People v. Ciborowski

2016 IL App (1st) 143352

FIFTH DIVISION
JUNE 3, 2016

No. 1-14-3352

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
) No. YW267981
v. ) No. YW267982
)
PAUL CIBOROWSKI, ) The Honorable
) Richard Schwind,
Defendant-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 After a bench trial, defendant Paul Ciborowski was found guilty of

driving under the influence of drugs (DUI) and of failing to reduce speed to

avoid an accident, and was sentenced to two years of probation and a suspended

sentence of 364 days’ incarceration. Defendant’s conviction stemmed from a

three-vehicle collision in Palatine, Illinois, on March 22, 2013.
 No. 1-14-3352

¶2 On appeal, defendant contends, first, that the trial court erred when it

denied his motion to suppress evidence based on a lack of probable cause that

he was driving under the influence of drugs. Second, defendant contends that

the trial court abused its discretion when it allowed Palatine Police Sergeant

Gregory Hart’s testimony for the limited purpose of discussing the general

effects of the prescription drugs, citalopram and quetiapine. Lastly, defendant

claims that the evidence was insufficient to show whether he was under the

influence of drugs to a degree that it rendered him incapable of driving safely.

¶3 For the following reasons, we affirm the trial court’s denial of

defendant’s motion to suppress and find that the trial court did not abuse its

discretion when it allowed testimony from a drug expert witness to testify as to

his opinion on the effects of certain drugs on individuals. The parties refer to

this expert as a drug recognition expert. Lastly, we conclude that there was

sufficient evidence to support defendant’s conviction. Accordingly, we affirm

defendant’s conviction.

¶4 BACKGROUND

¶5 I. The Charges

¶6 Defendant was issued three separate traffic citations as a result of his

involvement in the three-vehicle collision. Defendant was charged with:

(1) failing to reduce his speed to avoid a collision (625 ILCS 5/11-601(a) (West

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2014)); 1 (2) driving under the influence of drugs (625 ILCS 5/11-501(a)(4)

(West 2014)); 2 and (3) failing to provide proof of valid insurance (625 ILCS

5/3-707(b) (West 2014)).3 The arresting police officer also noted on the

citations that defendant was driving in excess of the 30 miles per hour speed

limit at the time of the collision.

¶7 II. Defendant’s Pretrial Motions

¶8 On April 1, 2014, defendant filed a petition to rescind his statutory

summary suspension.4 Defendant alleged: (1) that Officer Bruce Morris did not

properly place him under arrest for an offense as defined in section 11-501 of

the Illinois Vehicle Code (625 ILCS 5/11-501.1 (West 2014) (driving under the

influence of alcohol or drugs)) or similar provision of a local ordinance; (2) that

Officer Morris did not have reasonable grounds to believe that defendant was

driving or in actual physical control of a motor vehicle while under the

influence of alcohol and/or other drugs, or a combination of them; (3) that

1
“Speed must be decreased as may be necessary to avoid colliding with any
person or vehicle ***.” 625 ILCS 5/11-601(a) (West 2014).
2
“A person shall not drive *** under the influence of any *** drug or
combination of drugs to a degree that renders the person incapable of safely
driving ***.” 625 ILCS 5/11-501(a)(4) (West 2014).
3
“Any person who fails to comply with a request by a law enforcement
officer for display of evidence of insurance *** shall be deemed to be operating an
uninsured motor vehicle.” 625 ILCS 5/3-707(b) (West 2014).
4
Defendant certified that the statements set forth in his petition were “true
and correct.”

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 No. 1-14-3352

Officer Morris did not properly warn defendant as required by section 11-

501.1(c) of the Illinois Vehicle Code (625 ILCS 5/11-501.1(c) (West 2014));5

(4) that defendant did not refuse to submit to and/or complete the required

chemical test or tests, pursuant to section 11-501.1(c) of the Illinois Vehicle

Code (625 ILCS 5/11-501.1(c) (West 2014)) upon the request of the arresting

officer; (5) that the notice of summary suspension was not sworn to under oath

as required by statute; (6) that defendant did not receive proper service of the

citations issued; and (7) that the tests given to defendant did not conform to the

requirements imposed by the Illinois Department of Health.

¶9 On May 9, 2014, defendant filed a motion to quash his arrest and

suppress evidence for lack of probable cause. Defendant argued that his arrest

was improper and the evidence obtained during it must be suppressed because:

(1) Officer Morris was not justified in prolonging the traffic stop and detaining

defendant in order to determine whether defendant was under the influence of

drugs; (2) Officer Morris asked defendant to exit his vehicle without reasonable

suspicion that defendant was driving under the influence of alcohol or drugs;

and (3) Officer Morris was not a drug recognition expert and therefore did not

5
“A person requested to submit to a test *** shall be warned by the law
enforcement officer requesting the test that a refusal to submit to the test will result
in the statutory summary suspension of the person’s privilege to operate a motor
vehicle ***.” 625 ILCS 5/11-501.1(c) (West 2014).
4
 No. 1-14-3352

have the requisite skills or training to testify regarding whether someone was

under the influence of drugs.

¶ 10 III. Pretrial Hearing

¶ 11 On May 9, 2014, the trial court held a hearing on defendant’s petition and

motion to suppress. Officer Morris testified that he was dispatched to a three-

vehicle collision. After arriving on the scene within minutes of the accident and

speaking with the three drivers involved in the collision including defendant,

the officer concluded that defendant had caused the accident by rear-ending the

vehicle in front of him. Officer Morris testified that defendant’s vehicle

sustained severe damage to its front end, was leaking fluid, and was inoperable.

¶ 12 Officer Morris testified that, during his initial conversation with

defendant, who was seated in the driver’s seat, defendant gave conflicting

answers about where he lived. Defendant initially told Officer Morris that he

lived in Arlington Heights and then told him that he lived in Palatine, Illinois.

Defendant also gave conflicting answers about how the accident occurred. First,

defendant admitted that he had struck the vehicles in front of him with his

motor vehicle and then he claimed that the vehicles had struck his vehicle.

When the officer asked defendant for an insurance card, defendant handed him

his AARP bond card.

¶ 13 Officer Morris described defendant as having a disheveled appearance:

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“ASSISTANT STATE’S ATTORNEY (ASA): And his general–He

was disheveled, wasn’t he?

OFFICER MORRIS: Yes. His shirt was untucked and unbuttoned and

his hair was mussed, and–

ASA: And his general movements, they seemed deliberate and

lethargic, didn’t they?

OFFICER MORRIS: Yes, they did.”

¶ 14 Officer Morris testified that he eliminated the possibility that defendant

was under the influence of alcohol because defendant did not have the odor of

alcohol on his breath, and did not have bloodshot or glassy eyes. Officer Morris

never suspected defendant of being under the influence of cannabis, nor did he

observe any type of controlled substance.

¶ 15 Officer Morris testified that he asked defendant to step out of his

damaged vehicle and sit in the backseat of the police vehicle, in order to ensure

defendant’s safety as the officer prepared a crash report. During this time,

Officer Morris and defendant were engaged in a free-flowing conversation, and

the officer observed that defendant’s pupils were dilated and that defendant had

difficulty keeping his eyes open. Defendant looked sleepy and his speech was

mush-mouthed and slurred. Officer Morris inquired whether defendant was

taking any drugs:

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“ASA: And then you asked him if he had taken any drugs, right?

OFFICER MORRIS: I asked him if he were–Yeah. If he were

prescribed medication.

ASA: And he told you that he takes Zoloft, Ambien, and Celexium,

correct?

OFFICER MORRIS: That was his statement at the time.”

¶ 16 Officer Morris then asked defendant to take field sobriety tests. The first

test was the horizontal gaze nystagmus (HGN) test where the officer looks into

defendant’s eyes with a flashlight. During this test, defendant was wobbling,

waving, swaying, and had a hard time standing up, to the point where the

officer was concerned that defendant would fall over and onto the pavement.

The second test was the walk-and-turn test. Defendant could not walk heel-to-

toe, could not remember directions, took 18 steps instead of 9 steps, swayed

while walking, and had a hard time keeping his balance. Officer Morris

terminated the test to ensure his and defendant’s safety. The third test was the

one-leg stand test. During this test, defendant leaned against the police vehicle

and fell over before even attempting the test. Defendant had to be helped to

prevent a fall, during each of the three times that he attempted to lift his foot.

Again, Officer Morris terminated the test to ensure his and defendant’s safety.

After defendant’s performance on these three field sobriety tests, Officer Morris

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arrested defendant because he “believed that based on the totality of the

circumstances that he was under the influence of some kind of drug.”

