People v. Hostetter

NO. 4-07-0018 Filed 8/13/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
CHAD A. HOSTETTER, ) No. 06DT77
Defendant-Appellant. )
) Honorable
) Robert M. Travers,
) Judge Presiding.
_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In November 2006, a jury found defendant, Chad A.

Hostetter, guilty of driving under the influence (DUI) (625 ILCS

5/11-501(a)(2) (West 2006)). In January 2007, the trial court

sentenced defendant to 24 months' probation with the condition

that he serve 30 days' imprisonment with credit for 15 days

served.

Defendant appeals, arguing the State (1) committed

plain error when, during direct examination and the State's case

in chief, the State elicited testimony that defendant invoked his

right to silence by asking for an attorney and (2) failed to

prove him guilty beyond a reasonable doubt.

Because the State did not commit error when it elicited

testimony that defendant requested counsel and the State

presented sufficient evidence of defendant's guilt, we affirm.

I. BACKGROUND
 The jury trial commenced on November 9, 2006. For

clarity, this court will first discuss the general facts elicited

at trial and then more specifically discuss the testimony

relating to defendant’s request for counsel.

A. Testimony Elicited at Trial

On April 2, 2006, at approximately 1:30 a.m., defendant

was observed trying to repeatedly drive his vehicle over a gravel

embankment in the parking lot behind Rathbun's Tap, a local

tavern. The gravel embankment operated like a dike to prevent

cars from driving to the back of the neighboring store. While

pictures of the parking lot and gravel embankment were admitted

into evidence at trial, the pictures are not contained in the

record on appeal.

Robert McCormick, a sergeant with the Fairbury police

department, observed defendant attempting to free his vehicle

from the gravel embankment. When defendant got his vehicle free

from the embankment, he again attempted to drive over the

embankment. Sergeant McCormick activated his lights and exited

his vehicle.

Sergeant McCormick testified that when defendant exited

his vehicle, he seemed unsteady, staggered, and walked in a

serpentine manner toward Sergeant McCormick. Defendant told

Sergeant McCormick that he had not been drinking "since earlier."

Defendant also told Sergeant McCormick that he was parking the

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truck so that someone could give him a ride home.

Sergeant McCormick testified he had received training

to determine when someone was under the influence of alcohol.

Sergeant McCormick believed defendant was under the influence of

something based on (1) defendant's speech, which included pausing

frequently, repeating himself, slurring, and stringing his words

together; (2) defendant's dilated pupils; (3) his swaying; and

(4) the way defendant drove the truck. Sergeant McCormick

thought dilated pupils were a sign of alcohol intoxication.

Sergeant McCormick did not have defendant perform

field-sobriety tests because of the gravel and the fact that they

were attracting a lot of attention. Sergeant McCormick did ask

defendant to perform on the portable breath test (PBT) machine.

Despite two attempts, defendant only gave a partial breath

sample. The reading based on the partial breath sample was

0.042. Sergeant McCormick testified that a full sample is more

accurate than a partial sample. Sergeant McCormick also based

his conclusion that defendant was under the influence based on

the partial sample reading of 0.042 on the PBT.

Sergeant McCormick placed defendant under arrest for

DUI and put defendant in his squad car. The DUI citation states

the arrest took place on the public highways, specifically, on

the north alley of the 200 block of East Locust in Fairbury.

Sergeant McCormick drove to the hospital, a 20-minute drive.

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Sergeant McCormick intended to request blood and urine tests

because he thought defendant was under the influence of something

more than alcohol. Defendant fell asleep on the way to the

hospital. Once they arrived at the hospital, Sergeant McCormick

had to hold defendant up and prevent defendant from walking into

a closed door.

Sergeant McCormick testified that defendant's pupils

remained dilated when they entered the well-lit hospital.

According to Sergeant McCormick, that was a sign of being under

the influence of alcohol. At the hospital, defendant refused to

submit to the blood and urine tests. Defendant also told

Sergeant McCormick he had recently "beat another DUI."

Defendant never told Sergeant McCormick that he was

tired or that he had worked a 12-hour shift the previous evening.

Sergeant McCormick testified that sleep-deprived people do walk

unsteadily, have slurred speech with pauses, drive erratically,

and fall asleep. Sergeant McCormick did not believe that a

sleep-deprived person would have dilated pupils.

