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Supreme Court Date: 2019.02.04
12:37:07 -06'00'
People v. Gocmen, 2018 IL 122388
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court: AHMET GOCMEN, Appellee.
Docket No. 122388
Filed September 20, 2018
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Will County, the Hon.
Carmen Goodman, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment reversed.
Cause remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield, and James W.
Appeal Glasgow, State’s Attorney, of Joliet (David L. Franklin, Solicitor
General, Michael M. Glick and Leah M. Bendik, Assistant Attorneys
General, of Chicago, and Patrick Delfino, Lawrence M. Bauer, and
Mark A. Austill, of the Office of the State’s Attorneys Appellate
Prosecutor, of Ottawa, of counsel), for the People.
Elizabeth Butler, of Northbrook, for appellee.
Justices JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, Theis,
and Neville concurred in the judgment and opinion.
OPINION
¶1 Upon defendant’s arrest for driving under the influence of drugs (625 ILCS 5/11-501(a)(4)
(West 2014) (DUI/drugs)), the arresting officer requested that he submit to chemical testing
and warned him that his refusal would result in statutory summary suspension of his driver’s
license. Id. § 11-501.1(c). After he refused to submit to chemical testing, his driver’s license
was summarily suspended pursuant to section 11-501.1(e) of the Illinois Vehicle Code. Id.
§ 11-501.1(e). The circuit court of Will County granted his petition to rescind (id.
§ 2-118.1(b)), and the appellate court affirmed (2017 IL App (3d) 160025). This court granted
the State’s petition for leave to appeal pursuant to Illinois Supreme Court Rules 315 (eff. Mar.
15, 2016) and 612(b)(2) (eff. July 1, 2016) and, for the reasons that follow, reverses the
judgment of the circuit court and the appellate court.
¶2 BACKGROUND
¶3 Defendant filed a motion to rescind, and at the hearing that followed, he argued that the
officer lacked reasonable grounds to make the arrest. The only witness called by the defendant
was the arresting officer, Adam Beaty, who testified that he had been a police officer for two
years and that he had received DUI/alcohol detection training, but no specific DUI/drug
detection training.
¶4 According to his testimony on direct examination, at 11:10 a.m. on September 14, 2015, he
responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a
seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer
was in the eastbound lane of Route 52, with the passenger side tires on the grass and the
driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was
running. The officer observed defendant behind the wheel, with his foot on the brake and his
left hand on the steering wheel.
¶5 Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He
insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59.
Eventually, the paramedics convinced him to leave the vehicle; they placed him in the
ambulance and transported him to the hospital.
¶6 Asked about his other observations at the scene, the officer testified that he saw a Red Bull
can “on the passenger’s side in plain view.” The can had been cut or torn in half and had burn
marks on its interior. On the outside bottom surface of the can,1 he saw a brown residue. He
performed a “NARK swipe” test of the residue, which, he said, showed the presence of
1
The appellate court opinion incorrectly states that the residue was on the inside of the can. 2017 IL
App (3d) 160025, ¶ 5.
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“opiates.” He testified that although he had been trained to conduct this test, he had not
previously performed it in the field.
¶7 He also saw an uncapped one-milliliter syringe on the passenger seat. He described the
syringe as having been “used.” He also found a small plastic bag containing a brown granular
substance in defendant’s wallet in the center console. Results of testing of this substance were
not available at the time of the hearing.
¶8 Asked if he made any other observations of the defendant before he left the scene, the
officer testified that, “[o]ther than what paramedics told me, no.” He did not conduct any field
sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”
¶9 Asked about the basis for his decision to arrest defendant, the officer testified that he based
his decision on the results of the “NARK swipe, which immediately turned from pink to blue,
indicating the positive presence of opiates,” the syringe “in his immediate area of control,” and
the small plastic bag containing a granular substance that he found in the defendant’s wallet in
the center console of the vehicle. He also testified that prior to the arrest defendant told him
that he was diabetic.
