This article will examine People v. Manders1 , People v. Rockey2 , and People v. Boomer3 , a trilogy of recent Second District opinions that may just provide that little "something else" for your next DUI case (be it from a defense or prosecution standpoint).
The vast majority of DUI cases begin with a routine traffic stop and in many cases the violation is some form of improper lane usage. In People v. Manders, the defendant’s vehicle was stopped primarily for "weaving" back and forth within its own lane, as well as coming within three inches of the centerline and the fog line on either side of the vehicle. A petition to rescind the defendant’s summary suspension and a motion to quash arrest and suppress evidence were filed and heard simultaneously. The trial court granted both, finding there was no probable cause to stop defendant’s vehicle, and the State appealed.
The Manders court began its analysis by noting that it is virtually impossible to drive a vehicle in a perfectly straight line4 . They found support for this proposition in Section 11-709 of the Illinois Vehicle Code5 , which states that a vehicle shall be driven as nearly as practicable within a single lane. (Emphasis original). In addition, the court noted that Webster’s Dictionary6 defines "weaving" as "the action of a vehicle that alternately diverges from and merges into traffic flows moving in the same direction, shifting from one lane to another, and repeatedly crossing the path of other vehicles.7 Since defendant’s vehicle never crossed a lane line on either side of the vehicle, the driving did not constitute "weaving" and therefore could not be the basis for a valid investigatory stop.8 The trial court rulings rescinding the summary suspension and granting the motion to suppress evidence were upheld.9
Practitioners should note that Manders only addressed weaving entirely within lane dividers. The issue of whether driving upon some portion of a lane divider but not actually crossing over it would constitute the basis for a valid stop was not before the Manders court, and does not appear to have been directly addressed in Illinois. However, an Ohio appellate court was faced with this issue in City of Mentor v. Phillips10 where the defendant was stopped after the left tires of his truck twice drove on a broken line for a short distance and then "jerked" back into its own lane. Defendant was subsequently arrested for DUI and filed a motion to suppress evidence, which the trial court denied. The Phillips court reviewed the Ohio lane usage statute (which appears to be virtually identical to section 11-709 of the Illinois Vehicle Code) and ruled that the momentary touching of a lane divider did not violate the Ohio statute and thus did not itself provide a valid basis for the traffic stop.11 The court went on to determine that the defendant’s overall driving was not sufficiently erratic to justify the stop and reversed the trial court.12
Another issue frequently encountered by DUI practitioners (defense and prosecution) is when a routine traffic stop or police encounter becomes an unlawful detention or seizure. In People v. Rockey,13 defendant’s vehicle was observed parked in an alley with its lights on between 12 and 1 a.m. in Cedarville, Illinois. The arresting officer found this suspicious because defendant was parked near an auto dealership that had been burglarized in the past and because there had been several business burglaries in Stephenson County within the past 10 days. The officer, who was driving an unmarked squad, returned to investigate and discovered defendant had pulled out of the alley and was now driving. Officer Wilson followed the defendant around the block until she turned into a driveway of what turned out to be her ex-boyfriend’s house. The officer stopped her squad on the street just short of the driveway and defendant then exited her vehicle and approached Officer Wilson who noted a slight stagger and a strong odor of an alcoholic beverage. The officer also "felt" defendant was " trying to avoid having a vehicle behind" her even though defendant voluntarily stopped and exited her vehicle.
Based on her observations, the officer testified she had "probable cause to believe defendant might possibly be under the influence of alcohol," and asked defendant for her license. Upon further examination, the officer acknowledged she did not have probable cause to believe defendant had committed a crime at that time. Officer Wilson then detained the defendant while she called for back up and ran a background check. When asked to explain the detention, Officer Wilson again stated defendant had not done anything wrong, but she remembered defendant’s license had been suspended in the past. Therefore, the officer wanted to run her license and "see if defendant was okay to drive." Defendant was subsequently arrested for DUI. Her petition to rescind summary suspension and motion to suppress evidence were granted by the trial court and the State appealed.
