding and being involved in an accident are insufficient bases upon which to support

a DUI probable cause determination. See Boomer,

(officer lacked

probable cause to arrest defendant for DUI where defendant was involved in accident, admitted

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drinking, and had the odor of alcoholic beverage on his breath); People v. O’Brien,

(1992) (no probable cause to arrest defendant for DUI where defendant was

speeding, admitted to drinking, and unsuccessfully performed sobriety test). Finally, a

defendant’s consumption of alcohol and glassy bloodshot eyes “are not enough to lead a

reasonably cautious person to believe that the defendant had committed the crime of DUI.” Day,

. Where a defendant admitted to drinking, “ ‘had the strong odor

of alcohol on his breath,’ ” had bloodshot eyes, and slurred his speech, the trial court properly

ruled that the officer lacked probable cause to arrest the defendant for DUI because any

suspicions of impairment were not corroborated by other factors, such as poor driving,

stumbling, falling, or an inability to communicate. See Day,

.

¶ 21 Evidence of HGN testing, when performed according to protocol by a properly trained

officer, is admissible for the purpose of showing that the subject has likely consumed alcohol.

McKown,

. While HGN testing is an indicator of alcohol consumption, it is not

necessarily a sign of impairment.

. There should be no attempt to correlate HGN test

results with any particular blood-alcohol level or range or level of intoxication.

For the results

of HGN testing to be admissible, a proper foundation must be laid, showing that the witness is

properly trained and performed the test in accordance with proper procedures.

. “The

admissibility of HGN evidence in an individual case will depend on the State’s ability to lay a

proper foundation and to demonstrate the qualifications of its witness ***.”

.

¶ 22 Here, Bishoff testified that he arrested defendant for DUI based on the odor of an

alcoholic beverage on defendant’s breath, defendant’s glassy and bloodshot eyes, and his

admission to drinking. However, Bishoff admitted that he could not tell how much defendant

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drank based on the “slight odor” of an alcoholic beverage on defendant’s breath. He also testified

that defendant seemed honest to him before admitting that he had one drink. Additionally,

Bishoff admitted that he never asked defendant about the condition of his eyes, including if they

were irritated as a result of the accident.

¶ 23 As set forth in Day, the odor of an alcoholic beverage, admission to drinking, and glassy

and bloodshot eyes are insufficient to create probable cause for a DUI without evidence of other

factors to support impairment, such as poor driving, stumbling, falling, or an inability to

communicate. Day,

. There was no testimony or evidence

that any of these factors were present to support Bishoff’s assumption that defendant was driving

under the influence.

¶ 24 Bishoff testified that he also considered the accident and the testimony of the security

guard in determining that defendant was impaired. However, Bishoff admitted that he did not

question the security guard about exactly how fast he thought defendant was driving and further

that he had no experience in accident reconstruction that would cause him to believe that the

accident was caused by the defendant being impaired. Speeding and being involved in an

accident are insufficient bases upon which to support a DUI probable cause determination. See

Boomer,

; O’Brien,

.

¶ 25 Finally, Bishoff testified that defendant’s performance on the HGN test caused him to

believe that defendant was impaired. Bishoff explained how he performed the HGN test on

defendant and said that he used the test to determine that defendant was “over .08 or

intoxicated.” He testified that he was taught that HGN proves impairment and is “one of the most

*** accurate tests in determining somebody to be over a .08.” However, as explained by the

supreme court in McKown, HGN testing is an indicator of alcohol consumption but is not an

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indicator of a specific level of impairment. See McKown,

; see also Pamela J.

