2014 IL App (2d) 130461
No. 2-13-0461
Opinion filed November 17, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) Nos. 09-DT-78
) 09-TR-3264
)
DAVID M. KING, ) Honorable
) John H. Young,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Jorgensen and Birkett concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Boone County, defendant, David M. King,
was found guilty of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)
(West 2008)) and causing the tires of his vehicle to squeal (625 ILCS 5/11-505 (West 2008)).
For DUI, the trial court sentenced defendant to 12 months’ conditional discharge and ordered
him to serve five days in the Boone County jail and pay, inter alia, a fine of $1,300. The trial
court placed defendant on court supervision for causing his vehicle’s tires to squeal. Defendant
argues on appeal that the trial court erred in admitting testimony concerning the arresting
officer’s attempt to administer the horizontal gaze nystagmus (HGN) test to defendant.
2014 IL App (2d) 130461
Defendant also argues that he is entitled to monetary credit toward his fines for time spent in
custody prior to sentencing. We affirm as modified.
¶2 At trial, Chris Washburn, an officer with the Belvidere police department, testified that,
in the early morning hours of March 21, 2009, he observed a silver Chevy van stopped on
northbound Appleton Road at its intersection with Lincoln Avenue. There was a traffic signal at
that intersection. Washburn was traveling south on Appleton Road, approaching the intersection.
The traffic signal was green for southbound traffic and Washburn believed that it would have
been green for northbound traffic as well. Washburn slowed down in an effort to determine why
the van was not moving. Washburn then saw the van lurch forward, and he heard its tires squeal.
The van turned right onto Lincoln Avenue. Washburn followed the van as it proceeded a short
distance on Lincoln Avenue, turned left onto Whitman Street, and pulled into a residential
driveway. Washburn parked his vehicle, activated the emergency lights, and walked up to the
van. The parties stipulated that defendant was driving the van at the time.
¶3 According to Washburn, defendant exited the vehicle and “took a couple of steps that
were unsteady.” Washburn also noticed that defendant’s eyes were red, his eyelids were
drooped, and his speech was very slurred. Washburn asked defendant to produce his driver’s
license and proof of insurance. Defendant complied. Washburn did not detect the odor of
alcohol emanating from defendant. He noted, however, that he was suffering from allergy
symptoms that prevented him from smelling anything. Washburn asked defendant why he had
caused the tires on his vehicle to squeal. Defendant responded that the vehicle was peppier than
the truck that he usually drove. Defendant stated that he had just proposed to his girlfriend. He
also indicated that he had consumed a couple of beers but was not drunk.
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¶4 Washburn testified that he had been trained to administer field sobriety tests and that he
was also certified to train other officers to administer the tests. Washburn asked defendant to
perform field sobriety tests and defendant agreed. Washburn initially conducted the HGN test.
He instructed defendant to look at his (Washburn’s) finger and follow it with his eyes without
moving his head. According to Washburn, defendant moved his head while following
Washburn’s finger. The prosecutor asked Washburn what he noticed while holding his finger
out to the side of defendant’s head. As Washburn began to answer, defendant’s attorney
objected that there was “no foundation laid for the administration of this test.” The trial court
overruled the objection, but directed the prosecutor to rephrase the question. The prosecutor then
asked whether defendant was following Washburn’s instructions when Washburn held his finger
to the side of defendant’s head. Washburn responded that defendant initially followed his finger
without moving his head, but then looked straight at Washburn. The next time Washburn moved
his finger, defendant moved his head.
¶5 Washburn administered two other field sobriety tests: the walk-and-turn test and the one-
leg-stand test. Washburn instructed defendant that, for the walk-and-turn test, he was to place
his left foot behind his right, take nine heel-to-toe steps with his arms at his sides, turn around,
and take nine heel-to-toe steps back. Washburn demonstrated to defendant how he should walk
and turn. Washburn instructed defendant to stand heel-to-toe with his left foot behind his right
and his arms at his sides during the demonstration. Washburn testified that defendant raised his
arms slightly and did not maintain the heel-to-toe stance. When defendant actually performed
the test, he lost his balance twice while walking. Each time, he raised one of his arms more than
six inches away from his body.
