2010 ILL. APP. LEXIS 1274 (2ND DIST. 2010)
(As appearing in the Illinois State Bar Association Traffic
Laws and Courts Newsletter, March 2011, Vol. 20, No. 3)
Arresting Officer observed no erratic driving or slurred, mumbled speech. Defendant’s admission that he had consumed a beer, coupled with the Arresting Officer’s testimony that he detected the “faint” odor of alcohol emanating from the passenger compartment of defendant’s vehicle and the Arresting Officer’s observation that defendant’s eyes were “glossy”, was sufficient to justify requesting that a properly stopped motorist step out of a vehicle to perform field sobriety tests.
At the hearing on defendant’s petition to rescind statutory summary suspension, the Arresting Officer testified that he encountered defendant at a sobriety checkpoint at about 1:00 a.m. on May 2, 2009, and noticed nothing unusual about the manner in which defendant operated his vehicle. The Officer greeted defendant and asked him for his driver’s license and proof of insurance. Defendant provided both items and the Officer noted that defendant’s license was valid and his insurance was current. The Officer asked defendant where he was coming from. Defendant responded that he had been at a karaoke party at a friend’s house. The Officer noticed a “faint” odor of alcohol coming from the passenger compartment of defendant’s vehicle, and that defendant’s eyes were “glossy”. The Officer asked defendant if he had been drinking. Defendant responded that he had had one beer. The Officer asked defendant if he would step out of the car and perform field sobriety tests. Defendant stepped out of his vehicle and performed field sobriety tests. Based on defendant’s performance on the field sobriety tests, the Officer concluded that defendant was under the influence of alcohol, and arrested defendant.
Defendant refused chemical testing to determine the content of alcohol in his blood. His refusal resulted in the statutory summary suspension of his driving privileges. See 625 ILCS 5/11-501.1(d) (West 2008). Defendant appealed from the Order denying his petition to rescind the suspension.
Defendant argued that the period during which he was detained at the checkpoint for initial screening, before the Officer asked him to step out of his vehicle and perform field sobriety tests, was unreasonably long and that his detention was, therefore, unlawful.
Writing for the Court, Justice Hudson noted that in determining whether stopping motorists at a sobriety checkpoint in the absence of individualized suspicion of wrongdoing is constitutionally permissible, courts have balanced the public interest against the intrusiveness to motorists who are stopped under a particular sobriety checkpoint program. Michigan Department of State Police v. Sitz, 496 U.S.444, 110 L.Ed.2d 412, 110 S.Ct.2481 (1990). Relying on Sitz and People v. Bartley, 109 Ill.2d 273, 93 Ill. Dec. 347 (1985), defendant argued that “the length of detention at a roadblock that has been found reasonable is between fifteen to twenty seconds.” Defendant argued that, to pass constitutional muster, the “stop must be very brief as a general procedure in that the stop can be measured in a matter of seconds rather than minutes.” The Appellate Court concluded that Defendant’s reliance on these decisions was misplaced. The Court noted that in Sitz, the Supreme Court noted that the average delay for each vehicle was 25 seconds. Sitz, 496 U.S. at 448, 110 L.Ed.2d at 419, 110 S.Ct. at 2484. The Appellate Court pointed out that in Bartley, the Illinois Supreme Court noted that motorists stopped at a driver’s license checkpoint “were detained for only 15 to 20 seconds, as long as there was no need for additional questioning.” (Emphasis added.) Bartley, 109 Ill.2d at 287-288. The Appellate Court concluded that neither Sitz nor Bartley placed any arbitrary limit on how long a motorist may be detained when an officer’s observations during the initial screening warrant a further investigation.
