2023 IL App (1st) 231801B

SECOND DIVISION December 8, 2023

No. 1-23-1801B ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

) PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff -Appellee, ) Cook County ) v. ) 23 C 33021401 ) ALBA HERRERA, ) Honorable ) Marc W. Martin, Defendant-Appellant. ) Judge Presiding ) _____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice McBride concurred in the judgment and opinion.

OPINION

¶1 In two public acts, the legislature passed the Safety, Accountability, Fairness and Equity-

Today Act (SAFE-T Act), which “comprehensively overhauled many aspects of the state’s

criminal justice system.” Rowe v. Raoul,

. Among the many changes, the Act

“dismantled and rebuilt Illinois’s statutory framework for pretrial release of criminal

defendants.”

¶2 Most dramatic was the Act’s abolition of monetary bail, which the General Assembly

replaced with a default rule that all persons charged with an offense would be eligible for pretrial

release. Id. at ¶ 5; 725 ILCS 5/110-2(a) (West 2022). But the Act also contained provisions

allowing the trial court to impose conditions on that release or, in specific circumstances, deny it No. 1-23-1801B

altogether. See 725 ILCS 5/110-6.1, 110-10 (West 2022).

¶3 After surviving a constitutional challenge, the pretrial release provisions of the Act took

effect on September 18, 2023. Rowe,

. Defendant here, Alba Herrera, was

arrested for driving a car under the influence of alcohol before the Act went into effect. If

convicted, it would be her fourth DUI conviction. The trial court originally set her bond at

$50,000 “D,” requiring her (or someone on her behalf) to deposit 10 percent of the total bond

($5,000) to secure her release. If she did post the money and was released from custody, the

court ordered her to be placed on electronic monitoring.

¶4 After the Act went into effect, defendant petitioned the court to be released under the new

statutory framework. After a hearing, the court concluded that defendant was a danger to the

community, and that no set of conditions could mitigate that danger such that she could be

released. The court thus ordered defendant detained.

¶5 Defendant appeals, arguing that the court erred in concluding that no set of pretrial

release conditions could have mitigated the danger defendant posed. For the reasons that follow,

we vacate and remand for a new detention hearing.

¶6 BACKGROUND

¶7 Defendant was arrested in July 2023, before the amendments to the pretrial detention

system went into effect. At that time, the circuit court ordered defendant held on a $50,000 “D”

bond, meaning she would need to post $5,000 to be released. The court also ordered that, if she

posted the bond and was released, defendant would be placed on electronic monitoring.

¶8 After our supreme court ruled in Rowe and the new pretrial system took effect, defendant

petitioned the court to reconsider her release. The circuit court then held a new hearing under the

amended pretrial detention statute.

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¶9 At that hearing, the State proffered that, on July 23, 2023, at around 12:30 pm in the

afternoon, police responded to a report of a reckless driver in the area of Irving Park Road and

Scott Street in Schiller Park. Police eventually pulled over a red Nissan with the defendant

behind the wheel. After the defendant pulled over, she stopped her car, then reversed and backed

into the police cruiser that had curbed her.

¶ 10 Another officer arrived on the scene and met with defendant. That officer noticed she had

bloodshot, glossy eyes and a “strong odor of alcohol” coming from her breath. When the officer

asked defendant for her license, she refused to give him one. At the time, she did not have a valid

driver’s license.

¶ 11 The officer asked defendant to step out of the car and perform roadside sobriety tests.

Officers noticed that defendant could not keep her balance when she walked. After taking the

tests, police arrested her and took her back to the Schiller Park police department. There, she

took a breathalyzer test, which registered a blood alcohol content of .250.

¶ 12 The State charged defendant with aggravated driving under the influence based on her

criminal background, which included three prior convictions for DUI, two in 2017 and one in

2019. Because of her background, the aggravated DUI charge was enhanced to a non-

probationable class 2 felony, with a minimum sentence of three years in prison.

¶ 13 Defense counsel proffered that his client was 65 years old and suffered from mental

health and substance abuse issues; keeping her in custody was “not the right thing to do.”

Counsel suggested the court place her on a Secure Continuous Remote Alcohol Monitor

(SCRAM) bracelet with “zero tolerance” for any alcohol use as a condition of her release.

However, the trial court quickly stated, “I don’t have the authority to do that under the [Pretrial

Fairness Act].”

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¶ 14 Defense counsel then suggested his client be placed on electronic home monitoring with

no allowance for movement, including no driving whatsoever. He reiterated his client was of

limited financial means—which is why she was never able to post the $5,000 original cash bond.

Her criminal history was without violence, and counsel believed that, with a form of electronic

monitoring and other conditions, any danger defendant posed could be mitigated.

¶ 15 The court concluded that the State had shown, by clear and convincing evidence, that the

“proof is evident and the presumption great” that the defendant committed the charged offense,

that she posed a real and present threat to the safety of the community because she continued to

drink and drive even without a license, and that there were no conditions of release that could

protect the safety of the community. Responding to defendant’s request for electronic

monitoring, the court said it “could not find that electronic home monitoring would be the magic

wand that all of a sudden [would] allow her to conform to the law[.]”