David Fritts, the police officer who inventoried

defendant's vehicle, testified he found (1) two bottles of

Hornsby's Hard Cider in a toolbox in the back of the truck; (2)

one cooler containing two unopened bottles of Hornsby's Hard

Cider on ice; and (3) a second cooler containing six unopened

bottles of Hornsby's Hard Cider on ice. Whether the two bottles

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found in the toolbox were empty or unopened is unclear. The

State rested.

Defendant called Derrick Renken, a road deputy for the

Livingston County sheriff's department, to testify. Deputy

Renken testified that he had stopped defendant's vehicle earlier

in the evening, at approximately 9:39 pm, after receiving a

dispatch call. When Deputy Renken made contact with the vehicle,

the vehicle was traveling down the center of the roadway with the

left turn signal activated for about one mile. The vehicle also

had a hanging exhaust.

Deputy Renken effectuated a stop, approached the

vehicle, and asked the driver if he had had anything to drink

that night. The driver, whom Deputy Renken identified as

defendant, said he had had one alcoholic beverage at his

residence. When defendant reached in to the glove box to

retrieve his registration and insurance, Deputy Renken saw an

empty, clear bottle of Hornsby Hard Cider. Deputy Renken also

noticed two lunch coolers containing unopened bottles of

Hornsby's Hard Cider located in the front of defendant’s truck

bed.

Deputy Renken searched defendant's vehicle for open

alcohol and found a second empty bottle of Hornsby's Hard Cider.

Deputy Renken agreed the police report might have said two

unopened alcoholic-beverage bottles were seen in the glove box.

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He explained that he was trying to testify by memory, and he

believed all the bottles he found in the truck were empty. He

stated if his testimony was contradictory to his report, then the

information in his report was more accurate. Deputy Renken did

not refresh his recollection with his report, and the report was

never admitted into evidence.

Deputy Renken asked defendant to perform field-sobriety

tests. Defendant successfully completed the horizontal-gaze-

nystagmus and the one-legged-stand tests. Defendant failed the

walk-and-turn test because he did not follow the instructions.

However, Deputy Renken did not believe he had enough evidence to

charge defendant with DUI. Therefore, Deputy Renken cited

defendant for improper lane usage and illegal transportation of

alcohol and issued a written warning for the hanging exhaust.

When Deputy Renken returned to defendant's vehicle to give him

the citations, he discovered that defendant had fallen asleep.

Once Deputy Renken was able to get defendant's attention,

defendant looked extremely confused. Defendant told him that he

had recently been working 12-hour shifts at R.R. Donnelley in

Dwight. Deputy Renken told defendant he might want to drive home

and stay home for the evening.

Deputy Renken testified that dilated pupils did not

indicate anything about being under the influence of alcohol.

Dilation of the eyes generally occurs with the use of a

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depressant or cannabis. On cross-examination, Deputy Renken

agreed that walking in a serpentine motion, slurred speech, and

repeating oneself can all be signs of being under the influence

of alcohol.

Defendant testified on his own behalf. Defendant left

work at 7 a.m. on Saturday, April 1, 2002, after working a 12-

hour shift. Defendant’s time card from work was admitted into

evidence but is not included in the record on appeal. Defendant

testified he had just recently changed from first shift, which

runs from 7 a.m. until 3 p.m, to third shift, which runs from 11

p.m. until 7 a.m. He had worked 49 hours that week. Defendant

had only three to four hours of sleep that Friday and was not

used to sleeping during the day.

Defendant testified that after leaving work, he went

home to Chenoa, changed clothes, and then went to Fairbury to the

Saturday auction. Around 2 or 3 p.m., defendant returned to

Chenoa, ate dinner, showered, changed clothes, and left again at

about 9:30 p.m. Defendant drank one Hornsby's Hard Cider between

8 and 9 p.m. Hornsby's Hard Cider is the only alcoholic beverage

defendant drinks. Defendant did not take any drugs or

medications to help him stay awake.

