FIRST DIVISION
NOVEMBER 05, 2007
No. 1-06-2690
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 1984
)
JAMIE DIAZ, ) Honorable
) Eddie A. Stephens,
Defendant-Appellant. ) Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
Defendant Jamie Diaz was convicted of three counts of aggravated driving of a
vehicle under the influence of alcohol following a bench trial. The trial court sentenced
defendant to the 44 days he served in the Cook County Department of Corrections, as
time considered served, and 2 years felony probation and assessed fines and fees
including a $150 “crime lab driving under the influence (DUI) analysis” fee.
Defendant’s motion for a new trial was denied. Defendant appeals, arguing that (1) the
State failed to prove him guilty beyond a reasonable doubt, (2) his trial counsel was
ineffective, (3) the $150 crime lab DUI analysis fee should be vacated, since no lab
analysis was conducted, (4) the assessed fees should be offset by a $5-per-day
presentence credit for the 44 days he was incarcerated prior to sentencing, and (5) the
mittimus should be corrected to reflect a conviction of only one count of driving a
vehicle under the influence of alcohol.
No. 1-06-2690
BACKGROUND
The facts of this case are largely undisputed. At 8:44 p.m. on January 26, 2006,
Officers Tyler and Tunzi “curbed” a motor vehicle driven by defendant after Officer
Tyler observed defendant not wearing a seatbelt. The officer did not observe defendant
violate any other traffic laws and, in addition, did not observe defendant swerved or
perform any other unusual actions.
Officer Tyler approached the defendant’s driver’s-side window with a lit
flashlight and asked defendant to tender his driver’s license. Defendant responded that
he did not have one. Tyler observed that defendant had bloodshot eyes, “mumbled”
speech with a Hispanic accent, and a “moderate” odor of alcohol. Tyler asked defendant
to exit his vehicle. Defendant, a slightly overweight male, complied, and as he exited his
vehicle, the officer observed defendant sway and exhibit “a little bit of a balance issue.”
Tyler conducted a horizontal gaze nystagmus (HGN) test. Nystagmus, a
physiological phenomenon, is a term used to describe an involuntary jerking of the
eyeball. “ ‘[It] *** is characterized by a slow drift, usually away from the direction of
gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it
may be congenital or due to a variety of conditions affecting the brain, including
ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze,
disorders of the vestibular apparatus and brainstem and cerebellar dysfunction.’ ”
(Emphasis in original.) People v. Buening, 229 Ill. App. 3d 538, 539 (1992), quoting The
Merck Manual of Diagnosis & Therapy 1980 (14th ed. 1982). “Horizontal gaze
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No. 1-06-2690
nystagmus then is the inability of the eyes to maintain visual fixation as they are turned
from side to side or move from center focus to the point of maximum deviation at the
side.” Buening, 229 Ill. App. 3d at 539, citing State v. Garrett, 119 Idaho 878, 881, 811
P2d 488, 491 (1991). The horizontal gaze nystagmus test as routinely performed by law
enforcement officers consists of:
“ ‘ The driver [being] asked to cover one eye and focus the other on an
object (usually a pen) held by the officer at the driver’s eye level. As the
officer moves the object gradually out of the driver’s field of vision
toward his ear, he watches the driver’s eyeball to detect involuntary
jerking. The test is repeated with the other eye. [It is believed by certain
law enforcement agencies that,] [b]y observing (1) the inability of each
eye to track movement smoothly, (2) pronounced nystagmus at maximum
deviation and (3) onset of the nystagmus at an angle less than 45 degrees
in relation to the center point, the officer can estimate whether the driver’s
blood alcohol content (BAC) exceeds the legal limit *** .’ ” Buening,
229 Ill. App. 3d at 539-40, quoting State v. Superior Court, 149 Ariz. 269,
271, 718 P.2d 171, 173 (1986).
