People v. Romanowski

2016 IL App (1st) 142360

FIRST DIVISION
August 22, 2016
No. 1-14-2360

)
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County,
)
v. ) No. 13 CR 14429
)
WESTON ROMANOWSKI, ) Honorable
) Thomas V. Gainer, Jr.,
Defendant-Appellant. ) Judge Presiding.
)

JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justice Connors and Justice Harris concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant, Weston Romanowski, was convicted of aggravated

driving while under the influence of alcohol and sentenced to 18 months in prison and 1 year of

mandatory supervised release. In this direct appeal, Mr. Romanowski contends that his

conviction should be reversed because the circuit court erroneously permitted the arresting

officer to testify that Mr. Romanowski was told of the civil penalties that he would be subject to

if he refused to submit to a blood-alcohol test. Mr. Romanowski also contends that the circuit

court’s order requiring him to pay a public defender fee in the amount of $450 should be vacated,

because no hearing was held concerning his ability to pay such a fee. For the reasons that follow,

we affirm Mr. Romanowski’s conviction and sentence for aggravated driving while under the

influence of alcohol and we vacate the $450 public defender fee.
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¶2 BACKGROUND

¶3 A jury trial was held in this matter on June 10, 2014. The only witness that testified was

the arresting officer, Officer John McGuire of the Chicago police department. Officer McGuire

testified that, at approximately 8:30 p.m. on the evening of May 16, 2013, he encountered Mr.

Romanowski’s vehicle parked, with the engine running, at a tollbooth serving the northbound

lanes of the Chicago Skyway. The vehicle was in a lane displaying a red “X,” indicating that it

was out of service. As he approached and began to question Mr. Romanowski, Officer McGuire

smelled a strong odor of alcohol coming from the vehicle, observed Mr. Romanowski fumbling

through the glove box, and could see three empty beer cans in the rear seat of the vehicle. Officer

McGuire testified that Mr. Romanowski’s speech was slurred and incoherent; he had bloodshot,

glassy eyes; and he kept turning his face away from the officer when he was spoken to. Mr.

Romanowski had to be told to step out of the vehicle four times and required assistance to do so.

¶4 Officer McGuire described three field sobriety tests that he was trained to administer and

did administer to Mr. Romanowski, in a lighted area with level pavement just outside the toll

booth: the horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one-legged

stand test. The HGN test, which focuses on the movement of the eyes in response to an external

stimulus, is designed to detect signs that a subject has consumed alcohol. Officer McGuire

explained how, when asked to track the movement of a light pen horizontally and at a 45 degree

angle to his line of vision, Mr. Romanowski exhibited a “lack of smooth pursuit” or uncontrolled

jerking of the eyes, a positive indicator for the consumption of alcohol. The walk and turn test,

which requires a subject to count out and take nine heel-to-toe steps along a straight line, turn

around, and take nine more heel-to-toe steps in the opposite direction, assesses a subject’s ability

to perform multiple tasks simultaneously. According to Officer McGuire, Mr. Romanowski took

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four steps that were not heel-to-toe steps and lost his balance on the fifth step, raising his arms

for balance and stepping off the line before ending the test. The one-legged stand test, another

test that gauges a subject’s ability to perform tasks when his or her attention is divided, requires

the subject to raise one foot 12 inches off of the ground and, while looking at the toe of the raised

foot, count by saying “one 1,000, two 1,000, three 1,000, etc.” Officer McGuire stated that,

during the test, Mr. Romanowski’s left ankle “was turning and wiggling,” and he was able to

raise his right leg for only four seconds before losing his balance and putting his foot down. Mr.

Romanowski was given a single chance to perform each test, and according to Officer McGuire,

the results indicated that Mr. Romanowski had consumed alcohol and was impaired.

¶5 On cross-examination, Officer McGuire acknowledged that he had never met Mr.

Romanowski before and was not familiar with what his normal speaking voice sounded like or

whether his eyes were regularly bloodshot due to allergies or some other reason. He admitted

that he could not tell, from the mere presence of an alcoholic odor, what Mr. Romanowski had

had to drink, how much he drank, or when he drank it. He further agreed that the HGN test he

administered could not tell him what Mr. Romanowski’s blood-alcohol level was. It was

nevertheless the officer’s opinion, “[b]ased on the totality of the clues that [he] observed from

the tests that were performed ***, the smell of an alcoholic beverage, the visual appearance of

[Mr. Romanowski] with his eyes and his breath[, a]nd his inability to answer questions,” that Mr.

