People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (Duration 6:18)

Defendant wins his motion to suppress in this DUI arrest in part because the officer doesn’t understand HGN.

Charges

Defendant was involved in single-vehicle motorcycle accident and was subsequently charged with citations for improper lane usage (625 ILCS 5/11-709(a)), failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a)), and DUI (625 ILCS 5/11-501(a)(2)).

Facts

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

When the officer arrived, he saw a motorcycle lying on its side and defendant sitting on the ground being treated by medical personnel.

The officer spoke to a witness, 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 witness also told the officer that he could smell alcohol on defendant’s breath. The officer did not question the security guard further.

The officer spoke to defendant while he was being treated at the scene.

The officer asked defendant if he had consumed any alcohol. Defendant initially stated that he had a 12-ounce beer and then corrected himself and said he had a 20-ounce beer. The officer admitted that he had no record or recollection of defendant having slurred speech.

HGN

At the hospital, the officer performed a Horizontal Gaze Nystagmus (HGN) test on defendant.

The officer 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 the officer that he was blind in his right eye. The officer did not remember asking defendant if he struck his head during the accident but admitted that defendant may have sustained a head injury.

The officer did not take that into account when administering the HGN test to defendant.

He said 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.”

The officer 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].”

In his report, the officer 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.

Arrest Factors

At the hearing, the officer 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. The officer also considered that defendant was likely coming from a bar when the accident happened based on defendant’s statement that he had been “downtown.”

The officer testified that he also considered the accident and the statements by the security guard when he arrested defendant for DUI.

Trial Court Ruling

The trial court explained that the officer’s testimony that HGN testing can determine the level of intoxication was wrong under People v. McKown, 236 Ill. 2d 278 (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 the officer’s failure to investigate whether defendant 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.

Law

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 People v. Boomer, 325 Ill. App. 3d 206, 209 (2001) (officer lacked probable cause to arrest defendant for DUI where defendant was involved in accident, admitted drinking, and had the odor of alcoholic beverage on his breath).

Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. See People v. O’Brien, 227 Ill. App. 3d 302, 307 (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.” People v. Day, 2016 IL App (3d) 150852, ¶ 38 (probable cause must rise to a level higher than mere suspicion.)

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.

Limits of HGN

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, 236 Ill. 2d at 306.

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.

Analysis

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.

There was no testimony or evidence that any of these factors were present to support the officer’s assumption that defendant was driving under the influence.

The officer testified that he also considered the accident and the testimony of the security guard in determining that defendant was impaired. However, the officer 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.

Additionally, as explained by the supreme court in McKown, HGN testing is an indicator of alcohol consumption but is not an indicator of a specific level of impairment. By stating that HGN testing was the most reliable indicator of whether someone has a blood alcohol level of .08, the officer showed that he was not properly trained to understand and interpret the results of HGN testing.

Holding

The trial court did not err in giving little to no weight to the officer’s determination that defendant failed the HGN test because the State failed to show that the officer possessed the expertise to properly understand the results of HGN testing.

At the suppression hearing, the trial court stated that it questioned the officer’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.

Because the officer 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.