Jensen, Frye Versus Daubert: Practically the Same?,

, 1595 n. 90 (2003)

(“States have almost uniformly excluded HGN testing as evidence of a specific blood alcohol

level, as opposed to evidence of alcohol consumption ***[.]”); William Redfairn & Bruce

Nelson, The ABCs of FSTS: A Brief Summary of Field Sobriety Tests in DUI Cases, Nev. Law.,

Sept. 2006, at 8, 12 (“[T]he general consensus is that the HGN *** is admissible to show

impairment but not to show a specific alcohol level.”). By stating that HGN testing was the most

reliable indicator of whether someone has a blood alcohol level of .08, Bishoff showed that he

was not properly trained to understand and interpret the results of HGN testing. The trial court

did not err in giving little to no weight to Bishoff’s determination that defendant failed the HGN

test because the State failed to show that Bishoff possessed the expertise to properly understand

the results of HGN testing. See McKown,

.

¶ 26 At the suppression hearing, the trial court stated that it questioned Bishoff’s “credibility

on the issue of impairment in this case.” Where the trial court finds the State’s primary or only

witness at a suppression hearing to lack credibility, the trial court does not err in granting the

defendant’s motion to suppress. See People v. Stehman,

(2002); People v.

Luna,

(2001); People v. Boston,

(1979).

Because Bishoff was the only witness to testify at the suppression hearing and the trial court

questioned his credibility, the trial court properly granted defendant’s motion to suppress. See

Stehman,

; Luna,

; Boston,

.

¶ 27 II. Motions to Reconsider

¶ 28 The State argues that the trial court erred in denying its motions to reconsider, asserting

that the court misapplied section 11-501.2(c) of the Illinois Vehicle Code (Code) (625 ILCS

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5/11-501.2(c) (West 2014)) by refusing to consider defendant’s post-arrest refusal to submit to

chemical testing. When a motion to reconsider raises the question of whether the trial court erred

in its application or purported misapplication of existing law, our review is de novo. People v.

$280,020 United States Currency,

(2007).

¶ 29 Section 11-501.2(c) of the Code provides in pertinent part: “If a person under arrest

refuses to submit to a chemical test under the provisions of Section 11-501.1, evidence of refusal

shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to

have been committed while the person under the influence of alcohol *** was driving or in

actual physical control of a motor vehicle.” 625 ILCS 5/11-501.2(c)(1) (West 2014). Section 11­

501.1 of the Code, referenced in section 11-501.2(c), states in pertinent part:

“(a) Any person who drives or is in actual physical control of a motor

vehicle upon the public highways of this State shall be deemed to have given

consent, subject to the provisions of Section 11-501.2, to a chemical test or tests

of blood, breath, or urine for the purpose of determining the content of alcohol

*** in the person’s blood if arrested *** for any offense as defined in Section 11­

501 ***. If a law enforcement officer has probable cause to believe the person

was under the influence of alcohol, *** the law enforcement officer shall request

a chemical test or tests which shall be administered at the direction of the

arresting officer.” 625 ILCS 5/11-501.1(a) (West 2014).

¶ 30 While section 11-501.2(c) provides that refusal to submit to chemical testing is

admissible in any “action or proceeding,” that is only true when testing is requested in

compliance with section 11-501.1, which requires that the officer have probable cause to believe

the defendant is under the influence of alcohol. See 625 ILCS 5/11-501.1(a), 501.2(c) (West

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2014). Because the trial court determined that Bishoff lacked probable cause to believe that

defendant was under the influence of alcohol, defendant’s refusal to submit to chemical testing

was not admissible.

¶ 31 Assuming, arguendo, that defendant’s refusal to submit to chemical testing was

admissible under section 11-501.2(c) of the Code, the trial court did not err in refusing to

consider that evidence at the suppression hearing. Evidence must be relevant to be admissible.

People v. Ross,

(2009). The only issue at the suppression hearing was

whether Bishoff had probable cause to arrest defendant for DUI. Any postarrest actions by

defendant were not and could not have been relied on by Bishoff as probable cause for arresting

defendant for DUI. Thus, the evidence was not relevant, and the trial court properly refused to

consider it.

¶ 32 III. Petition to Rescind

¶ 33 Finally, the State argues that the trial court lacked subject matter jurisdiction to grant

defendant’s petition to rescind because it appealed the trial court’s order granting defendant’s

motion to suppress before the court ruled on defendant’s petition to rescind.