Defendant drove to Fairbury to find a friend who lived

outside town. Defendant agreed that Deputy Renken accurately

described the stop. However, defendant testified that Deputy

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Renken found two unopened bottles in the glove compartment and an

empty bottle under the passenger seat. Defendant was not sure

how the empty bottle got there.

Defendant had purchased the hard cider, sold in six-

packs, at the Apollomart in Chenoa. Defendant placed two

unopened bottles in his glove compartment because all the bottles

would not fit in the coolers.

Defendant did not take Deputy Renken's advice and

return home. Instead, he continued his attempt to find his

friend's house. When he could not find the house, defendant went

to Fairbury and stopped at another friend’s house. Defendant

then went to Rathbun's Tap to find another friend. He arrived

between 11:30 p.m and 12 a.m. and stayed until the bar closed at

1 or 1:30 a.m. Defendant did not consume any alcohol because

Rathbun's Tap does not carry the hard cider he likes. Except for

the bottle he drank at his home, defendant did not consume any

other alcohol that night.

Defendant testified that when his truck got "hung up"

on the gravel embankment, he was trying to move his vehicle to

another parking spot so that it would not be towed overnight.

Defendant tried to drive over the embankment because, due to cars

leaving through the alley, that was the only way to move the

truck to the back of Rathbun’s Tap to prevent it from being

towed. Defendant testified he had difficulty getting over the

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gravel embankment because of "lack of vision," lack of lighting,

and an inability to maneuver around the gravel embankment because

of other cars leaving the bar.

When Sergeant McCormick showed up, defendant told him

he was trying to park the vehicle so he could get a ride home.

Defendant was going to look for a ride to Chenoa because none of

his friends would give him a ride back to Chenoa.

Defendant testified he had trouble walking because of

the gravel and the uneven surface and because he was very tired.

Defendant testified he fell asleep on the way to the hospital

because he was very tired. Sergeant McCormick never asked

defendant to perform field-sobriety tests.

Defendant admitted, on cross-examination, telling

Sergeant McCormick he had a previous DUI dismissed but denied

saying he "beat the DUI." The previous DUI occurred that year in

La Salle County the Thursday before the Super Bowl. In that

instance, defendant took the Breathalyzer and blew a 0.04, and

the charge was dismissed.

In rebuttal, the State submitted certified copies of

defendant's prior convictions for theft and unlawful possession

of a controlled substance. Neither exhibit was included in the

record on appeal.

B. Testimony Regarding Defendant's Request for Counsel

Sergeant McCormick testified that at the hospital,

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defendant refused to submit to the blood and urine tests. The

following exchange occurred between Sergeant McCormick and the

prosecution:

"Q. Why--Do you know why he refused

those tests?

A. He stated that he wouldn’t take the

test unless he had a lawyer present.

Q. Okay. Now, to perform this sort of

test, is an attorney required?

A. No.

Q. Does the defendant have a right to

an attorney for these tests?

MR. BERTRAM [(defense counsel)]:

Objection.

THE COURT: Basis?

MR. BERTRAM: Foundation.

THE COURT: Overruled. You may answer.

A. No, he doesn’t.

Q. But the defendant refused to take

these tests?

A. That’s correct."

On cross-examination, defense counsel also elicited testimony

from Sergeant McCormick that defendant asked to have his lawyer

present before submitting to blood and urine tests and demanded

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to call his lawyer.

Defendant testified, on direct examination, that when

Sergeant McCormick asked him to submit to blood and urine tests,

defendant said he would only do so if he could speak to his

attorney. Defendant testified that Sergeant McCormick told him

he did not have the right to speak to his lawyer and asked him

again if he was willing to take the test. Defendant refused.

Defense counsel asked defendant why he wanted to speak to his

attorney. Defendant responded, "Because that is my right." On

cross-examination, when asked whether he had some things to say

to his attorney, defendant testified that he asked for his

attorney. Defendant also testified he refused to submit to blood

or urine testing because he had the right to speak to his

attorney.

The State did not mention defendant's request for

counsel during opening or closing arguments. Defense counsel,

however, stated during closing arguments that defendant’s refusal

to take the blood and urine tests without an attorney present

illustrated that defendant was not under the influence. Defense

counsel stated defendant was "coherent enough to know" he should

talk to a lawyer. Defense counsel also stated defendant’s

request for his attorney was proof that defendant was able to

make a "conscious decision."