Romanowski was intoxicated.

¶6 After he had finished the field sobriety tests, Officer McGuire arrested Mr. Romanowski

and placed him in the back of the officer’s squad car. There, Mr. Romanowski made belligerent

and at times incoherent remarks—including threats to the officer and the officer’s family and

claims that Mr. Romanowski was a government agent—before attempting to unzip his pants and

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urinate. Officer McGuire called for backup, which soon arrived to take Mr. Romanowski to the

fourth district police station in Chicago. When Officer McGuire next encountered Mr.

Romanowski, Mr. Romanowski was urinating on the floor of a processing room at the police

station.

¶7 Officer McGuire moved Mr. Romanowski to a holding cell to complete the paperwork

related to his arrest. This paperwork included reading Mr. Romanowski a document that Officer

McGuire referred to as the “warnings of motorists.” Over defense counsel’s objection and after

denying defense counsel’s request for a sidebar, the circuit court permitted the officer to describe

the contents of that warning to the jury:

“Q. [The State:] Please explain what the warning to

motorists is?

A. [Officer McGuire:] That in Illinois, drivers when

requested by a law officer to submit to three types of testing, either

blood, breath or urine. And if you refuse to take one of those tests,

the repercussions of that refusal will be a suspension of your

driver’s license.

Q. Did the defendant then agree to take any of those tests?

A. No, he did not.

Q. He refused to take the blood, breath or urine?

A. Correct.”

¶8 Officer McGuire further testified that, at approximately 10:20 that evening, Mr.

Romanowski was given Miranda warnings and, waiving his right to remain silent, agreed to

answer the officer’s questions. When asked if he knew where he was, Mr. Romanowski

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responded “Indiana.” Mr. Romanowski responded to each of the officer’s subsequent questions

with profanity. According to Officer McGuire, Mr. Romanowski then fell “fast asleep” on a

bench and was “snoring his head off.” The officer finished his paperwork and, as part of the

booking process, discovered that Mr. Romanowski’s driver’s license was suspended.

¶9 Officer McGuire told the jury that, both as a police officer and in his personal life, he had

observed individuals under the influence of alcohol on thousands of occasions. It was his opinion

that Mr. Romanowski was under the influence of alcohol when he was found sitting in his

vehicle with the engine running on the evening of May 16, 2013.

¶ 10 Following this testimony, the jury was excused and defense counsel was permitted to

make a record concerning his objection to the testimony regarding the contents of the warning to

motorists. Arguing that the civil consequences of a refusal to submit to blood-alcohol testing are

not relevant in DUI cases and are highly prejudicial, defense counsel requested a mistrial. The

circuit court denied the request, stating that:

“I allowed that evidence to show a continued pattern of

combativeness and let me go to my notes and get the exact words

of the officer.

The officer testified that he was cocky, combative and

profane. The way he reacted in the police station, the way he

treated the police officer throughout all of their encounter in the

police station, when the police officer was trying to do his job was

highly inappropriate, combative as he said, the policeman, he was

cocky and profane. And I simply allowed that evidence to further

the defendant’s actions and explain everything he did when he was

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being confronted by the police officer in the police station.”

¶ 11 The jury deliberated and found Mr. Romanowski guilty of aggravated driving while

under the influence of alcohol. 625 ILCS 5/11-501(a)(2), (d)(1)(H) (West 2012). The circuit

court denied Mr. Romanowski’s motion for a new trial and sentenced him to 18 months’

imprisonment, with credit for 340 days of time served, followed by 1 year of mandatory

supervised release.

¶ 12 At the sentencing hearing, the circuit court granted the State’s motion seeking

reimbursement for the services of the public defender and ordered a $450 fee to be deducted

from Mr. Romanowski’s bond for this purpose.