Tyler testified that he explained how to perform the HGN test to defendant and
that defendant confirmed that he understood. Tyler administered the HGN test by
moving a pen from side-to-side at defendant’s eye level. Tyler testified that defendant’s
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No. 1-06-2690
eyes jerked while following the pen and when they were at maximum deviation, leading
the officer to opine that defendant was under the influence of alcohol.
Tyler also conducted a one-leg-stand test. Tyler instructed defendant to place his
legs together with his arms at his side and then raise his right leg in the air and count to
30. Defendant was unable to complete the one-leg-stand test.
After these visual observations were completed, defendant was arrested for
driving a vehicle while under the influence of alcohol and was also ticketed for failing to
wear a seatbelt while operating an automobile. Defendant was taken to the police station
for processing. Tyler requested defendant to take a Breathalyzer test and to answer the
questionnaire on the back of the alcohol influence report, but defendant declined to do
either.
The officer read defendant his Miranda rights, after which defendant stated that
he was not going to answer any more questions. Notwithstanding that reply, Tyler
immediately asked defendant if he had been drinking, and defendant stated that he had
consumed two beers and was going out for more when the officers pulled him over.
Tyler then ran defendant’s name through the police database and found that he had two
prior convictions for driving a vehicle under the influence of alcohol and that his driver’s
license was revoked. 625 ILCS 5/11-501(a)(2) (West 2006). Section 11-501(a)(2) of the
Illinois Vehicle Code (Vehicle Code) states: “(a) A person shall not drive or be in actual
physical control of any vehicle within [the State of Illinois] while: *** (2) under the
influence of alcohol.” 625 ILCS 5/11-501(a)(2) (West 2006).
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Defendant was charged with three counts of aggravated driving of a vehicle while
under the influence of alcohol. Count I charged defendant with violating section 11-
501(a)(2) of the Vehicle Code for a third time during a period in which his driving
privileges were revoked. 625 ILCS 5/11-501(c-1)(2) (West 2006). Count II charged
defendant with violating section 11-501(a)(2) of the Vehicle Code while his driving
privileges were revoked. 625 ILCS 5/11-501(c-1)(1) (West 2006). Count III charged
defendant with violating section 11-501(a)(2) of the Vehicle Code for a third time. 625
ILCS 5/11-501(d)(1)(A) (West 2006).
At trial, Officer Tyler testified to his familiarity with the behavior of individuals
under the influence of alcohol, both as a police officer for 3 ½ years and from his
personal life. He testified that he utilized the HGN procedure he learned at the police
academy and adhered to the “three guidelines” regarding HGN testing but could not
recall the third guideline on direct examination. He also stated that he uses his “book”
and is not required to remember the guideline procedures for HGN testing.
On cross-examination, the officer testified that factors other than intoxication,
such as fatigue, can cause nystagmus and difficulty balancing. He stated that he did not
know whether defendant suffered from any “physical[] issues” that could have caused the
nystagmus aside from alcohol. Tyler further ceded that defendant could have had
physical issues that would have precluded him from successfully completing the
one-leg-stand test.
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The parties stipulated that defendant had his driver’s license revoked pursuant to
section 11-501 of the Vehicle Code (625 ILCS 5/11-501 et seq. (West 2000)) on October
9, 2001, and again on November 1, 2001, on separate traffic citations. The State entered
defendant’s traffic abstract into evidence without objection, which documented two prior
convictions for driving under the influence convictions and a license suspension in effect
on January 26, 2006.
Defendant presented no evidence and did not testify on his own behalf, after
defendant’s motion for an acquittal was denied.
The trial court found defendant guilty on all three counts of aggravated driving
under the influence of alcohol, noting the visual observations of Officer Tyler upon
“curbing” defendant’s vehicle, defendant’s inability to complete the one-leg stand test,
the positive results of the HGN test, and defendant’s admission to having consumed two
beers. The trial court orally found that counts II and III merged into count I, although the
mittimus lists guilty findings on all three counts. The court sentenced defendant to the 44
days he had served and assessed fines and fees in the amount of $1,905.