¶ 10 On cross-examination, the officer testified that he spoke to the paramedics at the scene to
ask if they had seen any signs of intoxication. They reported that defendant did not smell of
alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used.
Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart
rate of 144 beats per minute, and was drifting in and out of consciousness.
¶ 11 With regard to his training, the officer explained that he was taught how to perform the
NARK swipe during his field training after he was hired as a police officer. Prior to this event,
he had not previously performed the test in the field. At the scene, he removed latex gloves
from a sealed package and put them on. Then he opened the aluminum foil package containing
the swipe. When he touched it to the bottom of the can, “it immediately turned a blue color,”
indicating the “positive presence of opiates.” He further testified that he used this information
as a basis for arresting defendant.
¶ 12 The defense rested. The trial court denied the State’s motion for a directed finding and
ruled that the burden had shifted to the State. The State did not present any evidence but argued
that the officer’s testimony demonstrated that he made a reasonable conclusion based on what
he had observed.
¶ 13 The court granted defendant’s petition to rescind, finding that the officer did not have
reasonable grounds to believe defendant had been in control of the vehicle while under the
influence of alcohol or drugs. After stating that it was “putting the evidence in light of the
petitioner,” the court stated that, “unlike alcohol,” a showing of drug intoxication “can’t be
based purely on lay testimony”; the witness must be qualified as an expert and must establish
the effects of the drugs. Further, the court stated that “[s]yringes and such are also connected to
a diabetic, depending on the nature of your diabetes. Track marks probably would be found if
you have to take insulin shots every single day.” Although defendant was not arrested for
DUI/alcohol and the officer did not testify to any suspicion that alcohol was involved, the trial
court noted that “[e]ven the paramedics, according to the officer’s testimony, indicated they
didn’t even smell any alcohol.” In addition, although the officer tested for the presence of a
drug, there was no evidence that “this particular individual” had taken “this particular drug” or
that it was “in their [sic] system, and not related to him being a diabetic, and *** having an
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accident.” Concluding, the trial court stated that, to show probable cause, “an officer must also
show the [effects] of the drug on the individual that he found, and none of that was done.” The
trial court denied the State’s motion to reconsider.
¶ 14 The appellate court acknowledged the facts regarding “(1) the physical symptoms
defendant was presenting, (2) the substance in defendant’s wallet, (3) the syringe, (4) the track
mark, and (5) the Red Bull can which tested positive for opiates.” Nevertheless, the appellate
court affirmed, agreeing with the trial court that these facts were insufficient to establish
probable cause for an arrest for DUI/drugs because the officer “had no training or experience
that would enable him to distinguish between a diabetic reaction and a drug reaction.” 2017 IL
App (3d) 160025, ¶ 11. The appellate court further noted that defendant’s physical symptoms
were reported to the officer by the paramedics; the officer did not directly observe them. Id.
¶ 14. The court questioned whether the NARK swipe test was properly performed because the
officer testified it tested positive for opiates while cocaine is not an opiate. Id. Finally, a person
with no specialized training could not properly opine on the “detection of controlled
substances,” unlike the detection of alcohol use, the effects of which are “commonly known.”
(Internal quotation marks omitted.) Id. ¶ 15.
¶ 15 The dissent noted that the arresting officer need not have been “absolutely correct” in his
conclusion that the driver was under the influence of drugs; he need only have been reasonable
in his assessment. Id. ¶ 24 (Schmidt, J., dissenting). The dissent also made the point that the
defendant did not testify at the rescission hearing, so the only evidence regarding his alleged
diabetes was the officer’s testimony that defendant said he was diabetic. Based only on that
uncorroborated statement, the trial court and the appellate court believed that the defendant
was diabetic and that his symptoms could have been caused by this medical condition. Id. ¶ 25.
Yet, the dissent noted, defendant had the burden of proof at that stage of the proceedings, and
he failed to put on any evidence to support his statement that he was diabetic. Indeed, the
dissent observed, defendant was hardly “the first drug user to tell police he is diabetic upon
being found with a hypodermic syringe.” Id. ¶ 28.