¶ 13 JURISDICTION

¶ 14 Mr. Romanowski timely filed his notice of appeal in this matter on July 10, 2014, the

same day he was sentenced. Accordingly, this court has jurisdiction pursuant to article VI,

section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing

appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970,

art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶ 15 ANALYSIS

¶ 16 A. Testimony Regarding the Warning to Motorists

¶ 17 Mr. Romanowski acknowledges that his refusal to take a blood-alcohol test was

admissible at trial. Section 11-501.2(c)(1) of the Illinois Vehicle Code specifically provides for

the admissibility of evidence of a driver’s refusal to submit to blood-alcohol testing. 625 ILCS

5/11-501.2(c)(1) (West 2012). Our courts have long recognized that a defendant's refusal to take

such a test is “relevant as circumstantial evidence of his consciousness of guilt.” People v.

Garriott, 253 Ill. App. 3d 1048, 1052 (4th Dist. 1993). Mr. Romanowski argues, however, that

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the circuit court erred when it permitted the arresting officer to also testify to the contents of the

admonishment he received warning him of the consequences of such a refusal.

¶ 18 Under Illinois law, any individual who “drives or is in actual physical control of a motor

vehicle upon the public highways of this State shall be deemed to have given consent *** to a

chemical test or tests of blood, breath, or urine for the purpose of determining the content of

alcohol *** in the person’s blood” upon their arrest for driving while under the influence. 625

ILCS 5/11-501.1(a) (West 2012). A driver asked to submit to such a test must be warned by the

requesting law enforcement officer that a positive test result (defined as an alcohol concentration

of 0.08 or more) will result in a 6-month statutory summary suspension of the individual’s

driver’s license, while a refusal to be tested will result in a 12-month suspension for a first

offender or a 3-year suspension for a repeat offender. 625 ILCS 5/11-501.1(c) (West 2012)

(requiring suspension); 625 ILCS 5/6-208.1(a)(1)-(3) (West 2012) (establishing length of the

suspension). This is the warning described in Officer McGuire’s testimony and referred to by the

parties as the “warning to motorists.”

¶ 19 Section 11-501.2(c)(1) of the Illinois Vehicle Code provides as follows:

“If a person under arrest refuses to submit to a chemical

test under the provisions of Section 11-501.1, evidence of refusal

shall be admissible in any civil or criminal action or proceeding

arising out of acts alleged to have been committed while the person

under the influence of alcohol, other drug or drugs, or intoxicating

compound or compounds, or any combination thereof was driving

or in actual physical control of a motor vehicle.” 625 ILCS 5/11-

501.2(c)(1) (West 2012).

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¶ 20 Mr. Romanowski contends that the circuit court erred in admitting the arresting officer’s

testimony regarding the contents of the warning to motorists because such testimony is not

specifically made admissible by section 11-501.2(c)(1) and that the statute should be interpreted

to prohibit admission of such evidence in this case. The State responds that the circuit court

allowed the testimony as a proper exercise of its discretion.

¶ 21 The admission of evidence is generally within the sound discretion of the circuit court,

and we will not disturb a court’s evidentiary rulings, absent an abuse of discretion. People v.

Morgan, 197 Ill. 2d 404, 455 (2001). However, to the extent that admissibility of evidence

requires the interpretation of a statute and its intended scope, our review is de novo. See People

v. Robinson, 172 Ill. 2d 452, 457 (1996) (construction of a statute is a question of law reviewed

de novo). Mr. Romanowski’s primary argument here is that the statute prohibits admission of this

testimony and that the trial judge did not have discretion to admit it.

¶ 22 Three cases have directly addressed the admissibility of the contents of the warning given

to motorists in a DUI trial. In City of Rockford v. Elliott, 308 Ill. App. 3d 735, 739-40 (1999), the

second district held that the probative value of testimony regarding the contents of the warning is

outweighed by its prejudicial effect. The appellate court in Elliott construed section 11-

501.2(c)(1) of the Illinois Vehicle Code as making only evidence of the refusal itself admissible.

Id. at 738-39. In the court’s view, to also allow evidence of the civil penalties the defendant

faced when he refused was “an inappropriate expansion of the statute” amounting to a “double

refusal.” Id. Although it acknowledged that the evidence had “some probative value,” the court

nevertheless concluded that its relevance was outweighed by prejudice to the defendant. Id. at

739-40.

¶ 23 In two later cases, People v. Lynn, 388 Ill. App. 3d 272, 277-78 (2009) and People v.