ANALYSIS
On appeal, defendant first contends that he was not proven guilty beyond a
reasonable doubt. Specifically, defendant argues that the State’s case was based solely
on Officer Tyler’s testimony concerning his observations, which were insufficient to
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No. 1-06-2690
prove defendant guilty of aggravated driving a vehicle under the influence of alcohol
beyond a reasonable doubt.
Illinois law prohibits any person from (1) “driv[ing] or be[ing] in actual physical
control of any vehicle” while (2) under the influence of alcohol. 625 ILCS 5/11-
501(a)(2) (West 2006). The statute includes a number of aggravating factors, which
elevate the penalty from a misdemeanor to a felony. The three specific aggravating
factors at issue in this case create felony violations for driving a vehicle under the
influence of alcohol “during a period in which [defendant’s] driving privileges are
revoked” (625 ILCS 5/11-501(c-1)(1) (West 2006)), driving under the influence of
alcohol for a “third time, if the third violation occurs [while defendant’s] driving
privileges are revoked” (625 ILCS 5/11-501(c-1)(2) (West 2006)), and driving under the
influence of alcohol “for the third or subsequent time” (625 ILCS 5/11-501(d)(1)(A)
(West 2006)).
As noted, the parties stipulated that defendant had his driver’s license revoked at
the time of his arrest and that defendant had two prior convictions for driving under the
influence of alcohol. Accordingly, disposition of defendant’s sufficiency of the evidence
argument turns on whether the State proved defendant guilty of a violation of section 11-
501(a)(2) of the Vehicle Code beyond a reasonable doubt.
The critical inquiry on review of a sufficiency of the evidence claim 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
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No. 1-06-2690
doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). It is not the function of this
court to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). After a guilty
finding, the fact finder’s role as weigher of evidence is preserved though a legal
conclusion that, upon judicial review, all of the evidence is considered in the light most
favorable to the prosecution. People v. Migliore, 170 Ill. App. 3d 581, 592 (1988). The
trier of fact determines witnesses’ credibility. People v. Ortiz, 196 Ill. 2d 236, 259
(2001). We will not set aside a conviction unless the evidence is so improbable or
unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt. People v.
Cox, 195 Ill. 2d 378, 387 (2001).
In a prosecution for driving a vehicle under the influence of alcohol, the State
must establish that (1) the defendant was in actual physical control of a vehicle, and (2)
was under the influence of alcohol at the time. 625 ILCS 5/11-501(a)(2) (West 2006). In
order to prove that defendant was under the influence, the State must prove that as a
result of consuming alcohol or any intoxicating compound, the defendant was unable to
“ ‘think or act with ordinary care.’ ” Quoting Illinois Pattern Jury Instructions, Criminal,
No. 23.29 (4th. ed. 2000). People v. Bostelman, 325 Ill. App. 3d 22, 34 (2001); The
State need not present chemical evidence of intoxication in the form of a Breathalyzer or
blood test to obtain a conviction; rather, the credible testimony of the arresting officer
may be sufficient to prove the offense. People v. Janik, 127 Ill. 2d 390, 402 (1989).
Additionally, a trial court may find a conviction for driving under the influence of
alcohol based on circumstantial evidence. People v. Toler, 32 Ill. App. 3d 793, 799
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No. 1-06-2690
(1975). Circumstantial evidence is proof of certain facts and circumstances from which
the fact finder may infer other connected facts which usually and reasonably follow from
the human experience and is not limited to facts that may reasonably have alternative,
innocent explanations. People v. Garriott, 253 Ill. App. 3d 1048, 1052 (1993). The State
bears the burden of proving each element of the charged offense beyond a reasonable
doubt. People v. Bostelman, 325 Ill. App. 3d 22, 33 (2001).