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¶6 For the one-leg-stand test, Washburn instructed defendant initially to stand with his heels
and toes touching and his hands by his sides, to raise one foot about six inches off of the ground,
to keep his foot parallel to the ground, and to count out loud until told to stop. Defendant raised
his foot, placed it back on the ground, and then raised it again, at which point he began swaying
and started to hop. Defendant leaned over to one side and raised one arm more than six inches
from his side. Defendant then placed his foot on the ground and stated that he could not perform
the test.
¶7 After Washburn testified about defendant’s attempt to perform the one-leg-stand test,
defendant’s attorney asked the trial court “to disregard the testimony of the officer regarding
[defendant] supposedly moving his head during the eye test because that is only relevant in the
context of a [HGN] test.” Defense counsel argued that “[s]ince there was no proper foundation
laid for the administration of a [HGN] test because there was no other testimony regarding the
HGN test, the alleged movement of [defendant’s] head is irrelevant.” The trial court overruled
the objection, stating that the prosecutor “didn’t go into HGN.”
¶8 Washburn’s squad car was equipped with a video camera, which recorded Washburn’s
encounter with defendant. The recording was played for the jury and admitted into evidence.
Washburn testified that it was his opinion that defendant was under the influence of alcohol and
was not fit to drive a motor vehicle at the time in question. Washburn acknowledged that, other
than squealing his tires, defendant did not violate any traffic law and did not drive erratically.
¶9 Defendant contends that, because there was no foundation for testimony concerning the
administration of the HGN test, the trial court erred in allowing Washburn to testify on that
subject. Our supreme court has provided the following useful summary of the principles and
procedures involved in HGN testing:
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“The HGN test purportedly measures nystagmus, which has been defined as an
abnormal and involuntary rapid movement of the eyeballs up and down, or more
commonly, side to side. [Citation.] Many people will exhibit some nystagmus, or
jerking, as their eyes track to the extreme side. However, with an intoxicated person, the
onset of the nystagmus, or jerking of the eyeball, occurs after fewer degrees of lateral
deviation from center, and the jerking is more pronounced at extreme angles. While
nystagmus is an indication of alcoholic consumption, it is also a symptom of many other
ailments. [Citation.]
Because alcohol consumption can cause nystagmus, police officers have been
trained to check a person’s eye movements when attempting to determine if a driver has
been driving while impaired by alcohol. The National Highway Traffic Safety
Association’s (NHTSA) DWI Detection and Standardized Field Sobriety Testing
Instructor Manual sets forth the procedure for administering an HGN test in the field.
First, the officer is required to ask the subject if he or she wears contact lenses or has any
medical impairment that would affect the test results or prohibit the subject from taking
the test. If the subject claims to wear hard contacts, or have natural nystagmus or any
other condition that may affect the test results, the officer should note the condition but
still administer the test if possible. [Citation.]
After these preliminary questions, the officer asks the subject to focus on an
object, such as a pen, held just above eye level, about 12 to 15 inches from the subject’s
nose, and to follow the object as the officer gradually moves it from side to side.
While conducting the test, the officer looks for six nystagmus ‘clues,’ three in
each eye, that, according to the NHTSA Manual, indicate impairment. If four or more
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2014 IL App (2d) 130461
clues are present, the subject is determined to have failed the test and be impaired. The
clues are (1) lack of smooth pursuit; (2) distinct nystagmus at maximum deviation,
meaning any nystagmus exhibited when the eyeball is looking as far to the side as
possible; and (3) angle of onset of nystagmus prior to 45 degrees, meaning any
nystagmus that occurs before the object reaches a point that the officer determines to be
45 degrees from the center of the suspect’s face. No measuring apparatus is used in the
45-degree test. The officer is then instructed to have the subject perform the walk-and-
turn field-sobriety test and the one-leg-stand field-sobriety test, compile the results of the
three tests, and then make the decision whether to arrest the subject.” People v. McKown,
226 Ill. 2d 245, 248-50 (2007) (McKown I).
¶ 10 In McKown I, our supreme court held that testimony concerning the administration and
results of the HGN test was scientific evidence, the admissibility of which depended upon a
threshold showing, under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that “HGN testing
had been generally accepted as a reliable indicator of alcohol impairment” (McKown I, 226 Ill.
2d at 247). The McKown I court remanded the case to the trial court for a hearing to determine
whether HGN testing satisfied that standard (id. at 276-77), but retained jurisdiction to review
the trial court’s finding and to determine whether the admission of HGN evidence at the
defendant’s trial had been proper. Id. After the completion of the proceedings on remand, our
supreme court held that “evidence of HGN field-sobriety testing, when performed according to
the NHTSA protocol by a properly trained officer, is admissible under the Frye test for the
purpose of showing whether the subject has likely consumed alcohol and may be impaired.”