¶ 34 Subject matter jurisdiction refers to the power of a court to hear and determine cases of

the general class to which the case in question belongs. People v. Castleberry,

,

¶ 12. As long as an alleged claim falls within the general class of cases that the court has the

inherent power to hear and decide, subject matter jurisdiction exists. In re Luis R.,

(2010).

¶ 35 A petition to rescind the statutory summary suspension of driving privileges presents a

justiciable matter over which the trial court has subject matter jurisdiction. People v. Guillermo,

; People v. Keegan,

(2002). Thus, the

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State’s claim that the trial court lacked subject matter jurisdiction to rule on defendant’s petition

lacks merit. See Guillermo,

.

¶ 36 In arguing that the trial court lacked jurisdiction to rule on defendant’s petition, the State

fails to acknowledge that a summary suspension hearing “is a civil proceeding, separate and

apart from the criminal hearing regarding the charge of driving while under the influence of

alcohol.” People v. Lagowski,

(1995). Statutory summary suspension

“operates without regard to the resolution of the companion DUI case.” People v. Schuld,

(1988). Summary suspension “progresses independently of the related criminal

prosecution for DUI.” People v. Meyer,

(1988). A circuit court may

not rescind a statutory summary suspension based solely on the disposition of the underlying

criminal proceedings. People v. Schaefer,

(1993); People v. Gerke,

(1988).

¶ 37 Section 2-118.1 of the Code “sets forth a comprehensive procedure for the conduct of a

prompt judicial hearing when a person seeks to rescind the statutory summary suspension of his

driving privileges.” Keegan,

. The scope of the hearing is limited to

specific issues, including the following:

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

in Section 11-501 ***; and

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

was driving *** upon a highway while under the influence of alcohol ***; 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

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test or tests [authorized under Section 11-501.1.]” 625 ILCS 5/2-118.1(b) (West

2014).

¶ 38 The scope of a court’s inquiry in a statutory summary suspension hearing is limited by

the terms of the statute. Gerke,

. Reasonable grounds for believing a person was

driving under the influence within the meaning of the summary suspension statute is

synonymous with probable cause for arrest for DUI. People v. Rush,

(2001). Therefore, a trial court may consider and rely on the same evidence for both a motion to

suppress and a petition to rescind. See

¶ 39 Here, the trial court granted defendant’s petition to rescind after finding that Bishoff

lacked probable cause to arrest defendant for DUI and after the State appealed that ruling. The

State’s appeal did not require the court to stay the rescission hearing until after the criminal

appeal was decided because defendant’s criminal DUI prosecution and summary suspension

hearing are separate and distinct proceedings. See Lagowski,

; Meyer,

. The results of one do not affect the results of the other. See Schaefer,

; Gerke,

; Schuld,

.

¶ 40 The trial court also did not err in considering evidence from the suppression hearing in

granting defendant’s petition to rescind. The issue at defendant’s suppression hearing was

whether Bishoff had probable cause to arrest defendant for DUI. The issue at the rescission

hearing was whether there were reasonable grounds for believing defendant was driving under

the influence. Because those issues are identical, the trial court could rely on evidence from the

suppression hearing to make its decision on defendant’s petition to rescind. See Rush,

.

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¶ 41 Moreover, the State waived any objection to the admission of evidence from the

suppression hearing. The failure to present a proper and timely objection constitutes a waiver of

any error. People v. Holloman,

(1970). Additionally, a party may not

complain on appeal about the admission of evidence that the party stipulated to below.

at 318­

19. Here, not only did the State fail to object to the trial court’s consideration of evidence from

the suppression hearing, but it stipulated to the admission of Bishoff’s testimony from the

suppression hearing. Thus, the State waived any alleged error. See

¶ 42 CONCLUSION

¶ 43 The judgment of the circuit court of Peoria County is affirmed.

¶ 44 Affirmed.

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