After weighing the evidence in the light most favorable to the prosecution, we
cannot say the evidence was so improbable or unsatisfactory as to raise a reasonable
doubt as to defendant’s guilt. The evidence presented against defendant was sufficient to
convict defendant, without considering the statement (admission) made by defendant at
the police station that he had consumed two beers and the findings of the HGN test.
After “curbing” defendant’s vehicle, Officer Tyler observed defendant with
bloodshot eyes, “mumbled” speech, and a “moderate” odor of alcohol. The officer’s
testimony that defendant failed to complete a one-leg-stand test and that the defendant
exhibited a balance problem as he exited his vehicle was undisputed. Based on the
officer’s experience in observing people under the influence of alcohol, the officer
opined that the defendant was driving a vehicle under the influence of alcohol. Finally,
defendant refused to submit to a Breathalyzer test, which is circumstantial evidence of a
defendant’s consciousness of his own guilt. People v. Garriott, 253 Ill. App. 3d 1048,
1052 (1993). These facts, in combination, present sufficient evidence to conclude that a
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No. 1-06-2690
reasonable trier of fact could have found defendant guilty of driving a vehicle under the
influence of alcohol beyond a reasonable doubt.
As noted, defendant offered no evidence in this case and did not testify on his
own behalf. On cross-examination, Tyler conceded that there could be alternative,
innocent explanations for the evidence presented against defendant. In closing
arguments, defendant, through his attorney, underscored several of these potential
explanations. Defendant suggested that his bloodshot eyes could have been caused by
allergies or a cold; argued that defendant was overweight, thus had difficulty smoothly
exiting the vehicle and successfully performing the one-leg-stand test; argued that
defendant speaks with an accent, thus the officer perceived his accent as “mumbled
speech.” However, defendant’s closing argument is not evidence and cannot be
considered as evidence. People v. Perry, 224 Ill. 2d 312, 348 (2007). It is true that
Officer Tyler testified that factors other than intoxication, such as fatigue, could
contribute to poor performance of field sobriety tests. However, no evidence in the
record suggests that defendant was actually fatigued when he was asked to perform the
field sobriety tests administered by Officer Tyler.
The burden of proof was on the State to prove the defendant guilty beyond a
reasonable doubt. The defendant has no burden and need not testify or present any
evidence, and he exercised that privilege. However, in this case the evidence presented
by the State, consisting of the officer’s testimony, constituted sufficient evidence to
convict when the trial court found the officer’s testimony credible.
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No. 1-06-2690
In light of the foregoing, we find that the evidence presented in this case before
the trial court was not so improbable or unsatisfactory that it created a reasonable doubt
as to defendant’s guilt of driving a vehicle under the influence of alcohol.
Defendant next contends that his trial counsel was ineffective. Specifically,
defendant contends that (1) his counsel was ineffective for failing to move the trial court
to suppress his statement that he had consumed two beers, after invoking his right to
remain silent, and (2) for failing to move the trial court to conduct a Fyre hearing before
hearing testimony regarding the HGN test results, and (3) for failing to object to the HGN
test results.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show
that his attorney committed such serious errors as to fall beyond an objective standard of
reasonableness, and that, without those objectively unreasonable errors, there was a
reasonable probability that his trial would have resulted differently.” This is a two-prong
test. People v. Ward, 371 Ill. App. 3d 382, 434 (2007), citing Strickland v. Washington,
466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68 (1984); People
v. Albanese, 104 Ill. 2d 504, 526 (1984). “In Strickland, the United States Supreme
Court delineated the two-prong test to use when evaluating whether a defendant was
denied the effective assistance of counsel in violation of the sixth amendment.”
(Emphasis added.) People v. Bell, 373 Ill. App. 3d 811, 821 (2007). “Under Stickland, a
defendant must demonstrate that counsel’s performance was deficient and that such
deficient performance substantially prejudiced defendant.” Bell, 373 Ill. App. 3d at 821,
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No. 1-06-2690
citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Our Illinois
Supreme Court has stated that to demonstrate performance deficiency, a defendant must
establish that counsel’s performance was below an objective standard of reasonableness.
