People v. Lenz

2019 IL App (2d) 180124

141 N.E.3d 359

435 Ill.Dec. 849

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Lawrence J. LENZ, Defendant-Appellant.

The People of the State of Illinois, Plaintiff-Appellee,

v.Lawrence J. Lenz, Defendant-Appellant.

Nos. 2-18-0124 & 2-18-0125 cons.

Appellate Court of Illinois, Second District.

Opinion filed July 24, 2019

Paul P. Moreschi, of Law Offices of Paul P. Moreschi, P.C., of Oakbrook Terrace, for appellant.

Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for the People.

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Following a two-day bench trial on September 27 and October 27, 2017, the trial court convicted defendant, Lawrence J. Lenz, on all counts in two separate cases, Nos. 15-DT-2963 and 15-TR-99963. The cases arose from two separate traffic incidents that occurred on the same day. On appeal, defendant argues for the vacatur of his convictions in No. 15-TR-99963, because that case was set for status, not trial, on September 27 and October 27, and therefore his due process rights were violated when the trial court adjudicated the counts. As for No. 15-DT-2963, defendant argues that (1) the court erred when it allowed, and relied on, testimony concerning No. 15-TR-99963; (2) the court erred in admitting the results of chemical testing of defendant's urine; and (3) the evidence was insufficient to support defendant's convictions. For the following reasons, we vacate defendant's convictions in No. 15-TR-99963 but affirm his convictions in No. 15-DT-2963 and remand the cause.

¶ 2 I. BACKGROUND

¶ 3 A. Pretrial Proceedings

¶ 4 Defendant was charged with two sets of traffic offenses arising from separate incidents on November 3, 2015. In No. 15-TR-99963, defendant was charged with three counts alleging offenses that occurred at 1:59 p.m. in Naperville. Count I charged defendant with leaving the scene of an accident involving damage to a vehicle ( 625 ILCS 5/11-402(a) (West 2014)), a Class A misdemeanor. Count II alleged failure to reduce speed to avoid an accident (id. § 11-601(a)), a petty offense. Count III alleged failure to provide information after damaging an unattended vehicle (id. § 11-404(a)), a Class A misdemeanor.

¶ 5 In No. 15-DT-2963, defendant was charged with four counts alleging offenses that occurred at 2:15 p.m. in Warrenville. Counts I and IV charged defendant with driving under the influence (DUI), a Class A misdemeanor (id. § 11-501(c)(1)). Specifically, count I alleged that defendant drove while "under the influence of any * * * drug or combination of drugs to a degree that render[ed] [him] incapable of safely driving" (id. § 11-501(a)(4)), while count IV alleged that defendant drove with an amount of cannabis in his system resulting from unlawful use (id. § 11-501(a)(6)). Counts II and III charged, respectively, disobeying a traffic-control device (id. § 11-305(a)) and failing to reduce speed to avoid an accident (id. § 11-601(a)), both petty offenses.

¶ 6 In November 2016, defendant filed a motion in limine in No. 15-DT-2963 to exclude the results of testing of a urine sample that he provided following his arrest on November 3, 2015. Defendant contended that the testing did not comply with the standards for urine collection set forth in section 1286.330 of Title 20 of the Illinois Administrative Code (Administrative Code) ( 20 Ill. Adm. Code 1286.330 (2007) ), which was promulgated under section 11-501.2 of the Illinois Vehicle Code (Vehicle Code) ( 625 ILCS 5/11-501.2 (West 2014) ).

¶ 7 The trial court continued the motion in limine to September 27, 2017, and also set the case for a bench trial on that date.

¶ 8 As for No. 15-TR-99963, the case was twice set for a bench trial, but both dates were stricken. On July 20, 2017, the trial court set the case for status on September 27, 2017.

¶ 9 B. Trial

¶ 10 On September 27, 2017, the trial court called both cases. Defense counsel noted that defendant had signed a jury waiver. After querying defendant, the court accepted the jury waiver. The record contains a written waiver for No. 15-DT-2963. There is no waiver in the record for No. 15 DT 99963.

¶ 11 After disposing of some housekeeping matters, the court had this discussion with the parties as to which case was ready for trial:

"THE COURT: * * * Are we trying the TR case [ (No. 15-TR-99963) ] and the DT case [ (No. 15-DT-2963) ] at the same time or are they two separate cases?

MS. MONDRY [ (DEFENSE ATTORNEY) ]: Judge, it arises out of the same course of conduct. I mean it doesn't matter to us what the State wants to do. If they are not prepared to go on the traffic case [ (No. 15-TR-99963) ] we can deal with that.