¶ 17 Officer Morris testified that, although he worked extensively in illegal

narcotics, he never dealt specifically with prescription medication. Throughout

his career with the Palatine police department, he had observed people under

the influence of alcohol. Officer Morris received training at the police academy

on drug and alcohol detection. However, he was not a drug recognition expert.

¶ 18 On cross-examination, Officer Morris testified that, in his professional

experience, he had observed hundreds of people under the influence of drugs.

The spectrum of drugs ranged from illegal drugs “such as cocaine and crack

[where] you get erratic, irrational behavior” to “the other end of the spectrum

such as anti-depressants and sleeping aids, [where] you get people that are tired

and sleepy.”

¶ 19 On redirect examination, Officer Morris testified about his knowledge of

the prescription drugs Zoloft, Ambien, and Celexium, and their side effects:

“DEFENSE COUNSEL: What is Zoloft?

OFFICER MORRIS: I want to say an anti-depressant?

DEFENSE COUNSEL: Do you know?

OFFICER MORRIS: I can’t say for certain.

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No. 1-14-3352

DEFENSE COUNSEL: Do you know what effect it has on

someone?

OFFICER MORRIS: Well, if it’s an anti-depressant that would

indicate that somebody is feeling down and sad, and Zoloft would probably

perk them up.

DEFENSE COUNSEL: That is assuming it is an anti-depressant?

OFFICER MORRIS: Yes; that’s assuming.

DEFENSE COUNSEL: What effects does it have on someone’s

cognitive abilities?

OFFICER MORRIS: No idea.

DEFENSE COUNSEL: What effect does it have [on] someone’s

ability to drive?

OFFICER MORRIS: I don’t know.

DEFENSE COUNSEL: What about Ambien? What is Ambien?

OFFICER MORRIS: I believe it’s a sleeping aid.

DEFENSE COUNSEL: And do you know or do you believe?

OFFICER MORRIS: Based on what I have seen on television and

with the commercials and what not.

DEFENSE COUNSEL: So it’s not based on any training?

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No. 1-14-3352

OFFICER MORRIS: No, sir.

DEFENSE COUNSEL: Okay. And of all the people that you have

arrested, how many for driving under the influence of something or being

under the influence of drugs? Because you testified during your cross that

you have seen individuals under the influence of drugs, how many people

have been under the influence of Ambien?

OFFICER MORRIS: Maybe a handful. People use it to kill

themselves or try to kill themselves, rather.

DEFENSE COUNSEL: It’s a prescription medication?

OFFICER MORRIS: Yes.

DEFENSE COUNSEL: So people take it for something other than

suicide?

OFFICER MORRIS: Yes.

DEFENSE COUNSEL: And Zoloft how many people have you seen

under the influence of Zoloft?

OFFICER MORRIS: I couldn’t say–None.

DEFENSE COUNSEL: You indicated as a last one Celexium or

possibly Celexa, right?

OFFICER MORRIS: Yes.

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DEFENSE COUNSEL: What is that?

OFFICER MORRIS: I have no idea.

DEFENSE COUNSEL: Is it a medication?

OFFICER MORRIS: I believe so. Yeah, I mean, I asked him if he had

any prescription–if he was on any prescription medications and he said

Celexium. So I presumed that is a prescription medicine.

DEFENSE COUNSEL: And you wouldn’t know what effects that

would have on a human being?

OFFICER MORRIS: No, sir. I wouldn’t.”

¶ 20 The trial court reserved its ruling, and allowed each party to research

additional case law, and continued the matter until May 19, 2014.

¶ 21 IV. Trial Court’s Ruling

¶ 22 On May 19, 2014, the trial court: (1) denied defendant’s petition to

rescind his statutory summary suspension; and (2) denied the motion to quash

his arrest and suppress evidence. The trial court reviewed the evidence in detail

and found:

“THE COURT: [Officer Morris] testified he’s been a police officer

for 14 years. Three of those years he served in the gang unit, where he’s

observed hundreds of people under the influence of drugs, including

several under Ambien.
11
No. 1-14-3352

It’s clear that officers may rely on their training and experience to

draw certain inferences and make deductions that might elude an

untrained person. He was dispatched to a three-car crash where he

determined the defendant rear-ended the car that was in front of him and

then pushed that car into the car in front of that car. The defendant

refused treatment, stated he had no injuries and no impairments; that he

did tell the officer he was taking prescription medications; that the officer

noted he had slurred speech; he was mush-mouthed; he was sleepy; that

he said he hit other vehicles at first and then he later changed that to that

the vehicles him; that he gave two different locations where he lived; that

he gave different areas of where he was going, roads he was going to

travel on, roads that didn’t intersect each other; that when asked for an

insurance card, he gave his AARP card, and on several occasions gave it

back to the officer; that his shirt was untucked, it was unbuttoned; his

hair was mussed; he was deliberate and lethargic, appeared confused; his

pupils were dilated; he had a hard time keeping his eyes open. He told the

officer he was taking Zoloft, Ambien, which the officer believed to be a

sleeping aid, and [Celexium]; that he had a hard time standing. And

again, the arguments that counsel makes about the field sobriety tests

may be persuasive arguments as to the guilt, but I think as to the officer’s

12
No. 1-14-3352

observations of what the defendant was doing would go towards

reasonable grounds. And here, while performing the HGN test, the

defendant was wobbling, waving, had a hard time keeping in position;

that during the walk-and-turn test he did not touch heel-to-toe. He took

18 steps forward instead of nine, and then couldn’t remember what to do,

couldn’t keep his balance, and at that point the officer had to terminate

the test for safety reasons. During the one-leg-stand test, he lost his

balance. He had to be caught by the officers, and they had to put him on

the hood of the car. He swayed; he lifted his arms; that he put his foot

down on numerous occasions and almost fell over.

Again, the officer testified he’s seen hundreds of people under the

influence of drugs, including several under Ambien, and the observations

he made of the defendant were consistent with someone he believed to be

under the influence of drugs.

I had an opportunity to judge his demeanor and manner while

testifying. I found him to be very credible. He answered the questions in

a very credible manner. He didn’t try and alter answers or try and be

argumentative. When he didn’t know something, he didn’t know

something. He was very honest in all of his responses. I think under these

factual considerations, the officer made a reasonable and prudent

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circumstances looking at the prudent decision based upon the totality of

the circumstances, the facts known to him were sufficient to lead a

reasonably cautious person to believe that the defendant committed a

crime. So the petition to rescind will be denied *** the motion to quash

for the same reasons will be denied.”

¶ 23 V. Evidence at Trial

¶ 24 On July 16, 2014, defendant's bench trial commenced. The State’s

evidence consisted of the testimony of four witnesses: (1) David Nielsen, one of

the drivers involved in the three-vehicle crash; (2) Officer Morris, the arresting

police officer; (3) Cynthia Woods, a toxicologist with the Illinois State Police,

and (4) Sergeant Gregory Hart of the Illinois State Police.

¶ 25 A. David Nielsen

¶ 26 David Nielsen, one of the other drivers, testified that, at 4:55 p.m. on

March 22, 2013, he was involved in a three-vehicle accident on Dundee Road,

west of Hicks Road in Palatine, Illinois. While his vehicle was stopped in

traffic, it was hit by another vehicle, and, as a result of the impact, his vehicle

struck the rear of the vehicle in front of him. Nielsen exited his vehicle and

confirmed that another vehicle had hit his vehicle from behind. He observed

that the back-end rear bumper of his vehicle was pushed in extensively and that

the front license plate of the vehicle behind him was lodged around the exhaust

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pipe of his vehicle. In court, Nielsen identified defendant as the driver of the

vehicle that struck his vehicle. After the accident, Nielson approached

defendant and asked him “if he was okay and what happened.” Nielson

described defendant as “[not] very alert, [not] very cognitive or very alert.”

Nielsen recalled his surprise that defendant did not exit his vehicle to observe

what had happened, but then Nielsen noticed defendant’s disheveled

appearance. Nielsen called the police, who arrived approximately five minutes

later. While Nielsen was waiting for the police to arrive, defendant did not exit

his vehicle.

¶ 27 On cross-examination, Nielsen testified that there were three vehicles

involved in the accident, that the damage to all three vehicles was significant

and that the damage to his vehicle would cost roughly $10,000 to repair. As to

the damage to defendant’s vehicle, the front bumper was pushed in and there

was liquid flowing out of the radiator. Nielsen did not know why defendant was

not alert. Nielsen had never observed defendant prior to this occasion and

Nielsen was unable to determine whether defendant was injured in the accident.