People v. Edwards, 195 Ill. 2d 142, 163 (2001). In evaluating sufficient prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding[s] would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
As noted, defendant’s first contention under Strickland is that defense counsel
was ineffective for failing to move the trial court to suppress defendant’s statement at the
police station that he had consumed two beers.
To protect an individual’s right not to be a witness against himself, found in both
the United States and Illinois Constitutions (see U.S. Const., amend. V; Ill. Const. 1970
art. I, §10), interrogation must cease once the individual indicates in any manner and at
any time prior to or during a custodial interrogation that he wishes to remain silent.
People v. Edwards, 301 Ill. App. 3d 966, 977 (1998), citing Miranda v. Arizona, 384 U.S.
436, 444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612 (1966). “[A]ny statement taken
after the person invokes his privilege cannot be other than the product of compulsion,
subtle or otherwise.” Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628.
This right to silence may be invoked either verbally or through conduct that
clearly indicates a desire to end all questioning. See People v. Nielson, 187 Ill. 2d 271,
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No. 1-06-2690
287 (1999) (finding the defendant had invoked his right to remain silent when he placed
his hands over his ears, turned his head, and chanted “nah nah nah”). If verbal, the
individual’s demand to end the interrogation must be specific. See People v. Pierce, 223
Ill. App. 3d 423, 429 (1991). It is undisputed here that defendant invoked his right to
remain silent.
Upon being informed of his rights, including his right to remain silent, defendant
stated that he desired to answer no more questions. Immediately upon invocation of his
right to remain silent, defendant was asked if he had consumed any alcohol that day.
Defendant responded that he had consumed two beers and was going out for more prior
to being pulled over.
We can imagine no clearer example of a violation of defendant’s right to remain
silent. Once a suspect invokes his right to remain silent, interrogation must immediately
cease. People v. R.C., 108 Ill. 2d 349, 353 (1985). Rather than terminating the
interrogation immediately, which is what Miranda requires, the officer instantaneously
asked defendant if he had consumed any alcohol.
Although the statement was taken in violation of Miranda, counsel’s failure to
object to the admission of the statement cannot necessarily be said to fall below an
objective standard of reasonableness. Even though the statement that defendant had
consumed two beers was a clear result of a Miranda violation, this court cannot say that
the first prong of the Strickland test was satisfied. It may have been sound trial strategy
to allow that evidence to stand and either argue to the court that two beers did not contain
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No. 1-06-2690
enough alcohol to affect defendant’s operation of the automobile when no unusual
driving was evident or conclude that the trial court reasonably could find that two beers
did not effect the defendant’s operation of his automobile. Ward, 371 Ill. App. 3d at 434
(a mistake in trial strategy or tactics, without more, does not amount to ineffective
assistance of counsel); People v. Palmer, 162 Ill. 2d 465, 476 (1994) (counsel’s trial
strategy is "virtually unchallengeable").
However, even if counsel’s failure to move to suppress this evidence satisfies the
first prong, defendant cannot satisfy the second prong of his ineffective assistance of
counsel claim because he was not sufficiently prejudiced by his counsel’s failure to move
to suppress the station house statement. As noted, under the second prong of the
Strickland standard, the defendant must show that, “but for” counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would
have been different. People v. Colon, 225 Ill. 2d 125, 135 (2007); People v. Evans, 209
Ill. 2d 194, 220 (2004). “[A] reasonable probability that the result would have been
different is a probability sufficient to undermine confidence in the outcome – or put
another way, that counsel’s deficient performance rendered the result of the trial
unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135.
As explained above, even if the station house statement were suppressed, it is not
likely that the result of the trial would have been any different. In light of the
overwhelming evidence of defendant’s guilt including the officer’s testimony regarding
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No. 1-06-2690
his observations and defendant’s own refusal to take a Breathalyzer, we find defendant
cannot satisfy the second prong of the Strickland test.