¶ 16 In its modification of the opinion upon denial of rehearing, the majority responded to the
dissent, noting that the trial court found that defendant met his burden of showing a prima facie
case for rescission, “as evidenced by its denial of the State’s motion for directed finding.” Id.
¶ 19 (majority opinion). The appellate court further stated that, because the State did not
present additional evidence after its motion for directed finding was denied, it did not meet its
burden of proof. Id. The court limited its holding to situations where the officer lacked “any
training or experience in DUI drugs and defendant provided an alternative explanation of
diabetes” via the officer’s own testimony. Id. In such a circumstance, the officer “would not
have been able to form a reliable opinion on the cause of defendant’s condition.” Id. Because
the State “failed to rebut” the defendant’s prima facie case for rescission, rescission was
proper. Id. However, had the officer “had any experience or training or had the State provided
some evidence to rebut the rescission, the outcome might have been different.” (Emphasis in
original.) Id.
¶ 17 ANALYSIS
¶ 18 A motorist may request a judicial hearing for rescission of a statutory summary suspension
in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a) (West 2014). The
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scope of the hearing is limited to four specific statutory grounds for rescission. One of the
issues that may be raised is “whether the officer had reasonable grounds to believe that the
person was driving or in actual physical control of a motor vehicle upon a highway while under
the influence of alcohol, other drug, or combination of both.” Id. § 2-118.1(b)(2).
¶ 19 This court has equated the “reasonable grounds” standard with the probable cause standard
applied in the context of search and seizure under the fourth amendment. People v. Wear, 229
Ill. 2d 545, 560, 563 (2008). Under this standard, probable cause exists when the facts known
to the officer at the time are sufficient to lead a reasonably cautious person to believe that the
arrestee has committed a crime, based on the totality of the circumstances. The standard is the
probability of criminal activity, not proof beyond a reasonable doubt or even that it be more
likely than not. Id. at 563-64.
¶ 20 The motorist has the initial burden of establishing a prima facie case for rescission. If he
does so, the burden shifts to the State to come forward with evidence justifying the suspension.
Id. at 559-60; see also People v. Orth, 124 Ill. 2d 326, 338, 340 (1988) (motorist has initial
burden of making prima facie case for rescission; to make prima facie case, defendant must
present evidence to support at least one of the statutory grounds for rescission).
¶ 21 When reviewing a decision to rescind a statutory summary suspension, we apply the
two-part standard of review applicable to review of suppression hearings. Wear, 229 Ill. 2d at
561. The trial court’s factual findings are reviewed under the manifest weight of the evidence
standard, while the ultimate legal ruling regarding rescission is reviewed de novo. Id. at
561-62.
¶ 22 We note that the trial court’s statement that it would review the evidence in the light most
favorable to the defendant at the prima facie stage was incorrect. Because the defendant has
the burden at this stage, the trial court may not favor his case in this manner.
¶ 23 As appellant, the State formulates this issue for this court as whether, regardless of the
officer’s training or experience, the presence of drug-related evidence in the defendant’s
vehicle and on his person, along with his physical symptoms, provided reasonable grounds for
the arrest. We conclude, however, that a more precise formulation of the issue is whether
defendant made a prima facie case that the officer lacked reasonable grounds to arrest him for
DUI/drugs. This requires us to answer two questions. First, must an officer be qualified as an
expert to testify regarding his inference from the totality of circumstances that a motorist was
driving under the influence of drugs? And, if not, did the totality of the circumstances in the
present case provide reasonable grounds for the arrest of defendant for DUI//drugs?
¶ 24 The Need for Expert Testimony
¶ 25 Under our rules, a witness who is not an expert may testify to his opinions or inferences
unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid.
701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an
expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011).