The jury returned a verdict finding defendant guilty of

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DUI. The trial court sentenced defendant as previously stated.

This appeal followed.

II. ANALYSIS

Defendant argues the State committed plain error when,

during direct examination and in the State's case in chief, the

State elicited testimony that defendant invoked his right to

silence by asking for an attorney. Defendant also argues the

State failed to prove him guilty beyond a reasonable doubt

because of insufficient evidence that defendant was under the

influence of alcohol.

A. The State Did Not Violate Defendant's Right
to Silence by Eliciting Testimony About Defendant's
Request To Speak to an Attorney

Defendant first argues the State committed reversible

error when it elicited testimony during its case in chief that

defendant refused to give blood and urine samples without an

attorney present. Specifically, defendant asserts such request

for counsel was equivalent to invoking the right to remain silent

guaranteed by the fifth amendment. U.S. Const., amend. V.

Defendant recognizes he has forfeited this issue by

failing to object at trial and include the issue in a posttrial

motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d

1124, 1130 (1988) (failure to object at trial or in a posttrial

motion results in forfeiture of the issue on appeal). However,

defendant contends that this court should review the issue under

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the plain-error doctrine.

The plain-error doctrine allows a reviewing court to

consider an unpreserved issue. People v. Herron, 215 Ill. 2d

167, 186-87, 830 N.E.2d 467, 479 (2005). This court may review

an error under the plain-error doctrine if (1) the evidence is

closely balanced or (2) the error is "so substantial that it

affected the fundamental fairness of the proceeding, and

remedying the error is necessary to preserve the integrity of the

judicial process." People v. Hall, 194 Ill. 2d 305, 335, 743

N.E.2d 521, 539 (2000). However, to determine whether the

alleged mistake rose to the level of plain error, we must first

determine whether an error occurred. People v. Johnson, 218 Ill.

2d 125, 139, 842 N.E.2d 714, 722 (2005).

1. No Error Occurred Because Defendant's Request for Counsel Was
Not Equivalent to Asserting His Right to Silence

The fifth amendment to the United States Constitution

provides, in pertinent part, that no person "shall be compelled

in any criminal case to be a witness against himself." U.S.

Const., amend. V. To protect the fifth-amendment privilege

against self-incrimination, the State must inform defendants of

their rights to silence and counsel before they are questioned

during a custodial interrogation. Miranda v. Arizona, 384 U.S.

436, 444, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612 (1966).

In Doyle v. Ohio, 426 U.S. 610, 617-18, 49 L. Ed. 2d

91, 97-98, 96 S. Ct. 2240, 2244-45 (1976), the Supreme Court

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elaborated on Miranda and held that it would violate a

defendant’s due-process right if the State were permitted to use

a defendant’s postarrest, post-Miranda silence to impeach the

defendant. The Court reasoned that the Miranda warnings carry an

implicit promise that silence will carry no penalty. Doyle, 426

U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245. Consequently,

the Court held that it would be fundamentally unfair for the

State to promise defendants they have the right to silence

through the Miranda warnings and then use the resultant exercise

of that right against them. Doyle, 426 U.S. at 618, 49 L. Ed. 2d

at 98, 96 S. Ct. at 2245.

Since Doyle, the Supreme Court has held, with respect

to post-Miranda warnings, the right to remain silent also

includes the "desire to remain silent until an attorney has been

consulted." Wainwright v. Greenfield, 474 U.S. 284, 295 n.13, 88

L. Ed. 2d 623, 632 n.13, 106 S. Ct. 634, 640 n.13 (1986). In

Wainwright, the Court held that the defendant’s request to speak

to an attorney after being given his Miranda warnings was

equivalent to exercising his right to silence. Wainwright, 474

U.S. at 295, 88 L. Ed. 2d at 632, 106 S. Ct. at 640. As such,

the State violated defendant’s due-process rights when it used

defendant’s request for an attorney as substantive evidence of

defendant’s guilt. Wainwright, 474 U.S. at 295, 88 L. Ed. 2d at

632, 106 S. Ct. at 641.