Defendant then argues that his counsel was ineffective for failing to move the trial
court to conduct a Frye hearing to determine the admissibility of the HGN test results.
General acceptance in the scientific community was established as the
foundational test for the admission of scientific evidence in Frye v. United States, 293 F.
1013, 1014 (D.C. Cir. 1923), a case involving the admissibility of polygraph tests:
“Just when a scientific principle or discovery crosses the
line between the experimental and demonstrable stages is
difficult to define. Somewhere in this twilight zone the
evidential force of the principle must be recognized, and
while the courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific
principle or discovery, the thing from which the deduction
is made must be sufficiently established to have gained
general acceptance in the particular field in which it
belongs.” Frye v. United States, 293 F. at 1014.
The Illinois Supreme Court recently held that a Frye hearing must be held to
determine if the HGN test has been generally accepted as a reliable indicator of alcohol
impairment. People v. McKown, No. 102372, slip op. At 2 (September 20, 2007).
Based on our supreme court’s decision in McKown, it is now clear that defense counsel
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No. 1-06-2690
should move for a Fyre hearing, so that the trial court can determine whether the results
of the HGN test are admissible. However, on the date of this trial, the existing case law
did not require a Frye hearing for the admissibility of the HGN test (People v. Robinson,
349 Ill. App. 3d 622 (2004)). As a result, this court cannot say that the failure to request
a Frye hearing was a serious error that fell below an objective standard of reasonableness
sufficient to satisfy the first prong of the Strickland test.
In addition, even if the first prong of the Strickland test were satisfied, the
admission of this evidence would be harmless error. “ ‘[W]hen the competent evidence
in the record establishes the defendant’s guilt beyond a reasonable doubt and it can be
concluded that retrial without the erroneous admission of the challenged evidence would
produce no different result,’ ” the admission of the improper evidence can be considered
harmless error. McKown, Slip op. At 26. Quoting People v. Arman, 131 Ill. 2d 115, 124
(1989).
In the case at bar, even if the results of the HGN test were not admitted into
evidence, it is not likely that the result of the trial would have been any different. In light
of the overwhelming evidence of defendant’s guilt from the officer’s testimony regarding
his observations, and, his opinion based on those observations that defendant was driving
a vehicle under the influence of alcohol, together with defendant’s refusal to take a
Breathalyzer, we find that if the admission of the HGN results without first conducting a
Frye hearing to determine its admissibility was error, it was harmless.
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No. 1-06-2690
Defendant then argues that his trial counsel was ineffective for failing to object to
the admission of the results of the HGN test because the State failed to lay a proper
foundation.
To lay a proper foundation for the admission of HGN results, the State needs to
demonstrate (1) that the officer who administered the test was trained in the procedure
and (2) that the test was properly administered. People v. Basler, 193 Ill. 2d 545, 552
(2000). The State’s evidence included Tyler’s testimony that he administered the test
following the “book” and the “three guidelines” that he learned at the police academy,
although he testified that he could not remember the third guideline at trial. Tyler also
testified that when he moved his pen from side-to-side, defendant’s eyes exhibited
nystagmus. The State agrees that the foundation for the admission of the HGN test
results was lacking. However, we are persuaded by the State’s argument that defense
counsel’s failure to object to the admission of the HGN test results could have been
sound trial strategy.
A review of the record reveals that defense counsel attacked Officer Tyler’s
credibility during closing arguments, specifically highlighting the officer’s inability to
recall the third guideline when administering an HGN test. We find defense counsel’s
decision not to object to the admission of this evidence, so defendant could later attack
the credibility of the officer during closing arguments, to be sound trial strategy. Palmer,
162 Ill. 2d at 476. As a result, defendant cannot satisfy the first prong of the Strickland
test.