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Bock, 357 Ill. App. 3d 160, 170-71 (2005), the fourth and first districts of this court, respectively,

reached the opposite result, concluding that testimony regarding the contents of the warning to

motorists was properly admitted in DUI cases.

¶ 24 The Lynn court “emphatically decline[d] to follow Elliott,” holding instead that testimony

regarding the warning to motorists is plainly relevant as circumstantial evidence of a defendant’s

consciousness of his own guilt:

“ ‘[A] driver’s refusal to take a breath test is relevant because it

implies that he believes he is intoxicated, something that he is

clearly in a prime position to appraise. *** If a driver’s refusal to

take a breath test is relevant because it implies that he believes he

is intoxicated, why would it not logically follow that the jury

should be informed of the same factors that [the] defendant

considered—namely, the civil penalties that would result from his

refusal—when he decided to refuse the test? A reasonable

inference under these circumstances is that [the] defendant was so

afraid that the breath test would show he was intoxicated that he

adhered to his refusal to take it despite having been informed of the

severe civil penalties that would follow.’ ” (Emphasis in original.)

Lynn, 388 Ill. App. 3d at 277-78 (quoting People v. Dea, 353 Ill.

App. 3d 898, 902-03 (2004) (Steigmann, J., specially concurring)).

¶ 25 Similarly, the Bock court concluded there was no support for the narrow reading of

section 11-501.2(c)(1) adopted in Elliott:

“[W]e depart from the Elliott court’s apparent conclusion that the

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statutory provision allowing admission into evidence of a driver’s

breath test refusal in any civil or criminal proceeding for acts

relating to intoxicated driving [citation] precludes admission of the

fact that a defendant had been advised of the civil consequences of

refusing the test. The statute provides that ‘evidence of refusal

shall be admissible’; in our view, the Elliott court’s discussion of

the statutory language would be persuasive if the statute instead

provided that ‘only the fact of a driver’s refusal shall be

admissible.’ We find no support in the language of the statute for

the conclusion that the circumstances surrounding a driver’s breath

test refusal may not be admitted into evidence.” Bock, 357 Ill. App.

3d at 170-71.

¶ 26 We agree with the reasoning articulated in Lynn and Bock. Evidence is considered

relevant if it has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Like the court in Lynn, we find the contents of the

warning to motorists to be relevant circumstantial evidence of a defendant’s consciousness of his

own guilt. Although Mr. Romanowski did not have a valid driver’s license at the time of his

arrest, the warning was still pertinent to his decision to refuse testing because he would not be

eligible to obtain a license until the summary suspension period expired. 625 ILCS 5/6-103(3)

(West 2012). By refusing to be tested, Mr. Romanowski guaranteed that he would not be able to

obtain a driver’s license for at least a year, twice as long as if he submitted to testing and

returned a positive result. We therefore disagree with Mr. Romanowski’s assertion that “the

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probative value of the contents of the warning [i]s minimal at best.” To the contrary, the

probative value of Mr. Romanowski’s refusal to be subjected to a blood-alcohol test is most fully

recognized when put in the context of the civil penalties Mr. Romanowski knowingly accepted

as a consequence of his decision.

¶ 27 Mr. Romanowski argues that the circuit court admitted the warning to show

“combativeness” and it was not relevant to that. It is unclear whether the circuit court permitted

the arresting officer to testify regarding the contents of the warning to motorists only “to show

[Mr. Romanowski’s] continued pattern of combativeness,” or to explain and put in context

“everything” that Mr. Romanowski did when confronted by the police officer. We agree with

Mr. Romanowski that the contents of the warning are not relevant to his combativeness, which

was otherwise detailed extensively. It does not matter. The testimony was otherwise relevant to

establish Mr. Romanowski’s guilt. We can certainly affirm the circuit court’s ruling on that

basis. See People v. Dinelli, 217 Ill. 2d 387, 403 (2005) (a reviewing court “may affirm the

circuit court on any basis supported by the record”).

¶ 28 Of course, relevant evidence should be excluded “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Ill. R. Evid. 403 (eff. Jan. 1, 2011). “In this context, prejudice means an undue tendency to

suggest decision on an improper basis, commonly an emotional one, such as sympathy, hatred,

contempt, or horror.” (Internal quotation marks omitted.) People v. Lewis, 165 Ill. 2d 305, 329

(1995).