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 Both Doyle and Wainwright involved postarrest, post-

Miranda assertions of the right to remain silent. In this case,

although defendant claims the issue involves a pre-arrest, pre-

Miranda assertion of the right to remain silent, the record

clearly demonstrates defendant was arrested. Therefore, this

case involves the use of defendant’s postarrest, pre-Miranda

silence as substantive evidence of guilt. Because defendant was

not given the implicit promise that silence will carry no penalty

that is embodied in the Miranda warnings, defendant’s due-process

rights were not violated when the State elicited testimony

regarding defendant’s request to speak to his attorney. Griffith

v. State, 55 S.W.3d 598, 606-07 (Tex. Crim. App. 2001) (en banc,

finding the State's elicitation of the defendant's request for

counsel did not violate his due-process rights because he had not

been given his Miranda warnings). However, the State’s

elicitation of a defendant’s postarrest, pre-Miranda silence can

still violate a defendant’s fifth-amendment right to silence.

In the context of a postarrest, pre-Miranda assertion

of the right to remain silent, courts have made a distinction

between impeachment use and substantive use. Where a defendant

takes the stand, the State can use the defendant's postarrest,

pre-Miranda silence for impeachment. Fletcher v. Weir, 455 U.S.

603, 607, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312 (1982).

The federal circuits are split on whether the State can use

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postarrest, pre-Miranda silence as substantive evidence of guilt.

The Seventh, Ninth, and D.C. Circuits have held that postarrest,

pre-Miranda silence is inadmissible as substantive evidence of

guilt because that use violates the fifth-amendment right to

silence. See United States v. Velarde-Gomez, 269 F.3d 1023,

1028-30 (9th Cir. 2001); United States v. Moore, 104 F.3d 377,

387-89 (D.C. Cir. 1997); United States v. Hernandez, 948 F.2d

316, 322-23 (7th Cir. 1991). The Fourth, Eighth, and Eleventh

Circuits disagree and hold that the State’s use of postarrest,

pre-Miranda silence as substantive evidence of guilt does not

violate the fifth-amendment right to silence. See United States

v. Frazier, 408 F.3d 1102, 1109-11 (8th Cir. 2005); United States

v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991); United States v.

Love, 767 F.2d 1052, 1063 (4th Cir. 1985).

This court need not, however, decide whether the State

can use postarrest, pre-Miranda silence as substantive evidence

of guilt because defendant’s request to speak to his attorney was

not an invocation of his right to silence. See Griffith, 55

S.W.3d at 603 (finding the defendant’s request to speak to his

attorney before deciding whether to submit to a breath-alcohol

test was not the same as expressing a desire to remain silent).

That is, when Sergeant McCormick asked defendant to submit to

blood and urine tests, defendant was not subject to custodial

interrogation. See Schmerber v. California, 384 U.S. 757, 760-

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61, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, 1830-31 (1966) (the

State can force a defendant to submit to blood-alcohol testing

without violating fifth-amendment privilege); People v. Bugbee,

201 Ill. App. 3d 952, 956, 559 N.E.2d 554, 556 (1990) (refusal to

submit to a Breathalyzer test is not an act protected by the

constitutional privilege against self-incrimination); People v.

Kern, 182 Ill. App. 3d 414, 416, 538 N.E.2d 184, 186 (1989) (a

defendant does not ordinarily have the right to consult with

counsel prior to taking a Breathalyzer test). Consequently,

defendant did not have the right to counsel under the fifth

amendment when he requested to speak to his attorney.

Therefore, this case is distinguishable from

Wainwright, which concluded that the defendant's request to speak

to an attorney was equivalent to invoking the right to remain

silent. In Wainwright, the defendant had the right to counsel

and was informed of this right through the Miranda warnings. In

contrast here, defendant did not have the right to counsel and

was not promised the right to counsel through the Miranda

warnings. Thus, defendant was not exercising a constitutional

right to counsel when he requested his attorney. Defendant made

the request because he erroneously believed he had the right to

speak with his attorney before submitting to the blood and

alcohol tests. As such, defendant’s request for an attorney

cannot be construed as an expression of his desire to remain

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silent.