¶ 28 B. Police Officer Bruce Morris

¶ 29 Officer Morris testified that he had been employed with the Palatine

police department for 15 years. At 4:55 p.m. on March 22, 2013, Officer Morris

was dispatched to a traffic accident involving three vehicles. In court, Officer

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Morris identified defendant as the driver of one of the vehicles involved in the

collision. Officer Morris testified that defendant was driving the easternmost

vehicle, and the other two vehicles involved in the accident were in front of him

proceeding westbound on Dundee Road. The second vehicle involved in the

accident belonged to Nielsen, and Officer Morris identified Nielsen in court.

¶ 30 Officer Morris testified that he determined defendant had rear-ended

Nielsen’s vehicle based on his observation that defendant’s license plate was

stuck to Nielsen’s vehicle. Defendant was sitting in the driver’s side of his

vehicle and appeared “lethargic and tired” with “disheveled” clothes. Officer

Morris asked defendant for his driver’s license and insurance card and

defendant fumbled through his stack of cards and produced an AARP bond

card.

¶ 31 Officer Morris then asked defendant to exit his vehicle and sit in his

squad vehicle to ensure defendant’s safety. When Officer Morris asked

defendant how the accident occurred, defendant initially responded that he

struck the vehicle in front of him. Then, defendant stated that the “vehicle

struck him.” When the officer asked defendant where he lived, defendant

initially responded that he lived in Arlington Heights; but then, defendant

claimed that he lived in Palatine. Officer Morris observed that defendant’s

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vehicle was leaking fluid and was rendered inoperable and that the damage to

the front of defendant’s vehicle was severe.

¶ 32 Officer Morris and defendant engaged in a conversation while defendant

was seated in the backseat of Officer Morris’s squad vehicle. Officer Morris

made the following observations about defendant’s appearance:

“ASA: Did you at this point make any observation about his eyes?

OFFICER MORRIS: His pupils appeared to be dilated.

ASA: Did he have an easy or difficult time keeping his eyes open?

OFFICER MORRIS: He appeared drowsy at times, almost falling

asleep with his eyelids closing.

ASA: How would you describe his speech?

OFFICER MORRIS: Deliberate, slow at times. I believe even

slurred. It was almost a year and a half ago.

ASA: Did he have an odor of alcohol emanating from his breath?

OFFICER MORRIS: I did not smell alcohol.

ASA: Were his eyes bloodshot and glassy?

OFFICER MORRIS: I did not observe that.

ASA: Did you smell an odor of cannabis from him?

OFFICER MORRIS: I did not.

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ASA: And at any point did the defendant attempt to give you

insurance again?

OFFICER MORRIS: Yes. He attempted to give me his AARP bond

card. Again, I explained to him that wasn’t what I was looking for.”

¶ 33 Officer Morris then inquired whether defendant was taking any drugs and

defendant responded that he was taking Zoloft, Ambien, and Celexium.

¶ 34 Officer Morris asked defendant where he was driving from prior to the

accident. Initially, defendant said he was coming from a Speedway gas station

and then said he was coming from Golf Road, Dundee Road, and Palatine

Road. Officer Morris stated that none of those roads intersect each other; they

are all east-west roads. Officer Morris asked defendant if he had any injuries

and then proceeded to administer sobriety tests.

¶ 35 Officer Morris first administered the HGN test. Defendant had a “hard

time” maintaining his balance. Defendant “was swaying,” had “difficulty

standing up,” and “was on the hood of [the] squad car.” Officer Morris testified

that, while administering the HGN test, he observed nystagmus.

¶ 36 The second test was the walk-and-turn test. Officer Morris instructed

defendant to “start with either foot,” “walk heel to toe nine paces out,” “pivot

on one foot and turn around,” and then “walk heel to toe nine paces out.”

Officer Morris demonstrated the walk-and-turn test to defendant. Defendant

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“failed to walk heel to toe with any of the steps going out.” Defendant took 18

steps instead of the 9 steps he was instructed to take. Defendant also failed to

pivot. Defendant “was swaying” and “having difficulty keeping [his] balance.”

¶ 37 The third and final test was the one-leg stand. The officer instructed

defendant to raise one foot approximately six inches off the ground, keep his

arms at his side and count out loud “1001, 1002, 1003, all the way up to 30.”

Before attempting this test, defendant leaned against the police vehicle for

support. Defendant failed the one-leg stand on each of his three attempts

because he kept placing his foot down before counting to 30. Officer Morris

terminated the test because defendant nearly fell over two times.

¶ 38 After defendant’s performance on the three field sobriety tests, Officer

Morris arrested defendant because “[b]ased on the totality of the circumstances

*** [the officer opined that defendant] was driving under the influence of some

kind of narcotic.” Officer Morris transported defendant to the Palatine police

department and read a “warning to motorist” to defendant. Defendant agreed to

submit to a blood and urine draw and then was transported to Northwest

Community Hospital for testing.

¶ 39 Once at the hospital, defendant waived his Miranda rights 6 and told

Officer Morris that he was operating a vehicle. When the officer asked

6
The record does not state how defendant waived his Miranda rights.
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defendant what street or highway he was on, defendant said Valentine Road,

then Palatine Road, and Arlington Heights Road. Officer Morris then asked

defendant what direction of travel he was in. Defendant responded “[e]ast.”

Officer Morris found defendant in the westbound lanes. Officer Morris asked

defendant where he was going; defendant responded “to get a soda pop.”

Officer Morris stated that this conflicted with previous answers defendant had

provided before defendant was Mirandized. Officer Morris described

defendant’s conflicting answers:

“ASA: What was his response before?

OFFICER MORRIS: That he was on Golf Road. He was on Palatine

Road. He was going to the Speedway.

ASA: Did you ever ask him what time it was?

OFFICER MORRIS: Yes.

ASA: What did he tell you?

OFFICER MORRIS: I believe he told me approximately 10:00 or

10:30.

ASA: What was the actual time?

OFFICER MORRIS: At the time of this questioning [it] was

approximately 6:31, 6:32 p.m.

ASA: Did you ask him what the date was?
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No. 1-14-3352

OFFICER MORRIS: Yes, I did.

ASA: What did he tell you?

OFFICER MORRIS: I believe the 17th or 18th.

ASA: What was the actual date?

OFFICER MORRIS: The 22nd.

ASA: Did you ask him what day of the week it was?

OFFICER MORRIS: Yes.

ASA: What was his response?

OFFICER MORRIS: Thursday he said.

ASA: What was the actual day?

OFFICER MORRIS: Friday.

ASA: Did you ask him what he was doing for the last three hours?

OFFICER MORRIS: Yes.

ASA: What was his response?

OFFICER MORRIS: Sitting at a gas pump.

ASA: Did you ask him if he was drinking?

OFFICER MORRIS: Yes.

ASA: His response?

OFFICER MORRIS: No.

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ASA: Did you ask him if he was involved in an accident today?

OFFICER MORRIS: Yes.

ASA: What was his response to that?

OFFICER MORRIS: No.”

¶ 40 Officer Morris again gave defendant a Miranda warning advising him

that they would be “discussing things about the crash.” Defendant asked Officer

Morris if he had been involved in a crash and if he was going to lose his license.

Officer Morris also observed defendant speaking to himself. Officer Morris

recalled, “[defendant] talked about some narcotics or some prescription drugs

*** he was taking.”

¶ 41 Defendant submitted to testing at the hospital. Officer Morris observed

that the urine sample container was sealed, labeled, dated, and placed in a

sealed and labeled DUI kit. Officer Morris then took possession of the DUI kit

and transported it back to the police station where he placed it in a temporary

storage prior to it being sent to the State lab for testing.

¶ 42 Officer Morris was asked how many DUI drug investigations he had

been involved in; he responded “[n]ot many, a handful, I believe,” “maybe two,

maybe three.” The trial court allowed Officer Morris to render an opinion that

he believed defendant was “under the influence of some kind of narcotic.”

Officer Morris testified that he formulated his opinion based on his training and

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experience7 and observations of defendant, including his “lethargic behavior,”

inability to provide proper documentation, conflicting answers, appearance of

almost falling asleep in the backseat of the squad vehicle, dilated pupils,

incoherent answers, disheveled look, and failure of the field sobriety exams.