¶ 29 Mr. Romanowski makes a number of arguments in an attempt to convince us that

admission of this evidence was unduly prejudicial. He argues that the warning to motorists

“alerts the jury to the fact that the defendant is already being punished for th[e] incident, which

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implies that he was doing something wrong” and insists it is improper for a court to allow

“evidence that a defendant has already been subjected to a punishment for the same actions for

which he is currently on trial.” This argument is unconvincing. The civil penalties contained in

the warning to motorists serve not as a punishment for driving while under the influence, but as

an incentive for an arrested motorist to submit to blood-alcohol testing.

¶ 30 Mr. Romanowski argues that testimony concerning the warning to motorists is unduly

prejudicial because it “undermines the presumption of innocence.” But evidence of guilt always

undermines the presumption of innocence. Evidence is unduly prejudicial only if it “cast[s] a

negative light upon the defendant for reasons that have nothing to do with the case on trial”

(emphasis added and internal quotation marks omitted) (Lynn, 388 Ill. App. 3d at 278), or invites

the jury to decide the case “on an improper basis, commonly an emotional one, such as

sympathy, hatred, contempt, or horror” (internal quotation marks omitted) (Lewis, 165 Ill. 2d at

329). While the warnings may be circumstantial evidence of a defendant’s guilt, this does not

encourage a decision on any improper basis.

¶ 31 We likewise reject Mr. Romanowski’s argument that testimony regarding the contents of

the warning to motorists is unduly prejudicial because the jury may overvalue it and give it more

credence than is warranted. The cases that Mr. Romanowski cites involving polygraph and DNA

evidence are distinguishable, as they involve technical evidence a jury could view as “hav[ing] a

special aura of certainty and mystic infallibility.” (Internal quotation marks omitted.) People v.

Watson, 2012 IL App (2d) 091328, ¶ 33. The evidence at issue here is not technical in nature but

rather implicates basic common sense: a person is given an incentive to submit to testing and

nevertheless refuses to be tested, indicating that he knows the results will be unfavorable to him.

¶ 32 Other cases that Mr. Romanowski relies on, in which courts have ruled that a defendant’s

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refusal to take certain tests may be inadmissible also have no bearing here, where the statute

expressly makes the refusal to take a blood-alcohol test admissible. Compare People v. Eghan,

344 Ill. App. 3d 301, 312-13 (2003) (holding a defendant’s refusal to be tested for cocaine is

inadmissible), and People v. Ealy, 2015 IL App (2d) 131106, ¶¶ 49-50 (holding a defendant’s

refusal to submit to DNA testing is inadmissible). In reaching its decision, the Ealy court

specifically distinguished cases like this one where a DUI defendant refuses to submit to blood-

alcohol testing, on the basis that motorists have no constitutional right to refuse such testing.

Ealy, 2015 IL App (2d) 131106, ¶ 66 (citing People v. Johnson, 218 Ill. 2d 125, 140 (2005)).

¶ 33 We furthermore reject Mr. Romanowski’s argument that Bock “ignore[s] the maxim of

statutory construction that when a statute expressly includes one thing—evidence that a motorist

refused a breathalyzer—it may be inferred that all omissions therefrom—the contents of the

warning to motorists—are intended to be excluded.” As Bock points out, the statute does not

expressly make “only” the fact of the defendant’s refusal admissible, but rather “evidence of

refusal,” a phrase that invokes something broader. Cf. People v. Dabbs, 239 Ill. 2d 277, 283

(2010) (where the legislature has made “evidence of” prior offenses admissible in domestic

violence cases, courts have not limited this to certified copies of convictions, but have allowed

testimony by prior victims regarding the details of those offenses). Moreover, the “default” rule

is that evidence is admissible, at the circuit court’s discretion. Morgan, 197 Ill. 2d at 455. Thus,

this statute, that expressly makes specific evidence admissible should not be read to prohibit

admission of any omitted category of evidence. Such evidence, like the vast majority of evidence

not provided for by statute, remains subject to this default rule.