Moreover, defendant's sixth-amendment right to counsel

was not triggered by Sergeant McCormick’s request that he submit

to a blood and urine test. The sixth amendment provides a

defendant with the right to counsel only "at or after the

initiation of adversary judicial criminal proceedings--whether by

way of formal charge, preliminary hearing, indictment,

information, or arraignment." Kirby v. Illinois, 406 U.S. 682,

689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882 (1972). In the

context of a driving-under-the-influence investigation, the

compulsory withdrawal of blood is not a critical stage of the

proceedings at which a defendant has the sixth-amendment right to

counsel. United States v. Wade, 388 U.S. 218, 227-28, 18 L. Ed.

2d 1149, 1157-58, 87 S. Ct. 1926, 1932-33 (1967); cf. People v.

Okun, 144 Ill. App. 3d 1066, 1070, 495 N.E.2d 115, 118 (1986)

(discussing breath test). Therefore, defendant did not exercise

his right to silence by refusing to submit to blood and urine

tests without an attorney present.

2. Even if Error Occurred, Error Does Not
Rise to Level of Plain Error

The mere fact, however, that defendant did not have a

right to counsel or invoke his right to silence by requesting the

presence of his attorney does not end the inquiry. Only relevant

evidence should be admitted, and even relevant evidence may be

excluded if its prejudicial effect substantially outweighs its

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probative value. People v. Ransom, 319 Ill. App. 3d 915, 921-22,

746 N.E.2d 1262, 1268-69 (2001). Even though a defendant does

not have the right to counsel when an officer requests blood and

urine tests, the references to the defendant’s request for

counsel might be prejudicial and might have allowed the jury to

improperly infer the defendant’s guilt. See Lajoie v. State, 237

S.W.3d 345, 353 (Tex. App. 2007) (court held that allowing the

jury to hear videotaped recording of defendant’s request for

counsel, even though he did not have the right to counsel, was

prejudicial).

Even if error occurred in this case, however, that

error does not rise to the level of plain error. Defendant

argues the State’s elicitation of the testimony and the "repeated

references" to defendant’s request for counsel prejudiced him and

"could have tipped the balance in favor of a finding of guilt."

We disagree.

The defendant bears the burden of proof under the

plain-error doctrine. Herron, 215 Ill. 2d at 186-87, 830 N.E.2d

at 479-80. The defendant must establish that the trial court

committed error and that the error was prejudicial. Herron, 215

Ill. 2d at 186-87, 830 N.E.2d at 479-80. An error is prejudicial

if the evidence in the case was so closely balanced that "the

error alone severely threatened to tip the scales of justice

against [the defendant]." Herron, 215 Ill. 2d at 187, 830 N.E.2d

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at 479.

In this case, the evidence was not closely balanced.

As discussed further below regarding defendant's sufficiency-of-

the-evidence claim, the jury heard testimony about defendant’s

erratic driving, prior stop by the police, presence at a tavern,

admission to drinking one hard cider, repeated futile attempts to

drive over the parking lot embankment, partial PBT sample of

0.04, serpentine-like walk, slurred and disjointed speech, act of

falling asleep in the police car, refusal to take blood and urine

tests, and possession of at least one or two empty bottles in his

car. In light of this substantial evidence of guilt, we conclude

the isolated and inconspicuous comments likely had little, if

any, prejudicial effect on the jury’s finding of guilt.

Specifically, the record indicates that the evidence

elicited by the prosecution was brief and isolated. The State

did not overtly use defendant’s request for his attorney as a

means of proving defendant’s guilt. Rather, the State elicited

the testimony to explain why defendant refused to submit to the

blood and urine testing. See State v. Fencl, 109 Wis. 2d 224,

238, 325 N.W.2d 703, 711-12 (1982) (finding the State's six

isolated and brief comments regarding defendant’s pre-arrest,

pre-Miranda request for attorney were too subtle to be

prejudicial). Further, defense counsel's failure to object

suggests the alleged error was not serious. See Fencl, 108 Wis.

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2d at 239, 325 N.W.2d at 712 (trial counsel’s failure to object

or raise the errors suggested counsel viewed the errors as not

serious).