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No. 1-06-2690
Even if defense counsel had made the objection to the foundation of the HGN
evidence and that objection was sustained, counsel’s failure to object would not have
resulted in a different trial outcome, as mandated by the second prong of the Strickland
test. People v. Evans, 186 Ill. 2d 83, 93 (1999). This court cannot say that there is a
reasonable probability of a different outcome because, even if defense counsel had
opposed the admission of the HGN test, it is likely that the State would have immediately
cured the foundation deficiency by asking more questions concerning Tyler’s knowledge
and experience with the HGN test. Even if the State did not cure the foundational
deficiencies for admission of the HGN results, this court cannot say that the second prong
of the Strickland test would have been satisfied.
Looking at the totality of the evidence, the trial court observed Tyler’s demeanor,
found him to be credible, and gave credence to the aggregate evidence at trial that
showed that defendant was driving a vehicle under the influence of alcohol, aside from
the results of the HGN test. We conclude that counsel’s failure to object to the admission
of the HGN test results did not “undermine confidence in the outcome” of the trial, and
would have not changed the result. Strickland, 466 U.S. at 694, 80 L.Ed. 2d at 698, 104
S. Ct. at 2068.
In addition, defendant argues that the trial court’s mittimus should be corrected to
accurately reflect the correct total of fines, fees, and costs.
Defendant was ordered to pay fines and fees that included charges of: $190
(felony complaint filed), $60 (felony complaint conviction, $20 (preliminary hearing),
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No. 1-06-2690
$200 (state DNA identification system), $20 (automation), $15 (document storage), $15
(court services), $5 (court system), $1,000 (DUI – law enforcement – subsequent
offense), $30 (court system), $150 (crime lab DUI analysis), $100 (trauma fund), and $5
(spinal cord trauma fund). The trial court’s mittimus incorrectly states that these fines,
fees, and costs add up to $1,905, rather than the correct sum of $1,805. Defendant argues
that the trial court erred by ordering a $150 crime law DUI analysis fee, since no analysis
occurred in this case. We agree. Under section 5-9-1.9 of the Unified Code of
Corrections (730 ILCS 5/5-9-1.9 (West 2006)) a $150 crime lab DUI analysis fee should
be assessed in each case where a laboratory analysis occurs. Since no DUI analysis
occurred here, the $150 fee must be vacated.
In addition, defendant argues that he is entitled to a $5-per-day credit toward the $1,000
“DUI – Law Enforcement – Subsequent Offense” fine. We agree. Section 11-501(j)
states that a person found guilty of driving a vehicle under the influence of alcohol shall
be fined $1,000 when the person has previously been convicted of this same offense or a
similar provision of a local ordinance. 625 ILCS 5/11-501(j) (West 2006). This fine is
subject to the mandatory credit of $5 for each day that the defendant was incarcerated.
725 ILCS 5/110-14(a) (West 2004). Accordingly, defendant was incarcerated 44 days
and is entitled to a $220 credit toward the $1,000 fine.
Finally, defendant argues that the mittimus should be corrected to reflect the
conviction of only one count of aggravated driving a vehicle under the influence of
alcohol to accurately reflect the trial court’s oral pronouncement that the other counts in
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the information would merge with the first. We agree with defendant and find that the
mittimus should be corrected to reflect the proper sentence imposed by the court.
Remandment to the trial court is unnecessary in this case since this court has the
authority to directly order the clerk of the circuit court, criminal division, to make the
necessary corrections. 134 Ill. 2d R. 615(b)(1); People v. McCray, 273 Ill. App. 3d 396,
403 (1995). Accordingly, this court directs said clerk (a) to correct the mittimus to
reflect defendant was convicted of one count of aggravated driving a vehicle under the
influence of alcohol, and (b) to correct the trial court’s mittimus to accurately reflect that
all fines, fees, and costs with credits result in $1,435 assessed against defendant.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court of Cook
County as modified. We vacate the $150 crime lab DUI analysis fine and find that all
fines, fees, and costs, with credits, result in $1,435 assessed against defendant.
Affirmed as modified.
WOLFSON and GARCIA, JJ., concur.
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