People v. McKown, 236 Ill. 2d 278, 306 (2010) (McKown II).
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2014 IL App (2d) 130461
¶ 11 Defendant contends that Washburn’s testimony was insufficient to establish that he was
properly trained to administer the HGN test or that he administered the test according to NHTSA
protocol. Thus, according to defendant, Washburn’s testimony did not satisfy the foundational
requirements set forth in McKown II. That might be true, but McKown II cannot reasonably be
understood to apply to the type of testimony at issue in this case. Washburn never testified that
he formed any opinions based the movement of defendant’s eyes. Thus, it is of no moment that
Washburn might not have been properly trained—and might not have followed the proper
procedures—to elicit eye movement indicative of the consumption of alcohol. Washburn merely
related an incidental observation while he administered the HGN test—that defendant moved his
head despite being instructed to keep it still. Nothing in the McKown decisions bars an officer
from relating such observations, to the extent that they are independently relevant, and there is
no sensible reason to link the admissibility of such evidence to the foundational requirements for
the HGN test itself.
¶ 12 We agree with the State that a motorist’s failure to follow an officer’s directions during a
traffic stop is relevant to the question of whether the motorist is impaired. More importantly, 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. Furthermore, we reject defendant’s suggestion that
Washburn’s incidental observation while administering the HGN test was somehow tantamount
to conducting an ad hoc field sobriety test.
¶ 13 We note that defendant appears to suggest that the jury might have assumed that his
failure to keep his head still during the HGN test was a formal “clue” to impairment, rather than
an incidental observation. In other words, the jury might not have understood that the HGN test
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did not yield any conclusive result. Be that as it may, when the evidence was offered, defendant
objected only to the lack of foundation. When a party objects to evidence at trial on specific
grounds, he or she forfeits other possible grounds for objecting. People v. Bryant, 391 Ill. App.
3d 1072, 1078 (2009). More importantly, because defendant has framed the issue in this appeal
as whether there was a foundation for the testimony in question, we have no occasion to consider
other possible grounds for objection. However, our ruling today does not imply that, where the
State is aware that the HGN test was not conducted properly and, thus, that the results are
inadmissible, the officer’s otherwise relevant and material observations can or should be
characterized as part of the administration of an HGN or other field sobriety test.
¶ 14 Defendant also contends that the prosecutor “more than arguably” violated an oral order
in limine. Just prior to jury selection, defendant’s attorney moved in limine for a ruling that
“when [Washburn] gives his opinion regarding the HGN, *** he cannot say that defendant was
impaired.” Defendant argued that, under the McKown decisions, the HGN test could be the basis
for an opinion only on whether a motorist had consumed alcohol. The State had no objection
and the trial court granted the motion. Defendant contends that, during closing argument, the
State circumvented the ruling by arguing that defendant’s failure to follow instructions on the
HGN test was evidence of impairment. We disagree. Defendant does not suggest that the State
violated the letter of the trial court’s ruling. Nor, in our view, can it be said that the State
violated the spirit of the ruling, which was to limit the scope of scientific evidence introduced by
the State. Evidence that defendant failed to follow instructions during the HGN test does not fall
into that category and the prosecutor’s argument was a fair comment on the evidence.
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2014 IL App (2d) 130461
¶ 15 Defendant next argues that he is entitled to monetary credit toward his fines based on the
time he spent in custody prior to sentencing. Section 110-14(a) of the Code of Criminal
Procedure of 1963 provides:
“Any person incarcerated on a bailable offense who does not supply bail and against
whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for
each day so incarcerated upon application of the defendant. However, in no case shall
the amount so allowed or credited exceed the amount of the fine.” 725 ILCS 5/110-14(a)
(West 2008).
A defendant may apply for the credit for the first time on appeal. People v. Caballero, 228 Ill.
2d 79, 88 (2008). It is undisputed that defendant spent one day in custody. He is therefore
entitled, as the State concedes, to a credit of $5 toward his fines.
¶ 16 For the foregoing reasons, we affirm defendant’s conviction and sentence, but modify the
mittimus to reflect a $5 credit against defendant’s fines.
¶ 17 Affirmed as modified.
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