¶ 43 On cross-examination, Officer Morris testified that he did not observe

anyone driving when he arrived at the scene of the accident. However, the

accident involved significant impact based on the damage done to defendant’s

vehicle and the vehicle ahead of it. Officer Morris suspected defendant might be

injured as a result of the accident and observed that defendant provided

incoherent responses. Defendant stated that he takes Zoloft, Ambien, and

Celexium. Prior to the accident, Officer Morris never heard of Celexium. The

only information he knew regarding the side effects of these medications was

what he heard on television and not from what he learned in training or during

his career as a police officer. In his 15 years as a police officer, he had “maybe

three” DUI drug investigations. He conducted no narcotics investigations

involving Zoloft, Ambien, Celexium, Seroquel, and Gabapentin. In the past, he

had responded to calls for people who had attempted to overdose on sleeping
7
Officer Morris testified he was a gang investigator for three years and
“conducted numerous narcotics investigations.” He also “dealt with a lot of people
under the influence of illegal and legal narcotics through the course of [his] duties
as a 15-year police officer ***.” He investigated “numerous attempted overdoses
of narcotics” and “prescription narcotics,” and observed “the way people act and
respond when they’re under the influence at that time.”
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pills and that he had observed their behavior. He believed Ambien was a

sleeping pill based on his layman’s knowledge of what he had observed on

television.

¶ 44 Officer Morris eliminated the possibility that defendant was under the

influence of alcohol because defendant did not have the odor of alcohol, and he

did not have bloodshot and glassy eyes. Officer Morris never suspected

defendant was under the influence of cannabis.

¶ 45 Officer Morris admitted he was not a drug recognition expert. He was

unaware there is a 12-step process in order to assess a suspect accused of

driving under the influence of drugs. He did not conduct the Romberg balance

test or the finger-to-nose test. He did not examine defendant’s vital signs, blood

pressure, temperature, or pulse. Officer Morris was unaware if a drug would

impact someone’s temperature or pulse. Officer Morris did not conduct any

kind of darkroom examinations. He did not test defendant’s pupils under

different lighting. He also did not examine defendant’s muscle tone or check for

injection sites on defendant.

¶ 46 Officer Morris attempted to contact a drug recognition expert from the

department to come to the scene to conduct an examination. He initially thought

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 No. 1-14-3352

Officer Kalanka 8 had the requisite knowledge, but he did not. He was unaware

of anyone in the Palatine police department who was a drug recognition expert.

¶ 47 Officer Morris indicated that, during the HGN test, defendant had

difficulty standing. Officer Morris was unaware of whether this was a result of

the accident or whether defendant normally had difficulty standing. Officer

Morris had not observed defendant before and, therefore, was unable to tell the

trial court whether or not defendant had poor balance.

¶ 48 C. Cynthia Woods

¶ 49 Cynthia Woods, a toxicologist with the Illinois State Police, testified that

on August 13, 2013, she received a toxicology DUI kit containing two vials of

blood and two bottles of urine belonging to defendant.9 Woods performed tests

and found citalopram and quetiapine present in his urine sample. Woods

performed tests on defendant’s blood and found “no volatiles”:

“According to our [standard operating procedures], we test

blood for volatiles and urine for drugs unless, in the case of a

fatal accident or aggravated DUI, in some cases we also test the

blood for drugs, but in regular DUI cases we test blood for

8
The record does not state the officer’s first name.
9
Woods testified that defendant’s toxicology DUI kit arrived in her
laboratory on March 29, 2013.
25
 No. 1-14-3352

ethanol or methanol and that kind of volatile and the urine for

drugs.”

¶ 50 On cross-examination, Woods testified that her report did not state the

amount of citalopram and quetiapine detected in defendant’s urine sample.

Woods was also unable to testify to the amount of citalopram and quetiapine

found in defendant’s urine or how long these drugs remain in one’s system after

they are ingested. Some drugs remain in someone’s system for a longer period

than others. She was unaware of the half-life of citalopram and quetiapine, and

did not know when they were ingested by defendant or how long they remained

in his body.

¶ 51 On redirect examination, Woods testified as to the effects of quetiapine

and citalopram. As to quetiapine, Woods testified that she was familiar with

warnings that the drug can cause dizziness or drowsiness and that it was not

recommended to drive a vehicle if the driver was unaware of the drug’s effects.

As to citalopram, Woods testified that she was familiar with warnings that the

drug may cause dizziness, drowsiness, and lightheadedness.

¶ 52 On recross-examination, Woods testified that she was unaware of how

long it takes for the drug to take effect in the body once it is ingested or how

much of the drug someone would have to ingest in order to physically impair

his or her ability to drive. Different drugs have different effects on different

26
 No. 1-14-3352

people and the weight of an individual and what they drink might impact the

effect the drug has on the body.

¶ 53 D. Sergeant Gregory Hart

¶ 54 Sergeant Hart testified that he had been employed by the Illinois State

Police since 2002 and had approximately 19 years of law enforcement

experience. As a certified standardized field sobriety instructor, he taught at the

police academy, as well as conducted refresher courses for other troopers and

local police departments as needed. Sergeant Hart attended the police academy

and received training on how to administer and assess field sobriety tests. He

also trains others in field sobriety tests. Throughout his career, he investigated

approximately 75 DUI cases involving drugs. As a law enforcement officer he

has come into contact with drug users “close to a thousand, 500” times.

¶ 55 Defense counsel and the assistant State's Attorney stipulated that

Sergeant Hart was a drug recognition expert. However, defendant objected to

Sergeant Hart’s testifying about whether defendant was under the influence of

drugs based solely on Sergeant Hart’s review of reports and video footage. The

trial court summed up the issue as follows:

“THE COURT: I take it this [issue] was to whether or not the Court

feels that this officer is capable of testifying as to his opinion as to

27
 No. 1-14-3352

whether or not defendant was under the influence of drugs based upon

this witness’s expertise in drug recognition?

ASA: Yes.

DEFENSE COUNSEL: Correct.

THE COURT: There is no dispute that this witness can testify what a

person under the-under drugs would exhibit-outward signs would exhibit-

a person under certain drugs, whether they would exhibit certain signs; is

that correct?

DEFENSE COUNSEL: Correct.”

¶ 56 When asked about the training he received to be certified as a drug

recognition expert, Sergeant Hart responded that he had taken a drug

recognition course and studied seven different categories of drugs, including

central nervous system depressants. Sergeant Hart took a final exam, which

consisted of one written exam and 12 field studies that were evaluated by a

certified instructor. The field studies involved “consensual encounters with

individuals” alleged to be under the influence of drugs and performing tests on

them. The field testing consisted of a 12-step process, part of which was

observing subjects’ horizontal gaze nystagmus, measuring their pupil size in

different lighting conditions, and checking their pulse rates, blood pressures,

oral cavities, and nasal cavities. In addition, subjects were required to undergo a

28
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modified Romberg balance test, where they had to estimate the passage of 30

seconds with their eyes closed and their head titled back. Sergeant Hart testified

that one could form an opinion as to whether a person was under the influence

of drugs without completing all 12 steps.

¶ 57 The State called Sergeant Hart as an expert to explain the effects of

certain drugs. Sergeant Hart testified that a drug recognition expert might have

more knowledge than a police officer on the subject. Sergeant Hart completed

100 hours of intensive classroom training. He also went through a basic review

of field sobriety tests, human physiology, and drug pharmacology. This training

was in addition to the training that he received as a police officer. The expert

training is not training that a typical police officer would receive. Sergeant Hart

was asked about the evaluations that he performed on individuals as part of his

training. The evaluations were conducted in person.10

¶ 58 Sergeant Hart was questioned about a 12-step process used to determine

whether a person was under the influence of drugs. The first step of the 12-step

process was the breath alcohol test. In the event that there is no alcohol

involved and drugs are suspected, an officer called a drug recognition expert.

The second step of the process was to interview the arresting officer after he or

10
Sergeant Hart did not observe defendant driving or any admissions by
defendant. He rendered an opinion based on the reports and discussions he had
with the arresting officer.

29
 No. 1-14-3352

she effectuated the arrest. This allowed the arresting officer and expert to

discuss the subject’s behavior, appearance, and driving pattern. In this case,

Sergeant Hart did not conduct step 2 of the process after defendant’s arrest, but

instead used the reports in place of that step. The third step was to conduct a

preliminary examination of the subject including checking his or her pulse and

ascertaining whether he or she was suffering from an injury or other condition

unrelated to drugs. Sergeant Hart did not conduct this step and did not observe

defendant’s attitude, coordination, or speech. According to Sergeant Hart,

“somebody else” made these observations and relayed the message to him.