¶ 34 We must likewise reject Mr. Romanowski’s argument that the circuit court failed to

instruct the jury regarding the limited purpose for which it could consider the arresting officer’s

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testimony regarding the contents of the warning to motorists and that his attorney was ineffective

for failing to request such an instruction. As we conclude that this evidence was not for the

limited purpose of establishing Mr. Romanowski’s combative behavior, no limiting instruction

was required. The circuit court did not err in failing to give one and defense counsel was not

ineffective for failing to request one. Because there is no arguable basis for a claim of ineffective

assistance of counsel, we need not reach the State’s argument in its motion to strike taken with

this case that Mr. Romanowski failed to preserve the issue by raising it for the first time in his

reply brief.

¶ 35 Finally, Mr. Romanowski argues that, by amending the Illinois Vehicle Code eight times

since Elliott, but never changing section 11-501.2(c) to expressly make the contents of the

warning to motorists admissible, “the legislature has tacitly accepted Elliott’s holding.” We

reject this logic, particularly where seven of those amendments took effect after Bock and six

after Lynn, making it unlikely that the General Assembly’s decision not to amend the section was

in any way intended as an endorsement of the holding in Elliott. The cases Mr. Romanowski

relies on are furthermore distinguishable because they involved statutes that were construed by

the Illinois Supreme Court. See People v. Hairston, 46 Ill. 2d 348, 353 (1970) (where a statute

and its predecessors had been “repeatedly and consistently construed” by the supreme court, it

was “presumed that the legislature had acquiesced in the court’s exposition of the legislative

intent”); People v. Agnew, 105 Ill. 2d 275, 280 (1985) (concluding the legislature gave its

“implicit approval” of the supreme court’s holding that a statute imposing a fee applied to

appellate court proceedings when it later amended the statute only to change the fee amount).

¶ 36 We also note that, even if we were to conclude that the testimony at issue was admitted

in error, that error would have been harmless where other compelling evidence of Mr.

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Romanowski’s guilt was presented in this case. Mr. Romanowski argues that, by failing to

include citations to the record, the State has forfeited its argument that any error in this case was

harmless. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). Where the record is short and the issue is

a simple one, however, we may choose to address the issue despite a party’s failure to provide

citations to the record. People v. Johnson, 192 Ill. 2d 202, 206 (2000). We do so here.

¶ 37 A charge of aggravated driving while under the influence of alcohol is sustained where a

trier of fact concludes, beyond a reasonable doubt, that (1) the defendant was in actual, physical

control of a motor vehicle; (2) at the time of such control, the defendant was under the influence

of alcohol; and (3) at the time of such control, the defendant did not possess a driver’s license or

permit. 625 ILCS 5/11-501(a)(2), (d)(1)(H) (West 2012). “ ‘A person is under the influence of

alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are

so impaired as to reduce his ability to think and act with ordinary care.’ ” People v. Gordon, 378

Ill. App. 3d 626, 631 (2007) (quoting Illinois Pattern Jury Instructions, Criminal, No. 23.29 (4th

ed. 2000)). Here, Officer McGuire, the sole witness at trial, testified that Mr. Romanowski did

not have a valid driver’s license; was found in his running vehicle smelling of alcohol with three

empty beer cans in the rear seat; had to be helped from his vehicle; failed multiple field sobriety

tests; was belligerent, unintelligible, and threatening to law enforcement; urinated on the floor of

the police station during processing; and fell sound asleep following questioning. This testimony

was unrebutted. See Baker v. Hutson, 333 Ill. App. 3d 486, 493 (2002) (“Where the testimony of

a witness is neither contradicted by direct adverse testimony or by circumstances nor inherently

improbable and the witness has not been impeached, the testimony cannot be disregarded by the

fact finder.” (citing People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85 (1981))). Unlike Elliott, this

is not a case that “could have gone either way.” Elliott, 308 Ill. App. 3d at 740. An error is

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considered harmless where, “consider[ing] the totality of the evidence presented,” it “can safely

[be] conclude[d] that a trial without th[e] error would produce no different result.” People v.

Warmack, 83 Ill. 2d 112, 128-29 (1980). Such is the case here. Although Mr. Romanowski’s

refusal to submit to blood-alcohol testing despite the civil consequences of such a refusal was

relevant circumstantial evidence of his guilt, we can safely conclude that the jury would have

found him guilty even if it had not been aware of those consequences.