¶ 26 The trial court found that the officer lacked probable cause to arrest defendant for
DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the
appellate court concluded that a person with no specialized training could not properly opine
on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of
which are “commonly known.” (Internal quotation marks omitted.) 2017 IL App (3d) 160025,
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¶ 16. In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303
Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985). 2017 IL App (3d) 160025,
¶ 16.
¶ 27 In Shelton, an officer testified at a criminal jury trial that the defendant was under the
influence of drugs, basing his conclusion on the manner in which he was driving, his conduct
during the traffic stop, his failing all of the field sobriety tests given, and his statement to the
officer that he was “ ‘on Tylenol 3 with codeine.’ ” Shelton, 303 Ill. App. 3d at 917-18. During
the traffic stop, the defendant’s behavior included telling the officer that he did not have a
driver’s license before giving him the license, his suggestion that the officer should go for a
ride with him, his statement that he was “ ‘getting ready to run’ ” followed by a statement that
he was just kidding, his constant talking, his inability to stand still, his lack of balance, and his
threats against the officer and his family. Id.
¶ 28 After finding that the evidence was sufficient to prove the defendant guilty of DUI/drugs
beyond a reasonable doubt (id. at 922), the appellate court reversed the conviction on three
grounds, one of which was that the State did not lay a proper foundation for the officer’s
opinion testimony that the defendant was under the influence of drugs (id. at 926-27). The
court stated that, while a lay person could testify regarding alcohol intoxication, “the effects of
drugs are not commonly known, and training and experience are necessary to understand their
effects on people.” Id. at 925. The court also noted that the officer had “ ‘limited training’ ” in
detecting drug use and lacked “extensive personal experience with drug users.” Id. at 926.
¶ 29 We have reservations about the court’s analysis in Shelton. Although it found the evidence
presented sufficient to support the jury’s verdict beyond a reasonable doubt, the appellate court
in that case nevertheless commented that the trial court found “ ‘no evidence *** in the
record’ ” of the effects of any drugs (id.), apparently discounting the defendant’s speeding, his
odd and agitated behavior during the traffic stop, and his failure of field sobriety tests (id. at
917-18). While such conduct is not always indicative of drug intoxication, it was consistent
with the defendant’s being under the influence in light of his admission that he was “on” a
prescription pain killer. We, thus, disagree with the Shelton court that expert testimony was
necessary to present to the jury the officer’s assessment that the defendant was under the
influence. To the extent that Shelton requires expert testimony in every case in which an
officer’s finding of probable cause is based on his or her inference from the totality of
circumstances that the defendant was under the influence of drugs, it is hereby overruled.
¶ 30 Turning to Stout, the defendant argues that our holding in that case stands for the
proposition that “skill and knowledge are essential to an officer’s determination of whether
probable cause exists” and that the individual police officer’s training and experience “are
determinative in showing that the officer’s decisions were not based on hunches and
prejudices.” He mischaracterizes our holding.
¶ 31 In Stout, this court stated that an “officer’s experience and training in the detection of
controlled substances” must be taken into account, not that expertise and specialized training
are essential or determinative. Stout, 106 Ill. 2d at 87. In that case, the police officer conducted
a warrantless search of the defendant during a traffic stop after he detected the odor of burning
cannabis emanating from his car. Id. at 81. The trial court granted the defendant’s motion to
suppress the drugs found during the search, and the appellate court affirmed. The sole issue
before this court was “whether the detection of the odor of cannabis emanating from the
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defendant’s vehicle gave the arresting officer probable cause to conduct a warrantless search.”
Id. at 82.
¶ 32 This court noted that what “constitutes probable cause for searches and seizures must be
determined from the standpoint of the arresting officer, with his skill and knowledge, rather
than from the standpoint of the average citizen under similar circumstances.” Id. at 86. The
officer testified that he had smelled burning cannabis on numerous occasions during his seven
years of experience as a patrol officer. Id. at 87. Holding that this was a sufficient basis to
establish probable cause, this court rejected the dissent’s argument that additional
corroboration of the presence of cannabis was required. Id. at 88. We did not require expert
testimony or evidence of specific training to support the officer’s finding of probable cause in
every case where probable cause is based on the officer’s assessment regarding the presence or
use of drugs.