¶ 16 The court ordered defendant detained and revoked any previous pretrial release

conditions. This appeal follows.

¶ 17 ANALYSIS

¶ 18 Under the Act, “[a]ll persons charged with an offense shall be eligible for pretrial release

before conviction.” 725 ILCS 5/110-2(a) (West 2022). But in certain limited circumstances, the

court may detain the defendant either because (1) the defendant poses a real and present threat to

the safety of any person or persons or the community; or (2) the defendant has a high likelihood

of willful flight to avoid prosecution. 725 ILCS 5/110-6.1(a) (West 2022).

¶ 19 To detain a defendant before trial, the defendant must first be charged with an offense for

which pretrial release may be denied, as specified in the statute. 725 ILCS 5/110-6.1(a)(1)-(8)

(West 2022). The State must then file a verified petition asking the court to detain the defendant.

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§ 110-6.1(a). The petition must state the grounds upon which the State believes the defendant

should be denied release, including specific and articulable facts showing the real and present

threat to the safety of any person or person or the community, or specific and articulable facts as

to why the defendant is a flight risk. Id.

¶ 20 To overcome the presumption that the defendant will be released, the State bears the

burden of proving, by clear and convincing evidence, that: (1) the proof is evident or the

presumption great that the defendant has committed an offense that qualifies for pretrial

detention; (2) the defendant poses a real and present threat to the safety or any person or person

in the community based on the specific and articulable facts of the case; and (3) no condition or

combination of conditions of pretrial release can mitigate the real and present threat to the safety

of any person or persons in the community, based on the specific and articulable facts of the

case. Id. § 110-6.1(e).

¶ 21 Defendant here does not challenge that she has been charged with a detention-qualifying

offense. She does not deny that the proof is evident that she committed the offense. Nor does she

challenge the finding that she poses a danger to the community. She challenges only the court’s

third requisite finding—that no condition or combination of conditions of release could mitigate

her danger to the community.

¶ 22 We would ordinarily begin by identifying the standard of review. Under the previous,

longstanding regime for bond hearings and appeals therefrom, we reviewed bail and bond

decisions for an abuse of discretion. See People v. Simmons,

, ¶ 9. Our

new regime is obviously markedly different in many respects, so we cannot rely on decisions

under the previous version. Still, a decision from a sister district embraced that same abuse-of-

discretion standard for reviewing these factual findings, observing that “the Act neither mandates

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nor suggests a different standard or review” from that under the previous system. People v.

Inman,

.

¶ 23 A decision from yet another district held that the court’s findings on the three

prerequisites to detention are findings of fact that should be reviewed under the manifest-weight

standard. See People v. Gibbs,

. Yet that decision immediately

followed up, while noting that the question of dangerousness involves the consideration of

multiple statutory factors (see 725 ILCS 5/110-6.1(g) (West 2022)), with the statement that

“whether the trial court properly considered one or more of the aforementioned factors in

determining dangerousness are reviewed for an abuse of discretion.” Gibbs,

.

¶ 24 We expect there is much left to be said about the standard of review. But this is not the

case to resolve it. For the reasons stated below, we find that the trial court committed legal error.

And legal error is actionable under even the most deferential standard of review. Seymour v.

Collins,

; Moore v. Mandell,

; People v.

Hudson,

; North Spaulding Condominium Ass’n v. Cavanaugh,

.

¶ 25 At the detention hearing, after some initial discussion about the nature of the offense,

defense counsel led off his argument that certain pretrial release conditions would mitigate the

danger posed by defendant by referencing the use of SCRAM technology, though the court

quickly disposed of that option:

“[Defense Counsel]: My client is 65 years old. She has no violence in her history

whatsoever. I did have several conversations with her, your Honor. She does suffer from

mental illness. I believe that this is a contributing factor to these close-in-time DUIs. She

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was the victim of a very violent offense. Your Honor, I believe that my client could be

placed on a SCRAM bracelet where there’s zero tolerance.

THE COURT: I don’t have the authority to do that under the PFA.

[Defense Counsel]: Understood, Judge.”

¶ 26 Defense counsel next argued that defendant could be placed on electronic home

monitoring, a pretrial release condition the previous bond court judge had set. But the court was

not moved:

“[T]he Court finds that there are no less restrictive conditions other than detention that

would protect the safety of the community. Again, not able to conform her conduct to the

law and in the process putting the community’s safety at risk. The finding of the

Secretary of State that she does not have a valid driver’s license did not deter her from

driving; did not deter her from drinking and driving in the past. And based on what the

State has alleged today and the Court could not find that electronic home monitoring

would be the magic wand that all of a sudden allow her to conform her conduct to the law

and protect the community in the process, I’m not willing to take that chance and find

that the State has met its clear and convincing burden.”

The court thus ordered defendant to be detained.