¶ 38 B. Public Defender Fee

¶ 39 Mr. Romanowski argues that the $450 fee the circuit court ordered him to pay as

reimbursement for the services of his public defender should be vacated where he was not

provided with notice of a hearing, the amount of attorney fees was not properly established, and

no effort was made to determine his ability to pay. Although Mr. Romanowski admits this issue

was not properly preserved for review, the State has made no argument for forfeiture. See People

v. Williams, 193 Ill. 2d 306, 347 (2000) (noting that forfeiture of an issue by the defendant is an

argument that must be made in the State’s brief or it is likewise forfeited). Our review of this

issue is de novo. People v. Elcock, 396 Ill. App. 3d 524, 538 (2009).

¶ 40 Section 113-3.1(a) of the Code of Criminal Procedure of 1963 (Code) authorizes the

circuit court to order a criminal defendant for whom legal counsel has been provided to pay a

reasonable sum to reimburse the county or state for that representation. 725 ILCS 5/113-3.1(a)

(West 2014). Before ordering payment, the circuit court is required to hold a hearing focusing on

“the foreseeable ability of the defendant to pay reimbursement as well as the costs of the

representation provided.” People v. Love, 177 Ill. 2d 550, 563 (1997). It is undisputed that no

such hearing was conducted here. The State filed its motion on July 10, 2013, and the circuit

court granted it that same day at Mr. Romanowski’s sentencing hearing, without questioning the

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public defender regarding the scope of his representation and without making any inquiry into

Mr. Romanowski’s ability to pay. The State concedes that the order requiring payment must

therefore be vacated, but urges us to remand the matter for a hearing that complies with section

113-3.1(a).

¶ 41 Section 113-3.1(a), however, clearly requires that such a hearing be held “no later than 90

days after the entry of a final order disposing of the case at the trial level.” 725 ILCS 5/113-

3.1(a) (West 2014). In support of remand, the State cites Love, in which our supreme court

vacated a public defender fee and remanded for a hearing without referencing the 90-day

requirement or addressing the fact that more than 90 days had passed since the circuit court

issued its order. Love, 177 Ill. 2d at 559-60, 565. The State urges us to join cases like People v.

Fitzpatrick, 2011 IL App (2d) 100463, ¶ 13, which acknowledge the statutory requirement but

nevertheless follow Love, without attempting to reconcile the apparent conflict.

¶ 42 In People v. Moore, 2015 IL App (1st) 141451, ¶ 41, however, this court recently

interpreted the statutory 90-day time limit as mandatory. There, the circuit court briefly

questioned the attorneys regarding the public defender’s involvement in the case but did not

address the defendant at all before ordering him to pay a public defender fee. Id. The Moore

court concluded that remand was improper, where no hearing took place within the required time

frame; “[t]here was no inquiry, however slight, into the issue of the defendant’s ability to pay the

public defender fee, the defendant’s financial circumstances and his foreseeable ability to pay or

the defendant’s financial affidavit, if any.” Id.

¶ 43 Moore expanded on our supreme court’s holding in People v. Somers, 2013 IL 114054,

¶ 15, that remand is proper where at least “some sort of a hearing,” albeit an insufficient one, is

initially held within the 90-day period specified in the Code. In Somers, although the circuit

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court failed to hold a formal hearing on the defendant’s ability to pay a public defender fee, it did

informally question the defendant regarding whether he suffered from any physical condition

preventing him from working, whether he believed he could obtain employment upon his release

from prison, and whether he planned to use his future income to pay his fines and costs. Id.

Noting that the problem was thus “not that the trial court did not hold a hearing within 90 days,

but that the hearing that the court did hold was insufficient to comply with the statute,” the

supreme court remanded for a new hearing that complied with section 113-3.1(a). Id. ¶¶ 15, 18.

¶ 44 Here, unlike Somers but as in Moore, no inquiry into Mr. Romanowski’s ability to pay

was made within the statutory time period. Accordingly, we vacate the public defender fee and

decline the State’s invitation to remand this matter for a belated hearing not in compliance with

section 113-3.1(a).

¶ 45 CONCLUSION

¶ 46 For the foregoing reasons, we affirm Mr. Romanowski’s conviction and sentence for

aggravated driving while under the influence of alcohol and vacate the circuit court’s order

requiring Mr. Romanowski to pay a $450 public defender fee.

¶ 47 Affirmed in part, vacated in part.

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