People v. Tatera, 2018 IL App (2d) 160207 (May). Episode 498 (Duration 7:21)
9th DUI for this guy; 8 years seems about right.
This is defendant’s 9th DUI. He got 8 years.
There were no fields and no blow but the video showed him all dazed and confused and not following instructions. Defendant argues that the trial court abused its discretion by allowing the jury to see a portion of the administration of the HGN test in the arrest video.
Defendant argues that, because the State agreed that the HGN test was improperly conducted, the jury should have been precluded from seeing any footage of the administration of the test.
What The Jury Saw
The trial court, over defendant’s objections, admitted a portion of the recording because it showed defendant disobeying the officer’s instructions to keep his hands at his sides and out of his pockets.
Defendant contends that, under People v. McKown, 236 Ill. 2d 278, 306 (2010), the recording was completely inadmissible.
People v. McKown
In McKown, the supreme court held that, for the results of an HGN test to be admitted at trial, a proper foundation must be laid, including the officer’s proper training and administration of the test. The supreme court held that the administration of the HGN test in that case did not meet the standards that the court had enunciated, so the admission of any testimony concerning the test and its results was reversible error.
Here, defendant argues that the officer did not correctly perform the HGN test, so the admission of the recording was likewise erroneous, and that, given the closeness of the evidence, the error cannot be deemed harmless beyond a reasonable doubt.
In McKown, by contrast, the officer testified about the test and the conclusions he drew from the defendant’s performance. Here, Kresen did not testify at all about the test—either his administration of the test or defendant’s performance of the test; likewise, the State made absolutely no argument about the test.
Thus, in this respect, McKown is significantly distinguishable.
The question remains, however, whether the jury should have observed the portion of the recording admitted to illustrate defendant’s inability or refusal to comply with Kresen’s instructions. See People v. King, 2014 IL App (2d) 130461. We then held that “a motorist’s failure to follow directions on a particular field sobriety test does not lose all relevance simply because the test might not have been designed for the precise purpose of gauging the ability to follow directions.” Id. ¶ 12.
Thus, we determined that our holding did not imply that, where the State is aware that the HGN test was not conducted properly and, thus, that the results were inadmissible, the officer’s otherwise relevant and material observations could or should have been characterized as part of the administration of an HGN or other field sobriety test.
That the defendant did not follow the officer’s instructions was separate and apart from any scientific evidence that would have been associated with the HGN test (and which neither the officer nor the State commented upon).
In This Case…
Here, the State conceded that the HGN test was improperly conducted.
Unlike in King, the officer did not even mention the HGN test; rather, he testified that defendant did not follow his instructions, and the portion of the recording of the HGN test admitted and published to the jury illustrated defendant’s failure to follow those instructions.
Moreover, the State did not mention or make any argument regarding the HGN test; rather, the State focused solely on defendant’s inability to follow the officer’s instructions during the portion of the recording that was published to the jury. This was proper under King, and it did not violate the requirements of McKown, because the admitted portion of the recording and all of the testimony and argument dealt only with defendant’s failure to follow instructions and there was no mention whatsoever of the HGN test.
Accordingly, we hold that the portion of the recording containing a part of the administration of the HGN test was properly admitted and published to the jury.
Defendant also argues that the trial court erred in passing sentence by double-counting his previous convictions, both as a qualifying factor for a Class X offense and as an aggravating factor to increase the length of his sentence.
Defendant next contends that the trial court improperly used his previous convictions of DUI both for his eligibility for a Class X sentence and as aggravating factors to justify the eight-year sentence.
It has long been established that the fact of a defendant’s prior convictions may determine his or her eligibility for a Class X sentence, but in determining the length of the defendant’s sentence the trial court remains free to consider the nature and circumstances of those prior convictions along with all of the other factors in mitigation and aggravation. People v. Thomas, 171 Ill. 2d 207, 227-28 (1996). See also People v. Morrow, 2014 IL App (2d) 130718, ¶¶ 19-20.
Here, the trial court considered that defendant had not only the five DUI convictions necessary to qualify for Class X sentencing but also four additional DUI convictions (nine in total) in imposing a sentence of eight years—two years above the minimum sentence.
Although the trial court was terse in its explanation, the nine convictions illustrated defendant’s recidivism, his failure to rehabilitate, and the significant possibility of harm each and every time defendant got behind the wheel while under the influence of alcohol. We note that the trial court’s discussion with defendant following his statement in allocution touched on these factors, and we consider the sentencing hearing as a whole.
Defendant’s double enhancement argument is without merit. For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.
- Illinois DUI Resource Page
- Episode 347 – People v. Motzko, 2017 IL App (3d) 160154 (April) (Officer’s Inaccurate Reliance On HGN Throws His Credibility Into Question)
- Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI & Defendant Couldn’t Follow Directions During The HGN)