¶ 33 Further, Stout is consistent with the standard that probable cause to arrest exists when the
facts known to the officer at the time of the arrest are sufficient to lead a “reasonably cautious
person” to believe that the arrestee has committed a crime, based on the totality of the
circumstances. See Wear, 229 Ill. 2d at 563-64. A “reasonably cautious person” is not an
“average citizen” or the familiar “reasonable person.” As we noted in Stout, the question of
probable cause must be viewed from the standpoint of the arresting officer, acting with
reasonable caution.
¶ 34 In the end, Stout’s holding goes to the credibility of the officer’s testimony regarding
probable cause. An officer with many years of experience or with specialized training relevant
to the issue may be more credible than a rookie. That said, nothing in our precedent requires
expert testimony in every case involving the question of whether a defendant was under the
influence of drugs. The issue in Stout was the reliability of the officer’s conclusion that the
odor he smelled was burning cannabis and not incense, stale food, or bad cologne. His
experience and personal familiarity with the scent of burning cannabis were relevant to the
existence of probable cause and were properly taken into consideration by the court.
¶ 35 In some circumstances, expert testimony regarding the basis for an officer’s finding of
probable cause is required. In People v. McKown, 236 Ill. 2d 278 (2010), the defendant was
convicted of DUI/alcohol, based in part on the results of the horizontal gaze nystagmus (HGN)
test performed by the arresting officer. The defendant argued on appeal that the HGN test did
not meet the Frye standard for admissibility of scientific evidence. We held that “evidence of
HGN field-sobriety testing, when performed according to *** protocol by a properly trained
officer, is admissible under the Frye test for the purpose of showing whether the subject has
likely consumed alcohol and may be impaired.” Id. at 306. “A properly trained police officer
who performed the HGN field test in accordance with proper procedures may give expert
testimony regarding the results of the test.” Id.
¶ 36 Although we found that the HGN test met the Frye standard, this court reversed because a
proper foundation had not been laid for the police officer’s testimony regarding the test he
administered. Because the record contained other evidence that could support a guilty verdict
even without the HGN evidence, the case was remanded for a new trial. Id. at 315.
¶ 37 In the present case, there is no question that the defendant was impaired. The probable
cause question is whether the relatively inexperienced officer could have reasonably
concluded that the defendant’s obvious impairment was due to his use of drugs. Had the officer
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conducted field sobriety tests, his experience and expertise in conducting such tests and
interpreting the results would be at issue. However, no such tests were conducted, and the
results of such tests were not the basis for the arrest. The officer’s conclusion that defendant
was under the influence of drugs was not based on scientific, technical, or specialized
knowledge that required specialized training or experience.
¶ 38 The trial court and the appellate court held categorically that a police officer could not
opine as to whether a motorist was under the influence of drugs without being qualified as an
expert witness. We reject this conclusion, which is not supported by our precedent.
¶ 39 Totality of the Circumstances
¶ 40 Having rejected the lower courts’ insistence on expert testimony in this case, we turn to the
question of whether defendant made a prima facie case that the officer lacked probable cause
to arrest him for DUI/drugs. This question requires assessment of the totality of the
circumstances. Wear, 229 Ill. 2d at 563-64.
¶ 41 The offense of DUI/drugs requires that the individual “drive or be in actual physical
control” of a vehicle while “under the influence of any other 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). Defendant was behind the wheel of the vehicle, with the motor running, on Route 52, so
he was in actual physical control of a motor vehicle on a state highway. Clearly, he was
incapable of driving safely, having driven his sport utility vehicle off the road while
semiconscious. The only question is whether he was impaired as the result of a medical
emergency, the ingestion of drugs or alcohol, or some combination thereof.