¶ 27 In his notice of appeal, defendant argued that the State failed to prove by clear and

convincing evidence that no set of conditions could mitigate the danger posed by defendant:

“If the defendant is placed on electronic home monitoring, her movement would be

significantly restricted and would insure that [she] remain at home and not driving. The

defendant could be placed on a SCRAM bracelet that would monitor alcohol

consumption and the court would be immediately notified of any violations. The

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defendant could be ordered to be placed in an in-patient treatment facility. The State did

not present facts that the defendant is a flight risk, has previous bond forfeitures or any

other reason why she would not comply with the possible conditions of pretrial release.”

¶ 28 We agree with defendant that, contrary to the court’s statement in open court, the court

does have the authority to order, as a condition of pretrial release, SCRAM monitoring, which

utilizes “what is commonly known as a ‘SCRAM bracelet,’ although it is really an anklet.”

People v. Kastman,

, aff’d,

.

¶ 29 As was true before the SAFE-T Act and its related legislation, and as remains true

following those acts, the court may impose such pretrial release conditions as placing a

defendant “under direct supervision of the Pretrial Services Agency *** in a pretrial home

supervision capacity with or without the use of an approved electronic monitoring device subject

to Article 8A of Chapter V of the Unified Code of Corrections.” 725 ILCS 5/110-10(b)(5) (West

2022); compare 725 ILCS 5/110-10(b)(14) (West 2020) (pre-SAFE-T Act provision).

¶ 30 Chapter V, Article 8A of the Corrections Code, in turn, defines “approved electronic

monitoring device” as a device that “is primarily intended to record or transmit information as to

the defendant’s presence or nonpresence in the home, consumption of alcohol, consumption of

drugs, location as determined through GPS, cellular triangulation, Wi-Fi, or other electronic

means.” (Emphasis added.) 730 ILCS 5/5-8A-2(A) (West 2022).

¶ 31 SCRAM technology has been used as a condition of release in various settings. See, e.g.,

People v. Kastman,

(SCRAM monitoring as condition of release of sexually

dangerous person who suffered from alcoholism); People v. Hebert,

-

U, ¶¶ 5-6 (SCRAM monitoring as condition of release on bond and on probation); People v.

Shiner,

(condition of bond); People v. Rubini, 2021 IL App

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(2d) 200064-U, ¶ 35 (noting testimony that “SCRAM bracelets test for alcohol every half hour

and can detect tampering.”).

¶ 32 Based on its comments, the trial court appeared to be under the mistaken impression that

it could not, as a condition of pretrial release, require that the defendant wear a SCRAM bracelet

(or similar alcohol-monitoring device), when in fact the Code permits it. The court could also

require that defendant install “an ignition interlock device” on her vehicle. 7725 ILCS 5/110-

10(b)(6) (West 2022). The court could impose any “other reasonable conditions” on the

defendant’s release (id. § 110-10(b)(9)), including regular alcohol testing and requiring

defendant to participate in rehabilitative services to address her struggles with alcohol.

¶ 33 So when the court found that the State proved, by clear and convincing evidence, that no

set of conditions could mitigate the danger posed by defendant’s tendency to drive while

intoxicated, the court did not take into account the full constellation of conditions at its

disposal—or at least not one of the most obvious ones, SCRAM monitoring.

¶ 34 Or at least that is the best we can discern from this record. Though the court couched its

comments in terms of lacking “authority *** under the PFA,” which is incorrect, perhaps the

court meant that SCRAM monitoring was not available within the county at present. If such

were the case, it would be essential for us to know as much on review.

¶ 35 That raises a critical point we must emphasize in the early stages of this new mode of

detention hearings: We recognize that not every jurisdiction will have every pretrial resource

permitted under the Code. If a defendant suggests a release condition as a potential tool to

mitigate the danger a defendant poses, and it so happens that this resource is not available within

that jurisdiction, it is imperative that courts (and prosecutors) make a record of the fact. Here, for

example, when defendant raised the option of SCRAM monitoring, if it is the case that the

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county pretrial services cannot presently provide that resource for whatever reason, it is critical

that this fact be made a part of the record for the reviewing court.

¶ 36 In any event, given the record before us, we do not reach the merits of the question of

adequate pretrial release conditions under subsection (e)(3) of section 110-6.1. By no means are

we suggesting that the trial court should reach a different conclusion on remand. But the court

should at least consider the option of SCRAM monitoring on remand in the mix of possible

pretrial release conditions or make a record explaining why that resource is not available.

¶ 37 The judgment of the circuit court is vacated. The cause is remanded for a new detention

hearing. In the interim, defendant shall remain detained subject to her previous bond and other

conditions.

¶ 38 Vacated and remanded.

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The People of the State of Illinois v. Alba Herrera, 2023 IL App (1st) 231801B

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23-C- 33021401; the Hon. Marc W. Martin, Judge, presiding.

Attorneys Nathaniel Bernard, of Bernard Law, P.C., of Bensenville, for for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney (Douglas Harvath, Assistant for State’s Attorney, of counsel), of Chicago, for appellee. Appellee:

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