People v. Sokolowski

2021 IL App (4th) 190074-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER SOKOLOWSKI, Defendant-Appellant.

NO. 4-19-0074

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

March 25, 2021

NOTICE

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Livingston County

No. 17DT15

Honorable Mark A. Fellheimer, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.

Presiding Justice Knecht and Justice Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding (1) the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of driving under the influence; (2) the trial court's denial of defendant's motion in limine to bar the preliminary breath test results was not against the manifest weight of the evidence; and (3) defendant failed to make a substantial showing he was denied the effective assistance of counsel.

¶ 2 In February 2017, after demonstrating visible signs of intoxication and showing indicators of impairment on standard field sobriety tests, defendant, Walter Sokolowski, submitted to a preliminary breath test (PBT), which indicated he had a blood-alcohol content (BAC) of 0.087. Defendant was subsequently charged by traffic citation and complaint with driving under the influence of alcohol (DUI) (count I) (625 ILCS 5/11-501(a)(2) (West 2016)) and driving with a BAC of 0.08 or more (count II) (625 ILCS 5/11-501(a)(1) (West 2016)).

¶ 3 In October 2017, defendant filed a motion in limine to bar the PBT results, arguing the test results were unreliable. In December 2017, the trial court denied defendant's motion.

¶ 4 In March 2018, following a stipulated bench trial, the trial court found defendant guilty of both counts and sentenced him to 24 months' supervision.

¶ 5 Defendant appeals, arguing (1) the evidence was insufficient to prove him guilty of DUI beyond a reasonable doubt; (2) the trial court erred in refusing to suppress the PBT results; and (3) he was denied the effective assistance of his trial counsel. We affirm.

¶ 6 I. BACKGROUND

¶ 7 A. The State's Charges

¶ 8 In February 2017, defendant was charged by traffic citation and complaint with DUI (625 ILCS 5/11-501(a)(2) (West 2016)) and driving with a BAC of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2016)), after exhibiting signs of alcohol impairment, failing multiple field sobriety tests, and submitting to a PBT which indicated he had a BAC of 0.087.

¶ 9 B. Defendant's Pretrial Motions

¶ 10 On February 16, 2017, defendant filed a request for a hearing and petition to rescind the statutory summary suspension. The petition alleged, in part, the arresting officer had no reasonable grounds to believe defendant was under the influence of alcohol, drugs, or any combination thereof. Defendant also asserted the results of his breath-alcohol test were unreliable and "that such requested tests to which [defendant] submitted were administered improperly."

¶ 11 In October 2017, defendant filed a motion in limine to bar the PBT results, alleging the arresting officer failed to administer the test in accordance with approved proceduresby "failing to make any check of the mouth of the defendant." The motion alleged the results of the PBT were unreliable as "defendant had gauze packing in his mouth to absorb and attempt to stem blood flow from the socket affected by a tooth extraction performed several hours prior" and defendant had been rinsing his mouth periodically with Listerine-brand mouthwash to prevent infection.

¶ 12 C. Evidentiary Hearings

¶ 13 In March 2017, October 2017, November 2017, and December 2017, the trial court conducted hearings on defendant's petition to rescind the statutory suspension and motion in limine. Defendant called multiple witnesses who testified as to the facts and circumstances surrounding the events. The State did not present any evidence. The evidence relevant to the issues on appeal follows.

¶ 14 1. Trooper Caleb Jefferson

¶ 15 At approximately 12:50 a.m. on February 7, 2017, Trooper Caleb Jefferson of the Illinois State Police testified he received a radio dispatch concerning a vehicle that had "crashed into the cable barriers along the southbound side" of the interstate. Jefferson described the road conditions as rainy and foggy but the temperature was above freezing. Upon arriving at the accident scene, Jefferson met with defendant "in the grassy area by the Corvette." Jefferson observed "two beer cans" outside of the car and a bottle cap in the vehicle's center console labelled "MGD." Defendant told Jefferson his vehicle left the roadway after he was unable to see due to the fog. While speaking with defendant, Jefferson smelled "a moderate odor of alcoholic beverage coming from his breath," and observed "[h]e had bloodshot, glassy eyes." When Jefferson asked defendant if he had been drinking, defendant answered that he had one beer six hours prior.