The Rockey court first noted that the initial encounter was not a stop or seizure for fourth amendment purposes because defendant’s conduct appeared voluntary and there was no show of authority by Officer Wilson.14 However, a stop or seizure did occur when defendant was detained while the officer retained her license and ran her background.15 The question then became whether the stop was justified under Terry v. Ohio:16
"A person cannot lawfully be seized unless there are reasonable, objective grounds for doing so, and, to sustain a Terry stop, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.17
Applying the Terry analysis, the Rockey court concluded Officer Wilson’s testimony did not support probable cause to believe defendant had committed an offense.18 She acknowledged on cross that the local burglaries were not recent and the recent burglaries were not local. There were burglaries in the county (in the previous ten days) but none in Cedarville. She did not make any observations consistent with defendant having broken into any cars. She believed that defendant acted "evasively" in driving around the block and exited her car voluntarily.19 The court went on to observe:
"although the officer stated defendant was "possibly" under the influence of alcohol, her reasons for the detention focused on the officer’s ultimately incorrect suspicion or hunch that defendant was driving with a suspended license-a suspicion that had no reasonable, factual basis at the time of the stop and is, without more, insufficient to support a lawful Terry stop. To conclude otherwise would be to approve of the detention of any driver at any time to run a license check if the officer thought the driver had committed an offense on a prior occasion. The constitutional test of reasonable and particularized suspicion does not support such a proposition."20
The third case in our Second District trilogy involves another common scenario confronting the DUI practitioner, i.e., the accident with injuries to the driver, which prevent field sobriety testing. In People v. Boomer,21 the defendant apparently lost control of his motorcycle and was subsequently found in a ditch about 15 feet from his motorcycle. He was severely injured and unable to speak. The arresting officer noted a strong odor of alcohol emanating from the defendant. The only other indication of intoxication noted by the officer was the defendant’s nodding affirmatively in response to being asked if he had been drinking. The defendant was then arrested for DUI and improper lane usage. His subsequent motion to quash the arrest and suppress evidence was granted by the trial court, which found there was no probable cause for the defendant’s arrest for DUI and improper lane usage. The State appealed, but only as to the issue of probable cause for the DUI arrest.
The Boomer court distinguished this case from the two lines of cases cited by the State in its appeal. First, the court discussed People v. Brodeur22 and People v. Wingren23 . Brodeur involved a defendant in a rear-end collision with a tow truck, and Wingren involved a defendant who mistook a driveway for a roadway and drove her car into the backyard of a residence. In both of these cases there was an odor of alcohol on the defendant’s breath and probable cause was not found. These cases were distinguished because additional indicia of intoxication (slurred speech and red and bloodshot eyes or red and glassy eyes) were found but were not present in Boomer. The Boomer court also distinguished People v. Ruppel24 where, in addition to an odor of alcohol and slurred or altered speech, guilty knowledge could be inferred due to the defendant’s attempt to conceal the odor with a mint. In contrast to Brodeur, Wingren and Ruppel, nothing about Boomer’s demeanor, appearance, or behavior was found to suggest intoxication.25
Secondly, the Boomer court discussed People v. Preston26 and People v. Goodman,27 both of which involved accidents. Preston involved a truck crossing the centerline and colliding with oncoming traffic, and Goodman involved a hit and run offense. The Boomer court also distinguished these cases, noting that its case involved a motorcycle and no evidence of erratic driving.28 The Boomer court noted that a motorcycle is by its very nature more vulnerable to road hazards than vehicles with four wheels. The court also noted that "the trial court found that the circumstances of the accident did not indicate the involvement of alcohol", and that as an indicator of intoxication, the accident of its defendant was not comparable to those in Preston and Goodman.29
Boomer also involved an interesting secondary issue. At the hospital, the arresting officer requested medical personnel draw the defendant’s blood after he became unresponsive. The state on appeal argued that the arresting officer had the authority to request the blood draw pursuant to section 11-501.6, which provides in pertinent part as follows:
(a) Any person who drives or is in control of a motor vehicle upon the public highways of this State and who has been involved in a personal injury or fatal motor vehicle accident, shall be deemed to have given consent to *** a chemical test or tests for blood*** for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compounds of such person’s blood if arrested as evidenced by the issuance of a Uniform Traffic Ticket for any (nonequipment) violation of the Illinois Vehicle Code.