In fact, not only did defense counsel fail to object to

the testimony, defense counsel also elicited testimony about

defendant's request for counsel. Defense counsel questioned

Sergeant McCormick about the request on cross-examination, asked

defendant about his request on direct-examination, and relied on

the request during closing arguments to prove defendant was not

intoxicated. As such, defendant cannot argue he was prejudiced

by the testimony because he took part in its elicitation. See,

e.g., People v. Schmitt, 131 Ill. 2d 128, 137, 545 N.E.2d 665,

668 (1989) (holding that "where *** a party acquiesces in

proceeding in a given manner, he is not in a position to claim he

was prejudiced thereby"). Therefore, even if error occurred, it

was not plain error and does not warrant a new trial.

B. The State Proved Defendant Guilty
of DUI Beyond a Reasonable Doubt

Defendant next argues the State failed to prove him

guilty of DUI beyond a reasonable doubt. Specifically, defendant

argues the State presented insufficient evidence that defendant

was under the influence of alcohol because the State did not

present evidence of field-sobriety or chemical tests, and the

symptoms the State presented to prove intoxication are

explainable by defendant’s extreme fatigue.

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 1. Standard of Review

When a defendant challenges the sufficiency of the

evidence, the test is whether, after "viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt." People v. Ward, 215 Ill. 2d 317, 322, 830

N.E.2d 556, 559 (2005). The trier of fact determines the

credibility of the witnesses, the weight to be given to their

testimony, and the inferences to be drawn therefrom. People v.

Curtis, 296 Ill. App. 3d 991, 999, 696 N.E.2d 372, 378 (1998).

The existence of discrepancies in a witness's testimony does not

warrant reversal, and minor discrepancies affect only the weight

of the witness's testimony. People v. Green, 298 Ill. App. 3d

1054, 1064, 700 N.E.2d 1097, 1103 (1998).

2. Elements of DUI Charge

Section 11-501(a)(2) of the Illinois Vehicle Code

provides that "[a] person shall not drive or be in actual

physical control of any vehicle within this State while *** under

the influence of alcohol." 625 ILCS 5/11-501(a)(2) (West 2006).

A defendant is under the influence when, as a result of consuming

alcohol or any other intoxicating substance, "'his mental or

physical faculties are so impaired as to reduce his ability to

think and act with ordinary care.’" People v. Gordon, 378 Ill.

App. 3d 626, 631, 881 N.E.2d 563, 567 (2007), quoting Illinois

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Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. 2000).

The State can use circumstantial evidence to prove a

defendant guilty of DUI. People v. Diaz, 377 Ill. App. 3d 339,

345, 878 N.E.2d 1211, 1216 (2007). Further, the credible

testimony of the arresting officer by itself is sufficient to

sustain a conviction of driving under the influence. People v.

Janik, 127 Ill. 2d 390, 402-03, 537 N.E.2d 756, 761-62 (1989)

(holding that the arresting officer’s testimony about the odor of

alcohol, defendant’s watery eyes, and defendant’s poor

performance on the field sobriety tests was sufficient evidence

of intoxication).

3. The State Presented Sufficient Evidence That Defendant Was
Under the Influence of Alcohol

Defendant argues the State did not prove him guilty

beyond a reasonable doubt because the State did not present

evidence of field sobriety tests or chemical tests. The

defendant’s argument is without merit, however, because the State

is not required to present scientific evidence to sustain a DUI

conviction. See People v. Casa, 113 Ill. App. 2d 1, 6, 251

N.E.2d 290, 293 (1969) (court held that scientific evidence is

not necessary to sustain a conviction of DUI).

Defendant also argues the State did not prove him

guilty beyond a reasonable doubt because the circumstantial

evidence--defendant's alleged "symptoms" of intoxication--could

also be explained by defendant’s extreme fatigue. Defendant

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argues the evidence of his "serpentine" walking, slurred speech,

disjointed and repetitive speech, and dilated eyes could have

been caused by his lack of sleep, rather than from a state of

intoxication. Consequently, defendant argues, the State did not

prove him guilty beyond a reasonable doubt.