¶ 16 Trooper Jefferson then administered a series of field sobriety tests on defendant. Jefferson first administered the horizontal gaze nystagmus (HGN) test, checking for involuntary jerking in the movement of defendant's eyes. Upon administering the HGN test, Jefferson noticed a lack of smooth pursuit in both of defendant's eyes. Jefferson also determined that defendant had distinct and sustained jerking of his eyes at maximum deviation and "prior to 45 degrees."

¶ 17 Jefferson next asked defendant to perform the walk-and-turn test. Defendant did not follow Jefferson's directions as instructed. While administering the walk-and-turn test, Jefferson testified he was looking to see whether defendant could keep his balance during the instruction phase, started too soon, stepped off the line, missed heel-to-toe, stopped walking, used his arms for balance, and made an improper turn. When performing the walk-and-turn test, defendant exhibited five "clues" that would indicate intoxication.

¶ 18 The final test was the one-leg stand. Jefferson explained that, when administering the one-leg stand test, an officer is looking to see "[w]hether the subject puts his foot down, uses his arms for balance, hops to keep his balance, or *** raises his arms more than six inches for balance." While performing the one-leg stand, Jefferson testified that defendant exhibited three of the four specific "clues" which would indicate intoxication.

¶ 19 Jefferson testified he was certified by the Illinois State Police to administer breath-alcohol tests using an RBT-IV test machine. Following the field sobriety testing, Jefferson asked defendant if he would be willing to submit to a PBT, which defendant initially refused. Jefferson subsequently placed defendant under arrest based on his opinion that defendant was under the influence of alcohol and seated defendant in the passenger seat of his patrol car. Jefferson read the "warning to motorist" aloud to defendant and waited 20 minutes. Jeffersonagain asked defendant if he would submit to a PBT. Defendant responded in the affirmative. Jefferson did not inspect defendant's mouth prior to administering the PBT, however he did not observe defendant eat, drink, belch, or vomit during the 20-minute observation period. Defendant completed the PBT, which showed that his BAC was 0.087.

¶ 20 Defense counsel offered into evidence audio and video footage of the events taken from Trooper Jefferson's squad car dash camera, which the trial court later reviewed. The video footage is consistent with Jefferson's testimony.

¶ 21 2. Ronald Henson

¶ 22 Defendant called Ronald Henson as an expert witness in blood-alcohol testing. Regarding Henson's "background and experiences," both parties stipulated to portions of Henson's testimony at a separate hearing, wherein Henson testified he lectured on the subject multiple times each year. Henson had been a licensed breath-alcohol test operator since 1981. In 1986, Henson became an instructor at the University of Illinois Police Training Institute and was eventually "put in charge of the breath, blood and urine testing program, standardized field sobriety testing, and also drugs and narcotics training." In addition to receiving a master's degree in public administration, Henson received his Ph.D. in "Management Decision Sciences with Drug and Alcohol testing in the workplace."

¶ 23 Henson testified he was familiar with RBT-IV breath test machines and the factors which may affect the accuracy of the test results. Henson explained an RBT-IV machine "has absolutely zero capability to detect mouth alcohol," and defined mouth alcohol as "anything that develops or originates from the mouth versus originating either from the stomach or the gut or esophagus, or the deep lung region trying to get into the alveolar region."

¶ 24 Regarding the administration of defendant's breath test, Henson testified that Jefferson had done two things wrong. Specifically, Jefferson failed to inspect defendant's mouth prior to and after the 20-minute observation period. Defense counsel then posed the following hypothetical to Henson, asking what impact it would have on a PBT result if defendant had (1) gauze packing the site of a tooth extraction, (2) continued bleeding onto "two, perhaps three of these gauze pieces" at the time of the breath test, and (3) rinsed with Listerine periodically throughout the late afternoon and into the evening. Based on defense counsel's hypothetical, Henson opined the PBT results would not be reliable. Henson explained that, generally, waiting 20 minutes after rinsing with Listerine "will get the sample result that you would expect." However, "if you have got something in the mouth such as gauze, *** that is an absorbent material, *** 20 minutes is not enough. It is going to retain. And then it has also been exacerbated by any active bleeding that may or may not have been there as well." To get an accurate result, Henson explained that the gauze would need to be...