¶ 59 In this case, Sergeant Hart did not conduct: the fourth step, which

involves an eye examination of defendant for HGN, vertical gaze nystagmus

(VGN) and a lack of ocular convergence; 11 the sixth step, which involves

checking defendant’s vital signs including his blood pressure, temperature, and

pulse; the seventh step, which involves a darkroom examination to determine an

estimation of defendant’s pupil size under three different lighting conditions;

the eighth step, which involves examining defendant’s muscle tone; the ninth

step, which involves checking injection sites and defendant’s pulse a third time;

or the tenth step, which involves listening to the subject’s statements and

11
Sergeant Hart was not questioned about step 5 of the 12-step process. Step
5 involves psychophysical tests that assist in determining the suspect’s condition
and whether he/she is able to operate a vehicle safely.
30
 No. 1-14-3352

making his own observations.12 Instead, Sergeant Hart read the report in this

case and observed the video footage taken of the defendant at the scene of the

accident.

¶ 60 Sergeant Hart testified that he could render an opinion without

completing each of the 12 steps. He stated, “I don’t have all the steps, but based

off–from start to finish with the case, I would feel very comfortable in making

an opinion, absolutely.” 13

¶ 61 On the objection of defendant, the trial court barred Sergeant Hart from

rendering an opinion as to whether defendant was under the influence of

antidepressants, based on the sergeant’s review of police reports and the video

footage taken of defendant at the scene of the accident. The trial court allowed

Sergeant Hart to testify only “as an expert as to what the effects of

antidepressants may have on a person.” On cross-examination, Sergeant Hart
12
The record does not indicate whether Sergeant Hart was questioned
specifically about step 11 (opinion of the evaluator) and step 12 (toxicological
examination) of the 12-step process.
13
The trial court ruled that Sergeant “Hart has the expertise to testify as to
symptoms that someone under the influence of antidepressants, as is in this case,
what those outward physical symptoms–what effect those drugs would have on
someone.” In making its ruling, the trial court stated, “There has been no testimony
as to how many of these steps need to be done; there’s been no testimony as to
whether one step is more important than another one, but what I do find significant
is that some of the–some of the things that were done or weren’t done are not
present here for the court to make an adequate determination as to whether or not
it’s admissible.” The court further stated, “I am not going to allow you to testify as
to whether – as to your opinion as to whether or not the defendant is under the
influence of drugs because you were not there.”
31
 No. 1-14-3352

admitted that citalopram and quetiapine can have different effects on different

people. The drugs have a durational effect. The indicators he testified about

would not give any indication of how recently an individual had consumed the

drug, and the drug ingested would wear off over a period of time. When

analyzing an individual that he believes to be under the influence of drugs, he

cannot make a determination of how much of that drug is in their system. The

officer testified that, just because an individual has a particular drug in their

system, it does not necessarily mean that they are under the influence of that

drug.

¶ 62 VI. Conviction and Sentencing

¶ 63 At the close of the bench trial on July 22, 2014, the trial court found

defendant guilty of driving under the influence of drugs and failing to reduce

his speed to avoid an accident. The trial judge reserved his ruling on count III

(failure to provide proof of valid insurance) and required defendant to undergo

a drug and alcohol evaluation for purposes of his sentencing hearing.

¶ 64 On August 21, 2014, defendant filed a posttrial motion for a new trial

based on three claims: (1) that the trial court improperly denied a motion to

quash the arrest for lack of probable cause despite the arresting officer’s

admission that the officer was not a trained drug recognition expert; (2) that the

trial judge erred in allowing the State’s drug recognition expert to testify

32
 No. 1-14-3352

regarding the effects of two prescription drugs, citalopram and quetiapine; and

(3) that a new trial was warranted because the State failed to demonstrate

sufficient evidence to convict him and the trial court’s reliance on chemical

evidence for a charge of DUI was misplaced, because the mere presence of a

prescribed drug was not a violation of the statute. On October 3, 2014, the trial

court denied defendant’s motion.

¶ 65 After hearing factors in mitigation and aggravation, the trial court

sentenced defendant to two years of probation and ordered alcohol and drug

abuse treatment, attendance at a victim impact panel, and random urine testing

throughout his probation. The trial court ordered defendant to comply with a

zero tolerance standard for alcohol or illegal drugs in his system. The trial court

also ordered defendant to perform 240 hours of community service, pay

mandatory fees and costs, and serve 364 days in the Cook County jail, which

the trial court suspended, subject to a motion to vacate. The trial court stated it

would consider vacating this portion of defendant’s sentence if defendant

successfully completed the probationary period ending on August 15, 2016. For

failing to reduce his speed to avoid an accident, the trial court ordered

defendant to pay $1,664 by the end of his probation. With regard to count III

(failure to provide proof of valid insurance), the State stated it would file a

“motion State SOL.”

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 No. 1-14-3352

¶ 66 On October 30, 2014, defendant filed a notice of appeal, and this appeal

followed.

¶ 67 ANALYSIS

¶ 68 On appeal, defendant challenges his conviction of driving under the

influence of drugs. Defendant claims: (1) that the trial court erred when it

denied his motion to suppress evidence based on a lack of probable cause that

he was driving under the influence of drugs at the time of his arrest; (2) the trial

court abused its discretion when it allowed Sergeant Hart’s testimony for the

limited purpose of discussing the general effects of the prescription drugs,

citalopram and quetiapine; and (3) that the evidence was insufficient to show

whether defendant was under the influence of drugs to a degree that it rendered

him incapable of driving safely. For the following reasons, we affirm

defendant’s conviction.

¶ 69 I. Motion to Quash Defendant’s Arrest and Suppress Evidence for
Lack of Probable Cause

¶ 70 A. Standard of Review

¶ 71 In reviewing a trial court's ruling on a motion to suppress evidence under

the fourth amendment, we apply the standard of review set forth by the United

Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 (1996). In re

Mario T., 376 Ill. App. 3d 468, 471-73 (2007) (relying on the decision in

34
 No. 1-14-3352

Ornelas and applying a de novo standard of review on a motion to suppress).

Under this standard, a trial court's findings of historical fact are reviewed only

for clear error, and a reviewing court must give due weight to any inferences

drawn from those facts by the factfinder. Ornelas, 517 U.S. at 699. In other

words, we give great deference to the trial court's factual findings, and we will

reverse those findings only if they are against the manifest weight of the

evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001).

¶ 72 A reviewing court, however, remains free to undertake its own

assessment of the facts in relation to the issues and may draw its own

conclusions when deciding what relief should be granted. People v. Pitman, 211

Ill. 2d 502, 512 (2004). Accordingly, we review de novo the trial court's

ultimate legal ruling as to whether suppression is warranted. Ornelas, 517 U.S.

at 699; Pitman, 211 Ill. 2d at 512; Sorenson, 196 Ill. 2d at 431.

¶ 73 B. Parties’ Arguments

¶ 74 Defendant claims that Officer Morris detained him for an extensive

period of time, without probable cause. Defendant argues that Officer Morris

unlawfully prolonged the traffic stop when he ordered defendant to exit the

police vehicle after defendant was placed there for “his safety,” and to perform

field sobriety tests. Defendant also claims that Officer Morris’s act in placing

defendant in the backseat of the police vehicle constituted an arrest without

35
 No. 1-14-3352

probable cause. Defendant argues that Officer Morris arrested defendant “on a

mere hunch” and that his suspicion that defendant was under the influence of a

drug was unwarranted, since Officer Morris did not smell marijuana or alcohol,

and nothing in his report indicated that he noticed any drugs, paraphernalia or

prescription medication in plain view, nor did he testify to such. Defendant

further argues that Officer Morris failed to call a drug recognition expert to the

scene of the accident to conduct a proper investigation and render an accurate

opinion of whether defendant was under the influence of a drug and whether he

should be placed under arrest. Officer Morris had no experience with the

particular drugs found in defendant’s urine sample including: what they were,

what effect they had on the human body, or when defendant had ingested them.

Based on these considerations, defendant claims that the trial court improperly

denied his motion to quash his arrest and suppress evidence for lack of probable

cause.

¶ 75 In response, the State argues that Officer Morris was justified in moving

defendant to the back seat of the police vehicle under the Fourth Amendment’s

“community caretaking” doctrine.14 While engaging in his caretaking duties,

14
Community caretaking refers to the police’s ability to act when
“performing some task unrelated to the investigation of a crime, such as helping
children find their parents, mediating noise disputes, responding to calls about
missing persons or sick neighbors, or helping inebriates find their way home.
Courts use the term ‘community caretaking’ to uphold searches or seizures as
36
 No. 1-14-3352

the officer uncovered further evidence of defendant’s intoxication. The State

argues that Officer Morris had probable cause to arrest defendant based on: (1)

defendant’s failure to reduce his speed to avoid an accident; (2) the officer’s

observation of defendant’s impaired physical and mental state; (3) the position

of the vehicles in the three vehicle accident; and (4) defendant’s admission that

he had consumed prescription drugs. Defendant’s failure of the three field

sobriety tests provided Officer Morris with additional probable cause.