Defendant bases this contention on People v. Thomas, 34

Ill. App. 3d 578, 340 N.E.2d 174 (1975), which held that the

State failed to prove the defendant guilty beyond a reasonable

doubt because the symptoms the State presented to prove

defendant's intoxication might have been the result of

defendant's recent brain injury. Thomas, 34 Ill. App. 3d at 582,

340 N.E.2d at 177. In Thomas, the State relied on defendant’s

unsteady balance, slurred speech, disoriented mental state, red

eyes and face, and the odor of alcohol to prove defendant was

intoxicated. Thomas, 34 Ill. App. 3d at 580-81, 340 N.E.2d at

176. Because defendant’s brain injury could have produced all

the evidence the State presented to prove intoxication, except

the odor of alcohol, which alone is insufficient, a reasonable

doubt existed as to defendant’s guilt. Thomas, 34 Ill. App. 3d

at 580, 340 N.E.2d at 176.

This case is distinguishable from Thomas. Even if

defendant's symptoms could be attributed to his lack of sleep,

the State presented other circumstantial evidence sufficient to

prove defendant was under the influence. The jury heard

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defendant’s admission of drinking at least one hard cider that

evening. In addition, at least one or two empty bottles were

found in defendant’s vehicle. The jury could rely on the

inference from the fact that defendant started with 12 bottles

and ended the night with 10, and discredit defendant’s testimony

that Deputy Renken took two of the bottles. Moreover, defendant

provided only partial PBT samples on two separate attempts. The

jury was free to infer from the partial PBT samples that

defendant was being evasive because he knew he was intoxicated.

Defendant also testified that he was moving his vehicle because

he was going to get a ride home to Chenoa. The jury was free to

view this as a recognition by defendant he was unable to drive

due to his intoxicated state.

Further, defendant refused to submit to blood and urine

tests, which is statutorily permitted evidence that defendant

knew he was intoxicated. See People v. Garriott, 253 Ill. App.

3d 1048, 1052, 625 N.E.2d 780, 784 (1993) (evidence of driver’s

refusal to submit to test is relevant because it allows the jury

to infer that the defendant was aware of his intoxicated state);

625 ILCS 5/11-501.2(c) (West 2006) ("If a person under arrest

refuses to submit to a chemical test ***, evidence of refusal

shall be admissible in any civil or criminal action ***").

However, the record does not clearly establish whether

the DUI occurred on private property or the public highway, and

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consequently, whether the blood and urine test would have been

obtained pursuant to the implied-consent statute. Neither party

raises this issue. The DUI citation does state that the incident

occurred on the public highways, specifically, on the north alley

of the 200 block of East Locust in Fairbury. The implied-consent

statute states that a defendant arrested for DUI is deemed to

have given consent to chemical tests if he was driving upon the

public highways. 625 ILCS 5/11-501.1(a) (West 2006) ("Any person

who drives or is in actual physical control of a motor vehicle

upon the public highways of this State shall be deemed to have

given consent *** to a chemical test or tests of blood, breath,

or urine for the purpose of determining the content of alcohol

*** in the person's blood" (emphasis added)).

Regardless, evidence of refusal is admissible whether

the DUI occurred on private property or the public highways under

section 11-501.2(c). 625 ILCS 5/11-501.2(c) (West 2006) ("If a

person under arrest refuses to submit to a chemical test ***,

evidence of refusal shall be admissible in any civil or criminal

action ***"); see also Garriott, 253 Ill. App. 3d at 1051, 625

N.E.2d at 784 ("a refusal to submit to a [B]reathalyzer test is

admissible regardless of whether that refusal occurs within the

provisions of section 11-501.1 of the Code, the implied-consent

statute" (emphasis in original)).

Here, the jury was free to reject defendant’s claim

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that the symptoms he exhibited were attributable to his extreme

fatigue, rather than evidence of his intoxication. See People v.

Bonzi, 65 Ill. App. 3d 927, 932, 382 N.E.2d 1300, 1303 (1978)

(the court held that the jury was free to reject the defendant’s

argument that the symptoms he displayed after an accident were

due to his injuries rather than being evidence that the defendant

was under the influence). After weighing the evidence in the

light most favorable to the prosecution, we find a rational trier

of fact could have found the elements of DUI proved beyond a

reasonable doubt. Therefore, we affirm the trial court.

III. CONCLUSION

For the reasons stated, we affirm defendant's

conviction. As part of our judgment, we award the State its $50

statutory assessment as costs of this appeal.

Affirmed.

COOK and STEIGMANN, JJ., concur.

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