THE COURT: The DT alleges disobeying traffic control device, driving too fast for conditions. They both have failure to reduce speed to avoid accident tickets. One of them. They are different tickets though.

MS. MONDRY: Yes.

THE COURT: * * * [T]he DT file * * * alleges * * * 2:15 p.m. and then the other one alleges * * * 13:59 p.m. which I suppose by my calculation is 15 minutes earlier. So, are we just going to trial on the DT?

MS. CIESIELSKI [ (ASSISTANT STATE'S ATTORNEY) ]: Judge, I think just the DT. My impression was this one [ (No. 15-TR-99963) ] was tracking for status.

THE COURT: Okay.

MS. CIESIELSKI: So we are not ready on that one.

THE COURT: This is why I ask those questions before trial."

¶ 12 The court proceeded to remark that it would defer ruling on defendant's motion in limine to exclude the urine-test results. The court would wait until the results were offered at trial and then determine if the State had laid a proper foundation.

¶ 13 The bench trial ensued. The State called Warrenville police officer Brian Feiler. He testified that, around 2:15 p.m. on November 3, 2015, he was dispatched to the intersection of Winfield Road and Interstate 88. Asked the reason for the dispatch, Feiler answered that "[w]hat started as a simple motorist assist turned into a hit and run investigation," which "later turned into an investigation regarding DUI." Feiler proceeded to a parking lot on Torch Parkway near the intersection of Winfield Road and Interstate 88. Feiler met there with fellow officers and observed a pickup truck and a Jeep parked in the lot. Feiler spoke with defendant, who was in the driver's seat of the Jeep. Feiler observed that defendant had bloodshot, glassy eyes. Feiler also detected the slight odor of an alcoholic beverage on defendant's breath. Defendant seemed confused to Feiler, because of his "hesitation to answer one of [Feiler's] questions," but Feiler did not actually need to repeat those questions. Feiler did not notice any slurring in defendant's speech or anything unusual about his facial expressions. Defendant was wearing what appeared to be safety glasses.

¶ 14 Defendant told Feiler that he had come from Naperville and was on his way back to work. Feiler "asked [defendant] about the crash and how he ended up at Torch Parkway." Defendant replied that, after the accident, he and the other driver agreed to meet at another location to exchange information. Feiler queried defendant about his alcohol consumption, and defendant claimed to have drunk one beer. Feiler also asked defendant how the accident occurred. Defendant claimed that he "attempted to stop * * * at this busy intersection." Feiler observed that the pickup truck had damage to the driver's side, which was consistent with defendant's admission that he had failed to stop. Feiler acknowledged at trial that the intersection where the accident occurred was indeed a very busy intersection.

¶ 15 Feiler testified that he also spoke with defendant "in regards to an accident that had occurred in Naperville that same date." Defendant claimed of this accident, too, that he had "attempted to stop."

¶ 16 Feiler asked defendant to undertake field sobriety tests, and he agreed. Defendant had no difficulty exiting the Jeep, and Feiler noticed nothing unusual about defendant's gait as he walked to the area where he would take the tests. Feiler admitted that, contrary to National Highway Traffic Safety Administration standards, he failed to ask defendant prior to the tests whether he had any injuries or used corrective lenses. The first test that Feiler administered was the horizontal gaze nystagmus (HGN) test. Defendant stood perfectly still during the test and did not sway. During the test, defendant exhibited four out of six indicators that he was under the influence of alcohol. Specifically, defendant exhibited, in both eyes, a "lack of smooth pursuit" and "distinct and sustained nystagmus at maximum deviation." According to Feiler, defendant failed the HGN test.

¶ 17 Next, Feiler instructed defendant how to perform the walk-and-turn test. In taking the test, defendant exhibited seven indicators that he was under the influence of alcohol. For instance, defendant was unable to remain in the start position, he began the test before the instructions were finished, he failed to touch heel to toe, and he stepped off the line. Feiler explained that a subject fails the test when he shows at least two indicators.

¶ 18 Feiler next had defendant perform the one-leg-stand test. As Feiler was explaining how to perform the test, defendant began moving like he was performing the walk-and-turn test again. Feiler corrected defendant, but he eventually terminated the test when it appeared that defendant would not perform the test.

¶ 19 Feiler testified that he also asked defendant to recite the alphabet from J to W without singing it. Defendant performed this test successfully.

¶ 20 Based on defendant's overall performance on the field sobriety tests, Feiler arrested him for driving under the influence of alcohol. Feiler acknowledged that the tests he administered were "mostly tests for alcohol," not drugs. Feiler also recognized that there can be "innocent reasons" why one would fail such...