Accordingly, the State claims that the trial court properly denied defendant’s

motion to quash his arrest and suppress evidence for lack of probable cause.

¶ 76 C. Probable Cause

¶ 77 The Illinois Supreme Court has recognized “three tiers of police-citizen

encounters.” People v. Murray, 137 Ill. 2d 382, 387 (1990); People v. Gherna,

203 Ill. 2d 165, 176 (2003). The first tier involves the formal arrest of a citizen,

which requires probable cause. Gherna, 203 Ill. 2d at 176. The second tier

involves temporary investigative seizures commonly known as a “Terry stop”

(see Terry v. Ohio, 392 U.S. 1 (1968)), during which an officer may conduct a

reasonable under the fourth amendment ***. Community caretaking describes an
exception to the warrant requirement.” People v. McDonough, 239 Ill. 2d 260, 269
(2010) (holding that officer’s act in seizing defendant was reasonable under the
“community caretaking” exception and was undertaken to protect the public’s
safety). “[T]he ‘community caretaking’ doctrine is analytically distinct from
consensual encounters ***.” People v. Luedemann, 222 Ill. 2d 530, 548 (2006)
(applying the “community caretaking” doctrine).

37
 No. 1-14-3352

brief, investigatory stop of a citizen if the officer has a reasonable, articulable

suspicion of criminal activity, and if that suspicion is more than a mere

“hunch.” Gherna, 203 Ill. 2d at 176. The third tier involves consensual

encounters, which occur without coercion or detention and, therefore, do not

involve a seizure. Gherna, 203 Ill. 2d at 176.

¶ 78 Probable cause exists when the facts and circumstances known to the

arresting officer are sufficient to warrant a reasonable person's belief that the

arrested individual has committed a crime. Gherna, 203 Ill. 2d at 176. A

reviewing court “must look at the ‘totality of the circumstances’ of each case to

see whether the detaining officer has a ‘particularized and objective basis’ for

suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273

(2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Officers

are allowed “to draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available to

them that ‘might well elude an untrained person.’ ” Arvizu, 534 U.S. at 273

(quoting Cortez, 449 U.S. 418; see also Ornelas, 517 U.S. at 699 (“[in making]

determinations of reasonable suspicion and probable cause” “a reviewing court

should *** give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers”). “[A] police officer may draw

38
 No. 1-14-3352

inferences based on his own experience in deciding whether probable cause

exists.” Ornelas, 517 U.S. at 700.

¶ 79 With regard to drug intoxication, Illinois courts have generally held

“ ‘that the testimony of police officers that a defendant was under the influence

of drugs would be sufficient, provided that the officers had relevant skills,

experience, or training to render such an opinion.’ ” People v. Foltz, 403 Ill.

App. 3d 419, 424 (2010) (quoting People v. Vanzandt, 287 Ill. App. 3d 836, 845

(1997)); People v. Workman, 312 Ill. App. 3d 305, 310 (2000). Here, Officer

Morris received training at the police academy on drug and alcohol detection.

He had also been involved in the gang unit and observed “hundreds” of people

under the influence of drugs. The spectrum of drugs ranged from illegal drugs

“such as cocaine and crack [where] you get erratic, irrational behavior” to “the

other end of the spectrum such as anti-depressants and sleeping aids, [where]

you get people that are tired and sleepy.” He testified that, as a police officer, he

relies on his specialized knowledge as well “knowledge that is common *** in

[his] personal life.” As to his knowledge of Ambien, Officer Morris testified

that he was aware that it was a sleeping drug and that somebody who could not

keep their eyes open and was sleepy or lethargic was consistent with someone

on Ambien. Officer Morris also testified that defendant had admitted to him that

he had taken prescription drugs, including Ambien. When defendant admitted

39
 No. 1-14-3352

taking Ambien and other drugs, the officer had probable cause to believe that it

had something to do with the conduct that the officer observed.

¶ 80 In addition to Officer Morris’s training and experience, the facts

observed by Officer Morris at the time he arrested defendant constituted

probable cause to support the arrest. Defendant was the cause of the rear-end

automobile accident that rendered his own vehicle inoperable and severely

damaged. Defendant was driving the easternmost vehicle, and the other two

vehicles involved in the accident were in front of him proceeding westbound.

Defendant rear-ended the vehicle in front of him, causing his license plate to

stick to the other vehicle. Defendant also exhibited signs of being under the

influence of drugs including: (1) dilated pupils, (2) deliberate and lethargic

movements, (3) a disheveled appearance, (4) difficulty keeping his eyes open

and a sleepy appearance; and (5) speech that was mush-mouthed and slurred.

Furthermore, defendant provided Officer Morris with conflicting answers about

where he lived, where he had been, and how the accident occurred. When asked

for his insurance card, defendant repeatedly handed the officer his AARP card.

In addition, defendant failed each of the three field sobriety tests which the

officer administered. Defendant nearly fell to the ground several times during

the tests, two of which had to be terminated for safety purposes. Defendant also

admitted he was prescribed Zoloft, Celexium, and Ambien. These facts were

40
 No. 1-14-3352

ample for a reasonable person to believe that there was probable cause that

defendant was under the influence of drugs to a degree that it rendered him

incapable of driving safely.

¶ 81 The facts in People v. Kirk, 291 Ill. App. 3d 610 (1997), are similar to

this case. In Kirk, the defendant caused a vehicle accident. Kirk, 291 Ill. App.

3d at 611. The officer who was called to the scene, observed that defendant’s

eyes were glassy and bloodshot, that his face was flushed, and that his speech

was slurred. Kirk, 291 Ill. App. 3d at 612. The defendant displayed poor

balance and coordination as he walked and seemed disoriented. Kirk, 291 Ill.

App. 3d at 612. Defendant admitted to the officer that he had consumed

alcohol. Kirk, 291 Ill. App. 3d at 612. While the trial court found probable

cause to arrest the defendant for a DUI, it did not find probable cause to justify

the officer’s request for a urine sample, since “an officer cannot request

multiple chemical tests if he has no reason to believe drugs other than alcohol

are involved.” Kirk, 291 Ill. App. 3d at 613. The trial court suppressed evidence

of the defendant’s urine sample which revealed the presence of cannabis, but

allowed the blood sample which revealed that the defendant’s blood-alcohol

content (BAC) was 0.06. Kirk, 291 Ill. App. 3d at 613.

¶ 82 The appellate court reversed the trial court’s holding that a police officer

with probable cause to arrest a driver for DUI cannot perform “any or all of the

41
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tests to determine whether the driver is, in fact, chemically impaired.” Kirk, 291

Ill. App. 3d at 615. The appellate court held that, because “[t]here is no

requirement that an officer have individualized suspicion of drugs and/or

alcohol before requesting multiple chemical tests,” the officer had probable

cause to ask the defendant to submit to a urine sample. Kirk, 291 Ill. App. 3d at

615. Applying this same reasoning to the instant case, we find that Officer

Morris had probable cause to arrest defendant even though he did not possess

particularized knowledge of the specific chemical causing defendant’s

intoxication.

¶ 83 In addition, the record reflects, as the State argues, that Officer Morris’s

actions were reasonable within the “community caretaking” doctrine and thus

not an unreasonable “seizure” in violation of the fourth amendment. People v.

Luedemann, 222 Ill. 2d at 548 (applying the “community caretaking” doctrine).

Officer Morris testified that, when he arrived on the scene of the crash site, he

concluded that there had been a significant impact based on the damage done to

defendant’s vehicle and the vehicle ahead of it and thus, he suspected defendant

might be injured as a result. Officer Morris testified that he asked defendant to

exit defendant’s damaged vehicle and sit in the backseat of the squad vehicle, in

order to ensure defendant’s safety as the officer prepared a crash report. We

find that Officer Morris’s actions were part of his valid community caretaking

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 No. 1-14-3352

function as a police officer. See, e.g., People v. Dittmar, 2011 IL App (2d)

091112, ¶ 29 (finding that an officer performed his community caretaking

functions when he pulled his squad vehicle behind defendant's vehicle,

activated his emergency lights, and “had reason to believe occupants of [the]

vehicle might need assistance”); People v. Sturgess, 364 Ill. App. 3d 107, 114

(2006) (holding that officers’ act in arranging for defendant's transport to ensure

her safe removal from a congested highway construction zone was a valid

community caretaking activity). Considering all of the relevant circumstances

surrounding Officer Morris’s encounter with defendant at the accident site, and

considering the officer's available options in arranging for defendant’s safety,

the officer acted reasonably to further his community caretaking function.