The Appellate Court pointed out that the Sitz court was careful to note that the case involved “only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers.” Sitz, 496 U.S. at 450-51, 110 L. Ed. 2d at 420, 110 S.Ct. at 2485. The Sitz Court added that “[d]etention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.” Sitz, 496 U.S. at 451, 110 L.Ed.2d at 420, 110 S.Ct. at 2485. Relying on LaFave, “the leading fourth amendment scholar”, the Appellate Court noted that LaFave has stated that “the officer [conducting the sobriety checkpoint stop] should have an articulable suspicion that the motorist is intoxicated before detaining the motorist for an extended [DUI] investigation.” 5 W. LaFave, Search and Seizure § 10.8(d), at 378 (4th ed. 2004), quoting Note, 71 Geo. L.J. 1457, 1486 (1983). The Appellate Court reasoned that when such a suspicion exists, the detention is tantamount to an investigatory detention under Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S. Ct. 1868 (1968), which held that a police officer may effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and articulable facts, that the person detained has committed or is about to commit a crime.
In the matter at bar, defendant argued that the Officer unreasonably prolonged his seizure. Specifically, defendant challenged the length of the interval from the moment he entered the checkpoint until the Officer asked him to exit his vehicle to perform field sobriety tests. The Officer testified that he could not accurately recall how much time elapsed. According to the Officer’s best recollection, he most likely detained defendant less than five minutes before he asked defendant to submit to field sobriety testing. The Appellate Court concluded that there was nothing in the record to suggest that the Officer engaged in any conduct that was not reasonably related to the objective of confirming or dispelling the suspicion that defendant might be impaired as a result of consuming alcohol. Although defendant protested that the Officer’s “vague estimation of time cannot possibly render a roadblock stop “brief”, the Appellate Court maintained that it was not the State’s burden to establish the brevity of the stop. Rather, according to the Court, it was defendant’s burden to establish that the stop was unreasonably prolonged. People v. Paige, 385 Ill.App.3d 486, 324 Ill. Dec. 803 (3rd Dist. 2008). The Appellate Court found that defendant had failed to establish that the Officer unreasonably prolonged the seizure.
Defendant also challenged the ruling of the trial court that the Officer did not have a reasonable, articulable suspicion that defendant was under the influence of alcohol. Defendant first argued that “glossy” (as opposed to “glassy”) eyes are not a sign of intoxication. The Appellate Court noted that the trial court, however, found that, in its experience, the terms are sometimes used interchangeably. The Appellate Court cited case law to support the trial court’s observation. In People v. Hood, 213 Ill.2d 244, 290 Ill.Dec.207 (2004), one witness described the defendant’s eyes as “glassy and bloodshot” (Hood, 213 Ill.2d at 248), while another described his eyes as “bloodshot” and “glossy”. The Appellate Court noted that the Hood court, however, held that the evidence was sufficient to sustain the defendant’s conviction of reckless homicide; the Hood court indicated that both witnesses had testified that the defendant’s eyes were “glassy and bloodshot.” Hood, 213 Ill.2d at 263.
Defendant further argued that the faint odor of alcohol coming from the passenger compartment of his vehicle, and his admission to the Arresting Officer that he had one beer, indicated only that he had consumed alcohol, and not that he was under the influence of alcohol. Because driving after consuming alcohol is not illegal in itself (see People v. Brodeur, 189 Ill. App.3d 936, 137 Ill. Dec. 292 (2nd Dist. 1989), defendant maintained that the Arresting Officer had no basis for administering field sobriety tests. The Appellate Court acknowledged that it was not aware of any Illinois decisions that addressed the propriety of administering field sobriety tests to a motorist stopped at a sobriety checkpoint under circumstances similar to those in the matter at bar. The Appellate Court noted, however, that it had approved the administration of field sobriety tests based on similar indicia of intoxication following a stop for a routine traffic violation. In Village of Lincolnshire v. Kelly, 389 Ill.App.3d 881, 329 Ill. Dec. 849 (2nd Dist. 2009), the motorist was stopped for speeding. During the officer’s initial conversation with the motorist, she exhibited no problems with her speech and was able to comply with the officer’s orders without any problems. In that case, the officer, however, noted a “strong” odor of alcohol and the motorist admitted having one glass of wine. The officer asked the motorist to exit the car and perform field sobriety tests. Based on this evidence, the Appellate Court determined that the officer had a reasonable articulable suspicion that the motorist had committed the offense of DUI, and thus the Officer’s administration of the field sobriety tests was justified.