¶ 42 The underlying facts are not in dispute. Thus, we are not considering whether the trial
court’s factual findings were against the manifest weight of the evidence. Our review is
de novo, considering whether the trial court properly found that defendant made a prima facie
case for rescission. Wear, 229 Ill. 2d at 561-62.
¶ 43 First, defendant’s physical condition was consistent with drug use. The trial court,
however, overlooked defendant’s semiconscious state and his disorientation, which a
reasonably cautious person might suspect was due to drug or alcohol ingestion. The appellate
court also discounted defendant’s physical symptoms because the officer “never observed
defendant and only knew these symptoms by speaking to the paramedics.” 2017 IL App (3d)
160025, ¶ 14. However, the officer did observe the defendant at the scene and at the hospital,
where they spoke. Further, hearsay is a permissible basis for a finding of probable cause.
People v. Macias, 39 Ill. 2d 208, 213 (1968) (probable cause “may be founded on hearsay
evidence” and “is based upon the factual and practical considerations of everyday life upon
which reasonable and prudent men, not legal technicians, act”); see also People v. Horine,
2017 IL App (4th) 170128, ¶ 16 (in hearing on defendant’s petition to rescind statutory
summary suspension, “the officer’s testimony, even if it includes hearsay, is permissible as it
provides the court with the necessary information to rule on the petition. Although such
testimony may constitute impermissible hearsay at trial, such testimony is permissible in this
setting.”). Indeed, if this were not the case, a police officer could not find probable cause based
on the statement of a victim or a witness to a crime. Thus, the officer properly relied on his own
observations, information provided by the paramedics, and his observations of their interaction
with defendant. While defendant’s physical condition, standing alone, did not demonstrate that
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his impairment was drug-induced, it was consistent with drug use and supports the officer’s
conclusion.
¶ 44 Second, the officer performed a swipe test on the burned Red Bull can and detected the
presence of opiates. The appellate court found it “curious” that a “Cocaine ID” test would be
“used to test for opiates when cocaine is not an opiate,” citing People v. Vernor, 66 Ill. App. 3d
152, 154-55 (1978), for the proposition that opiates are narcotic drugs while cocaine is not. On
this basis, the appellate court concluded that “it is unclear whether Beaty even administered the
correct type of test, and if so, whether he administered it correctly.” 2017 IL App (3d) 160025,
¶ 14.
¶ 45 However, while the appellate court stated that the officer conducted a “NARK Cocaine ID
Swipe” of the residue, the officer did not mention the word “cocaine” in his testimony. He
twice referred to the “NARK swipe” and both times stated that it tested positive for “opiates.”
The only mention of a “Nark Cocaine ID Swipe” was by the State’s Attorney on
cross-examination, when asking the officer about the swipe test. If anyone misspoke, it was the
State’s Attorney, not the officer. We note that NARK tests are available for a variety of
substances, including opiates and cocaine. See Nark II Presumptive Drug Tests, Evident, Inc.,
https://www.shopevident.com/category/drugs-narcotics/nark-ii-presumptive-drug-tests (last
visited Sept. 17, 2018) [https://perma.cc/38FN-WSVN]. Thus, the appellate court’s inference
from the testimony is unfounded. The officer performed a swipe test for opiates, which
revealed the presence of opiates.
¶ 46 Further, defendant did not offer an innocent explanation for the presence of the
burn-marked metal can, and none is readily apparent. Even a rookie police officer would be
aware of this commonly known device for “cooking” drugs prior to injection, as would any
person who watches crime dramas on film or television. Combined with defendant’s physical
and mental state, the positive swipe test for opiates supports probable cause for arrest for
DUI/drugs.
¶ 47 Third, other evidence showed the likely, or at least possible, presence of illicit drugs. The
State asserts that the appellate court majority erred by giving “no evidentiary weight” to the
packet of brown granular substance the officer found in defendant’s wallet merely because test
results of the substance were not available at the time of the hearing. Instead, the State argues,
the presence of the substance was a factor supporting probable cause to conclude that
defendant was under the influence of drugs. In support of this position, the State cites People v.