¶ 84 Accordingly, we affirm the denial of defendant’s motion to suppress

evidence, (1) finding Officer Morris had probable cause to arrest defendant and

(2) finding that he acted to further his community caretaking function as a

police officer.

¶ 85 II. Admission of Testimony From Drug Recognition Expert

¶ 86 Second, defendant claims that the trial court abused its discretion when it

allowed Sergeant Hart’s testimony for the limited purpose of discussing the

effects of the prescription drugs citalopram and quetiapine.

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 No. 1-14-3352

¶ 87 A. Standard of Review

¶ 88 The admission of evidence is within the sound discretion of a trial court,

and a reviewing court will not reverse the trial court absent a showing of an

abuse of that discretion. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003); People v.

Hall, 195 Ill. 2d 1, 20-21 (2000). An abuse of discretion occurs where the trial

court's decision is arbitrary, fanciful or unreasonable (People v. Illgen, 145 Ill.

2d 353, 364 (1991)) or where no reasonable person would agree with the

position adopted by the trial court (Schwartz v. Cortelloni, 177 Ill. 2d 166, 176

(1997); Illgen, 145 Ill. 2d at 364). Decisions of whether to admit expert

testimony are reviewed using this same abuse of discretion standard. Snelson,

204 Ill. 2d at 24; People v. Reid, 179 Ill. 2d 297, 313 (1997).

¶ 89 B. Parties’ Arguments

¶ 90 Defendant claims that it was improper for the trial court to admit

Sergeant Hart’s testimony about the general effects of the two prescription

drugs found in defendant’s urine. Defendant argues that the trial court abused

its discretion in allowing Sergeant Hart to testify because (1) Sergeant Hart was

“not a toxicologist and there was no quantifiable information as to how much of

the drugs were in defendant’s system and how much was required in order to

establish those effects testified about”; (2) Sergeant Hart was not a “neutral

expert” and he “tailor[ed] his testimony to match, in some cases verbatim,

44
 No. 1-14-3352

Officer Morris’ report”; and (3) Sergeant Hart was not at the scene of the

accident, conducted no investigation, and did not speak to defendant at any

point in time. “[O]nce [Sergeant Hart’s] testimony was limited, he simply

excluded [defendant] from his testimony and testified in a general sense that

people under the influence of the prescription drugs found in defendant’s urine

exhibit all the signs that Officer Morris mentioned in his report.” Defendant

further argues that because Sergeant Hart was not present at any point in time,

he could not appropriately render testimony about the effects of the prescription

drugs found in defendant’s system.

¶ 91 The State argues that the trial court properly allowed the testimony from

Sergeant Hart, which corroborated Officer Morris’s observations.

¶ 92 C. The Propriety of the Testimony of Sergeant Hart

¶ 93 In the case at bar, it is important to distinguish what is in dispute. First,

there is no dispute about the validity of “drug recognition” as a legitimate field

of expertise. The defense never objected to Sergeant Hart's testimony

concerning his qualifications. As noted, Sergeant Hart testified that he was

certified by “the state coordinator of the drug recognition expert program.” The

drug evaluation and classification program is sponsored by the International

Association of Chiefs of Police and the National Highway Transportation

Safety Administration. The program “enables police officers who are certified

45
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as drug recognition experts to determine whether someone is under the

influence of drugs or a combination of drugs and alcohol.” The program

involves a course tailored to the study of seven different categories of drugs

including central nervous system depressants.

¶ 94 Sergeant Hart testified that the course included training on the

identification of drugs such as quetiapine and citalopram. In addition, the

program required participants to pass two different final exams and complete 12

field evaluations by a supervisor. Sergeant Hart testified that the 12 field

evaluations entailed interacting with “live individuals.” He described that, “One

day we spent with the Department of Corrections in their parole office in

Chicago. Parole agents went out, encountered their parolees. If they thought

that they were under the influence of drugs, they brought them back to their

office where we did our evaluations of them there.” The evaluation of these

subjects included a “12-step process *** part of which is checking the

horizontal gaze nystagmus, measuring pupil size in different lighting

conditions, pulse rates, blood pressures, checking oral activities, checking nasal

cavities.” Sergeant Hart characterized the 12 steps of analysis as

“psychophysical tests” requiring the subject to perform a balance test, the one-

leg stand test, a walk-and-turn test, the finger-to-nose test, and other

evaluations.

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 No. 1-14-3352

¶ 95 Second, there is no dispute on appeal about the qualification or expertise

of Sergeant Hart as a drug recognition expert. Sergeant Hart testified that he

was employed by the Illinois State Police since 2002 and had approximately 19

years of law enforcement experience. As a certified standardized field sobriety

instructor, he taught at the police academy, as well as conducted refresher

courses for other troopers and local police departments as needed. Sergeant

Hart attended the police academy and received training on how to administer

and assess field sobriety tests. He also trained others in field sobriety tests.

Throughout his career, he investigated approximately 75 DUI cases involving

drugs. As a law enforcement officer he has come into contact with drug users

“close to a thousand, 500” times. Defense and plaintiff’s counsel stipulated that

Sergeant Hart was a drug recognition expert. The trial court held that “the

trooper has the expertise to testify as to symptoms that someone under the

influence of antidepressants, as is in this case, what those outward physical

symptoms–what effect those drugs would have on someone.”

¶ 96 The only issue that defendant raises on appeal is that the trial court

abused its discretion when it allowed Sergeant Hart’s testimony for the limited

purpose of discussing the effects of the prescription drugs citalopram and

quetiapine. The trial court barred Sergeant Hart from rendering an opinion as to

whether or not defendant was under the influence of antidepressants on the

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basis of the sergeant’s review of only police reports and the video footage taken

of defendant at the scene of the accident. The trial court allowed Sergeant Hart

to testify only “as an expert as to what the effects of antidepressants may have

on a person.” The trial court stated:

“THE COURT: [Sergeant] Trooper, I am not going to allow you to

testify as to whether–as to your opinion as to whether or not the defendant

is under the influence of drugs because you were not there. And I know

that experts review records and things and make opinions and come to

opinions all the time such as a pathologist, such as a firearms expert, or a

fingerprint expert. They’re not there when it’s done or whatever, but I think

this is a little different because of the 12 steps that you have to do.

And I’m relying somewhat on my own experience that it would be-

and I think I can, that being there in person and seeing it in real time is more

–is probably more reliable, more effective, and I don’t think at this point in

what’s been presented that we would have that here, so I’m going to deny

him–or bar him from testifying as to the actual opinion as to the defendant,

but he can certainly explain–if you wish, make–give testimony as to the

effects of antidepressants on a person.”

¶ 97 In response to the ruling, defendant objected in the following colloquy:

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“ASA: Can [Sergeant Hart] testify about the effect of the specific drugs

in the case?

THE COURT: Yes, he certainly can. And defense counsel has not raised

any objection to it, and I think he can, so I will allow it. That is my

ruling.

DEFENSE COUNSEL: Well, as to specific drugs, I would object

because during my questioning I asked him if he was familiar with any kind

of antidepressants and or these particular ones, and he said, ‘I know the

seven categories.”

The trial court then overruled defendant’s objection, which was not timely and

defense counsel did not move to strike the testimony.

¶ 98 Defendant now raises on appeal that the trial court abused its discretion

when it allowed Sergeant Hart’s testimony for the limited purpose of discussing

the effects of the specific drugs in this case. However, defendant moved to bar

Sergeant Hart from rendering an opinion as to whether defendant was under the

influence of antidepressants.

¶ 99 Under the "doctrine of invited error," a party " 'may not request to

proceed in one manner and then later contend on appeal that the course of

action was in error.' " People v. Harvey, 211 Ill. 2d 368, 385 (2004) (quoting

People v. Carter, 208 Ill. 2d 309, 319 (2003)). To permit a party to use, as a

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vehicle for reversal, the exact action which it procured in the trial court " 'would

offend all notions of fair play' " and encourage duplicity by litigants. Harvey,

211 Ill. 2d at 385 (quoting People v. Villarreal, 198 Ill. 2d 209, 227 (2001)).

When a party "procures, invites or acquiesces" to a trial court's evidentiary

ruling, even if the ruling is improper, he cannot contest the ruling on appeal.