The Appellate Court reviewed cases from other jurisdictions for instruction regarding the circumstances under which the administration of field sobriety tests to a motorist stopped at a sobriety checkpoint is warranted. In Commonwealth v. Bazinet, 76 Mass.App.Ct. 908, 924 N.E.2d 755 (2010), the court held that the “mere odor of alcohol” gives rise to reasonable suspicion warranting further detention of a motorist stopped at a sobriety checkpoint. The Bazinet court noted that the Supreme Judicial Court of Massachusetts had upheld the constitutionality of a checkpoint procedure under which a motorist would be subjected to further screening after the initial stop if the screening officer observed ” ‘any articulable sign of possible intoxication.’ ” Relying further on Commonwealth v. Murphy, 454 Mass. at 320, 328, 910 N.E.2d at 284, 289, the Bazinet Court noted that “the Murphy court said that the ‘odor of alcohol’ was one of the ‘clues of impaired operation’ for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation.”
In People v. Rizzo, 243 Mich.App. 151, 622 N.W.2d 319 (2000), the court held that a strong odor of an intoxicant on a motorist’s breath, standing alone, is a sufficient basis for detaining the motorist to conduct field sobriety testing. Although the Rizzo court agreed with the defendant’s argument that the odor of alcohol on her breath did not necessarily mean that her blood alcohol content exceeded the legal limit, it held that in order to detain a motorist for field sobriety tests, the officer “merely must have a reasonable suspicion that the motorist has consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle.”
In Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990), a police officer approached a parked vehicle occupied by the defendant and a woman, and began speaking with the defendant. The officer smelled alcohol on the defendant’s breath, and asked the defendant to exit the vehicle. The defendant stumbled and was unable to perform a field sobriety test. The Thompson court rejected the defendant’s argument that an unlawful seizure occurred when the officer approached his vehicle. The court explained that the encounter was consensual, and stated:
“The ‘seizure’ of [the defendant] occurred only after the officer addressed [the defendant] and noticed the odor of alcohol after [the defendant] volunteered that he had been at a club. Then, the officer had a reasonable suspicion that [the defendant] had committed or was about to commit a DWI and properly asked him to exit his car.”
The Appellate Court acknowledged that courts in Kansas and Ohio had reached the opposite conclusion: City of Hutchinson v. Davenport, 30 Kan.App.2d 1097, 54 P.3d 532 (2002), where the court ruled that the smell of alcohol on defendant’s breath while he was at a police station combined with his false statement that he was walking and not driving home, did not give rise to a reasonable suspicion that defendant was intoxicated and too impaired to drive); State v. Dixon, No. 2000-CA-30 (Ohio App. December 1, 2000) (unpublished), where the court ruled that the mere detection of an odor of alcohol, unaccompanied by any basis, drawn from the officer’s experience or expertise, for correlating that odor with a level of intoxication that would likely impair the subject’s driving ability, is not enough to establish that the subject was driving under the influence.
The Appellate Court chose to accept and follow the decisions from Massachusetts, Michigan, and Arkansas, believing that those cases “reflect the better view”. The Appellate Court concluded that defendant’s admission that he had consumed a beer, together with the officer’s testimony that he detected the odor of alcohol emanating from the passenger compartment of defendant’s vehicle and the officer’s observation that defendant’s eyes were “glossy”, “was sufficient to justify the relatively minor intrusion of requesting that a properly stopped motorist step out of a vehicle to perform field sobriety tests”. Citing language from Village of Plainfield v. Anderson, 304 Ill.App.3d 338, 342, 237 Ill. Dec. 507 (3rd Dist. 1999), the Appellate Court stated: ” ‘Indeed, an officer faced with these facts would be derelict in his duties if he chose not to conduct a further investigation’ “.
The Court found that the circumstances were sufficient to create a reasonable articulable suspicion that defendant was driving under the influence of alcohol, and affirmed the judgment of the circuit court of Du Page County.
David B. Franks
Lake in the Hills, IL