Davis, 33 Ill. 2d 134, 137 (1965), for the proposition that the presence of a substance that might
be illicit is sufficient grounds to make a drug-related arrest, even though the substance had not
yet been tested.
¶ 48 The State’s reliance on Davis overlooks the fact that defendant was not being arrested for
possession of illegal drugs. Rather, he was arrested for driving under the influence of drugs.
Although it was reasonable under the circumstances for the officer to suspect that the
substance was an illicit drug, the mere presence of the unidentified substance does
not—standing alone—provide reasonable suspicion that the individual in possession of the
substance was under the influence. However, the packaging, the location of the small plastic
bag, and the appearance of its contents support the officer’s inference that the driver was
drug-impaired, especially considering other circumstances. Indeed, given the presence of this
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suspicious substance and the absence of insulin and a blood glucose meter in the vehicle, it was
a reasonable inference that the defendant had recently injected a substance other than insulin.
¶ 49 Fourth, there was evidence of intravenous drug use by the defendant. The officer’s
testimony, which alluded to a “fresh” track mark, does not clearly distinguish between the sort
of “track marks” that are caused by repeated intravenous drug use and a single mark on his arm
consistent with a recent intravenous injection, as by using the syringe found in the vehicle.
Both the trial court and the appellate court accepted as fact that the defendant’s arms showed
track marks indicative of repeated intravenous injections. Because this evidence was elicited
by the defendant, any failure to clarify is his responsibility. Thus, on the record before us,
based on testimony elicited by the defendant, we conclude that he had not only a mark showing
a recent intravenous injection but also track marks indicative of repeated intravenous drug use.
¶ 50 That such track marks are frequently seen in users of illegal drugs is a matter of common
knowledge. Courts frequently accept such testimony without the need for explanation by an
expert. See, e.g., People v. House, 232 Ill. App. 3d 309, 314 (1992) (defense counsel, arguing
that defendant was eligible for Treatment Alternatives to Street Crime (TASC) sentencing for
burglary, called court’s attention to “ ‘track marks in his arm’ ”); People v. $1,002 United
States Currency, 213 Ill. App. 3d 899, 901 (1991) (officer “observed ‘track marks,’ or
collapsed veins”; defendant admitted to officer that he was a “ ‘junky’ ”).
¶ 51 Both the trial court and the appellate court concluded that these track marks could have
been caused by regular injections of insulin for diabetes. If they were basing their conclusions
on what they believed was common knowledge, they were incorrect. 2 Absent common
knowledge, they lacked any evidentiary basis for this conclusion. Indeed, the trial court and the
appellate court demanded a level of expertise from a police officer that they lacked, yet they
opined, inaccurately, on the technique for insulin injection. At oral argument before this court,
defense counsel acknowledged that insulin is not injected intravenously and, thus, cannot
cause the kind of track marks associated with illegal drug use.
¶ 52 Finally, the lower courts gave substantial weight to defendant’s uncorroborated statement
to the officer that he was diabetic, presumably to explain the presence of the used syringe.
¶ 53 We begin by noting the dissent’s observation that “[i]f the trial court believed anything, it
could only believe that the officer truthfully testified,” that the defendant said he was diabetic.
2017 IL App (3d) 160025, ¶ 25 (Schmidt, J., dissenting). Because defendant did not testify at
the hearing, the trial court could make no assessment of the credibility of his statement to the
police officer that he was diabetic.
¶ 54 Defendant did not put on evidence that he told the paramedics at the scene that he was
diabetic or that his condition was a result of an episode of high or low blood sugar. Had he done
so, or had he been wearing a medic-alert bracelet, the paramedics would have acted
accordingly. A simple blood test would have revealed his blood sugar level, and they would
have started appropriate treatment immediately. A reasonably cautious officer, observing such
2
Insulin is injected subcutaneously into the fatty layer between skin and muscle, not intravenously.