People v. Bush, 214 Ill. 2d 318, 332 (2005). Therefore, defendant has waived

his argument that the trial court abused its discretion when it failed to timely

object to Sergeant Hart’s testimony about the general effects of the specific

drugs and failed to move to strike the testimony. However, even if defendant

had made a timely objection, it would have been well within the trial court's

discretion to overrule the objection because the testimony was relevant to the

issue as to whether the arresting officer had probable cause to arrest defendant.

¶ 100 III. Defendant’s Conviction

¶ 101 Defendant’s final contention on appeal is that the State failed to introduce

sufficient evidence to prove him guilty beyond a reasonable doubt of driving

under the influence of drugs or a combination of drugs to a degree that rendered

him incapable of driving safely.

¶ 102 A. Standard of Review

¶ 103 Due process requires the State to prove each element of a criminal

offense beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278

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(2004) (citing In re Winship, 397 U.S. 358, 364 (1970)). When reviewing the

sufficiency of the evidence, a reviewing court must decide “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.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307,

319 (1979); see also Cunningham, 212 Ill. 2d at 278. A reviewing court will not

overturn a guilty verdict unless the evidence is “so improbable, unsatisfactory,

or inconclusive that it creates a reasonable doubt of defendant's guilt.” People v.

Collins, 214 Ill. 2d 206, 217 (2005). Where a conviction depends on eyewitness

testimony, the reviewing court may find testimony insufficient “only where the

record evidence compels the conclusion that no reasonable person could accept

it beyond a reasonable doubt.” Cunningham, 212 Ill. 2d at 280.

¶ 104 B. Parties’ Arguments

¶ 105 Although the lab results of defendant’s urine sample came back positive

for citalopram and quetipaine, defendant argues that Cynthia Woods, the State’s

toxicologist, was unable to accurately testify to the following information: (1)

the amount of those drugs in defendant’s system; (2) when he consumed the

drugs; (3) what effect they had on his body; (4) whether they made him

incapable of operating a motor vehicle; or (5) how long the drugs had been in

his body. Defendant further argues that Sergeant Hart, the State’s drug

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recognition expert, could not testify to this same information, and therefore, the

State failed to meet its burden of proof to convict defendant of driving under the

influence of drugs.

¶ 106 In response, the State argues that the following evidence proved beyond a

reasonable doubt that defendant drove under the influence of drugs or a

combination of drugs to a degree that rendered him incapable of driving safely:

(1) defendant’s admission that he took prescription drugs; (2) the position of the

vehicles in the three-vehicle crash; (3) the observations of Officer Morris, the

arresting officer, of defendant after the crash; (4) the other driver’s observations

of defendant after the crash; (5) the prescription drugs in defendant’s urine; (6)

the testimony of Sergeant Hart, a drug recognition expert, regarding the effects

of citalopram and quetiapine, (7) the testimony of Cynthia Woods, a forensic

toxicologist, on the effects of prescription drugs, and (8) the arresting officer’s

knowledge and experience in observing people under the influence of drugs, his

observations here, field sobriety tests, and opinions.

¶ 107 C. Proof of Defendant’s Guilt Beyond a Reasonable Doubt

¶ 108 The offense of driving under the influence of a drug or combination of

drugs is committed when an offender: (1) drives or is in actual control of a

vehicle (2) while under the influence of any drug or combination of drugs (3) to

a degree that he or she is incapable of driving safely. 625 ILCS 5/11-501(a)(4)

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(West 2014); see also People v. Shelton, 303 Ill. App. 3d 915, 921-22 (1989). In

the case at bar, there is no dispute that defendant was in actual control of a

vehicle. Thus, the first element is undisputed.

¶ 109 1. Under the Influence of Drugs

¶ 110 Even where there is circumstantial evidence provided by a credible

witness, it is unnecessary for the State to present scientific evidence of

"intoxication." People v. Gordon, 378 Ill. App. 3d 626, 638 (2007). Also, a

defendant's admissions can provide direct evidence of intoxication to sustain a

conviction. See People v. Bitterman, 142 Ill. App. 3d 1062, 1065 (1986). See

also Workman, 312 Ill. App. 3d at 311.

¶ 111 In the instant case, defendant admitted he had been using prescription

drugs. The trial court viewed the video of defendant’s arrest and noted

defendant swayed side to side during the field sobriety test. Defendant’s

admissions and conduct, coupled with the video footage of defendant, provide

direct evidence that he was under the influence of drugs. Officer Morris

observed that defendant had dilated pupils, deliberate and lethargic movements,

a disheveled appearance, difficulty keeping his eyes open, the appearance of

sleepiness; and slurred and mush-mouthed speech. Furthermore, defendant

provided Officer Morris with conflicting and nonsensical answers about where

he lived and how the accident occurred. When asked for his insurance card,

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defendant repeatedly handed the officer his AARP card. In addition, defendant

failed each of the three field sobriety tests the officer administered. Defendant

nearly fell to the ground several times throughout the tests, two of which had to

be terminated for safety purposes. Furthermore, the laboratory tests performed

by Cynthia Woods, a toxicologist with the Illinois State Police, which found

citalopram and quetiapine present in defendant’s urine sample, further support

the evidence that defendant was under the influence of drugs. Considering all

this evidence in the light most favorable to the prosecution, a reasonable

factfinder could find beyond a reasonable doubt that defendant was under the

influence of a drug or combination of drugs while operating a motor vehicle.

¶ 112 2. Incapable of Driving Safely

¶ 113 "The driving under the influence charge required the jury to find that

defendant could not drive safely under the influence of the drugs found in his

system." People v. Mikyska, 179 Ill. App. 3d 795, 805 (1989). It is not enough

for the State to show drug use by the defendant; the State must also show that

the defendant could not drive "safely under the drugs found in his system."

Mikyska, 179 Ill. App. 3d at 805.

¶ 114 This contrasts markedly with the consumption of illegal drugs. "Because

possession of a controlled substance is unlawful per se (see 720 ILCS 570/402

(West 2008)), the State must establish simply that the defendant used or

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consumed a controlled substance before driving." People v. Martin, 2011 IL

109102, ¶ 16; People v. Rodriguez, 398 Ill. App. 3d 436, 443 (2009) (Illinois

law "creates an absolute bar against driving a motor vehicle following the

illegal ingestion of any cannibis or controlled substance" without regard to

physical impairment). By contrast, under the offense that defendant was

charged with, the State must prove, as an element of the offense, that he was not

only under the influence, but also under the influence "to such a degree that it

rendered defendant incapable of safely driving." Shelton, 303 Ill. App. 3d at

921-22.

¶ 115 The evidence in this case was sufficient to prove that defendant was

incapable of driving safely. As a result of the accident, defendant’s vehicle

sustained severe damage to its front end, was leaking fluid, and was inoperable.

David Nielsen, one of the other drivers, testified that, as a result of the impact,

his vehicle struck the rear of the vehicle in front of him. He observed that the

back-end rear bumper of his vehicle was pushed in extensively and that the

front license plate of the vehicle behind him was lodged around the exhaust

pipe of his vehicle. Nielsen also observed that when he went to check on the

defendant in the vehicle, defendant did not seem alert. Following the collision,

when Nielsen asked defendant if he was okay, defendant did not answer, nor

did he exit his vehicle.

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¶ 116 Officer Morris’s observations also indicate that defendant was incapable

of driving. Officer Morris observed that defendant exhibited signs of

intoxication including: (1) dilated pupils, (2) deliberate and lethargic

movements, (3) a disheveled appearance, (4) difficulty keeping his eyes open

and a sleepy appearance; and (5) speech that was mush-mouthed and slurred.

Furthermore, defendant provided Officer Morris with conflicting answers about

where he lived and how the accident occurred. When asked for his insurance

card, defendant repeatedly handed the officer his AARP card. In addition,

defendant performed poorly on each of the three field sobriety tests which the

officer administered. Defendant nearly fell to the ground several times during

the tests, two of which had to be terminated for defendant’s and Officer

Morris’s safety. Thus, the evidence in this case is sufficient to prove that

defendant was incapable of driving safely.

¶ 117 Therefore, based on the foregoing, we find that there was sufficient

evidence beyond a reasonable doubt to convict defendant of driving under the

influence of drugs to a degree that rendered him incapable of driving safely.

¶ 118 CONCLUSION

¶ 119 For the foregoing reasons, we affirm the trial court’s ruling on

defendant’s motion to suppress and conclude that the trial court did not abuse

its discretion when it allowed limited testimony from a drug recognition expert

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into evidence. In addition, we find that there was sufficient evidence to find

defendant guilty of driving under the influence of drugs and failing to reduce

speed. Accordingly, we affirm defendant’s conviction and sentence.

¶ 120 Affirmed.

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