(b) Any person who is dead or unconscious or who is otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this Section. In addition, if a driver of a vehicle is receiving medical treatment as a result of a motor vehicle accident, any physician licensed to practice medicine, registered nurse or phlebotomist acting under the direction of a licensed physician shall withdraw blood for testing purposes.30
The Boomer court found section 11-501.6 did not apply since it upheld the trial court’s finding of no probable cause for the DUI arrest, and the finding of no probable cause for the improper lane usage was not challenged on appeal. Therefore, defendant was not under arrest for any nonequipment violation of the Illinois Vehicle Code at the time the officer requested the blood draw.31
This trilogy of Second District cases illustrates variations of common situations faced by the DUI practitioner. As you can see by the foregoing, you need to carefully examine the facts you are presented with in trying to apply any of these three cases.
1 People v. Manders, 317 Ill.App. 3d, 337, 740 N.E. 2d 64, (2nd Dist. 2000).
2 People v. Rockey, 322 Ill. App. 3d 832, 752 N.E. 2d 576, (2nd Dist. 2001).
3 People v. Boomer, 2001 Ill.App. Lexis 769, (2nd Dist. 2001).
4 317 Ill. App. 3d at 341, 740 N.E. 2d at 67.
5 625 ILCS 5/11-709(a).
6 Webster’s Third New International Dictionary (1986).
7 317 Ill. App. 3d at 341, 740 N.E. 2d at 67.
10 99-L-119, 11th Dist. Court of Appeals, Lake County, Ohio.
13 322 Ill. App. 3d 832, 752 N.E. 2d 576, (2nd Dist. 2001).
14 322 Ill. App. 3d at 837, 752 N.E. 2d at 581.
15 322 Ill. App. 3d at 838, 752 N.E. 2d at 582. See, also, People v. Brownlee, 186 Ill. 2d 501, (1999), (Fourth Amendment applies even to seizures that involve only a brief detention short of arrest.)
16 392 U.S. 1, (1968).
17 Rockey, 322 Ill. App. 3d at 838, 752 N.E. 2d at 582, citing People v. McVey, 185 Ill. App. 3d 536, 541 N.E. 2d 835, (1989). (Seizure occurred when officer required defendant to return to his car while officer ran computer check).
18 322 Ill. App. 3d at 838, 752 N.E. 2d at 582.
19 322 Ill. App. 3d at 837-38, 752 N.E. 2d at 581-82.
20 322 Ill. App. 3d at 840, 752 N.E. 2d at 584.
21 2001 Ill. App. LEXIS 769
22 189 Ill. App. 3d 936, 545 N.E. 2d 1053. (1989).
23 167 Ill. App. 3d 313, 521 N.E. 2d 130, (1988).
24 303 Ill. App. 3d 885, 708 N.E. 2d 824, (1990).
25 2001 Ill. App. LEXIS 769.
26 205 Ill. App. 3d 35, 563 N.E. 2d 80, (1990).
27 173 Ill. App. 3d 559, 527 N.E. 2d 1055, (1988).
28 2001 Ill. App. LEXIS 769.
30 625 ILCS 5/11-501.6.
31 2001 Ill. App. LEXIS 769.
Honorable Cary Pierce serves as the chairperson of the DuPage County Bar Association’s criminal law committee for the 2001-2002 term. Judge Pierce received his under-graduate degree from Western Illinois University and his J.D. from Northern Illinois University. Judge Pierces’ current judicial assignment in DuPage County is with the law division. Judge Pierce wishes to specially thank Steve Armamentos and Chris Klis for their efforts in this article.
Steven D. Armamentos is a partner in the Wheaton firm of Ramsell & Armamentos. He con-centrates his practice in the areas of DUI, criminal defense and drivers license reinstatement hearings. Mr. Armamentos received his B.A. from Northern Illinois University in 1980 and his J.D. from DePaul College of Law in 1984.
Christopher B. Klis is an associate of the Wheaton firm of Ramsell & Armamentos. He con-centrates his practice in the areas of DUI, criminal defense and personal injury. Mr. Klis received his B.A. from the University of Illinois at Urbana/Champaign in 1990 and his J.D. from the University of Illinois College of Law in 1993.