If not a matter of common knowledge, this information is readily available. See Drugs and
Supplements: Insulin (Parenteral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-
supplements/insulin-parenteral-route/proper-use/drg-20069501 (last updated Jan. 1, 2016)
[https://perma.cc/23TA-FE3T].
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medical intervention, would have considered whether the defendant’s condition was caused, at
least in part, by his medical condition. Instead of seeking immediate treatment, however, the
defendant waited until he spoke to the officer at the hospital at the time of his arrest to mention
his alleged medical condition.
¶ 55 Defendant’s statement to the officer that he is diabetic was not corroborated by any
physical evidence or circumstance known to the officer at the time of the arrest. The officer
found evidence of opiates in the vehicle but no insulin or blood glucose meter. In sum, there
was no evidence available to the officer at the time of the arrest that defendant’s impairment
may have been due, even in part, to diabetes.
¶ 56 The appellate court expressed concern about the officer’s inability to distinguish between
symptoms of diabetes and drug use. We do not expect police officers in the field to make
differential diagnoses—only to determine based on the totality of the circumstances whether
an impaired driver is under the influence of alcohol or drugs, even if he or she may also have a
medical condition.
¶ 57 We also reject defendant’s position that probable cause was lacking because it was based
on “mere proximity to suspicious items.” In this case, the totality of the circumstances supports
the officer’s conclusion that defendant had been driving under the influence of drugs. The
semiconscious defendant showed signs of recent intravenous injection, he possessed a used
syringe, and the only injectable substance present was an opiate, apparently prepared for
injection in the depression on the bottom of the aluminum beverage can.
¶ 58 When the reliability of blood alcohol test results was at issue, this court stated that a
prima facie case for rescission could be made by producing evidence “of any circumstance
which tends to cast doubt on the test’s accuracy, including, but not limited to, credible
testimony by the motorist that he was not in fact under the influence of alcohol.” Orth, 124 Ill.
2d at 341. Thus, in the present case, where the motorist/defendant challenged the
reasonableness of the officer’s belief that he was under the influence of drugs, sufficient
evidence would consist of any circumstance that tends to cast doubt on the reasonableness of
the officer’s inference, which could include credible testimony by the motorist that he was not,
in fact, under the influence of drugs.
¶ 59 The trial court found that the defendant met this burden based solely on the testimony of
the officer, without putting on any evidence to support his claim that his impairment was or
could have been a result of his medical condition. He based his case entirely on the claim that
the officer was not qualified to conclude that he was under the influence of drugs. The
appellate court noted that the trial court found that the burden had shifted to the State to justify
the license suspension. Because the State rested its case without providing “any evidence to
justify the suspension,” the appellate court concluded that the State did not meet its burden of
proof. 2017 IL App (3d) 160025, ¶ 19.
¶ 60 Applying the standard we established in Orth, we find no evidence of any circumstance
that tends to cast doubt on the reasonableness of the officer’s inference. Thus, we conclude that
the trial court erred in finding that the burden shifted to the State. The defendant failed to
present a prima facie case. Thus, the trial court erred by not granting the State’s motion for a
directed finding.
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¶ 61 CONCLUSION
¶ 62 Expert testimony is not required in every case for an officer to testify to his opinion that a
motorist was under the influence of drugs based on his inference from the totality of the
circumstances. When, as here, the totality of circumstances at the time of the arrest is sufficient
to lead a reasonably cautious person to believe that an individual was driving under the
influence of drugs, probable cause exists. Thus, defendant failed to make a prima facie case
that the rescission of his license was improper, and the burden did not shift to the State.
¶ 63 For the foregoing reasons, we reverse the judgment of the appellate court, vacate the
rescission order entered by the trial court, and remand to the trial court for further proceedings
consistent with this judgment.
¶ 64 Appellate court judgment reversed.
¶ 65 Circuit court judgment reversed.
¶ 66 Cause remanded.
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