People v. Arredondo

• Decision Date: 08 October 2009
• Docket Number: No. 1-07-2825.,1-07-2825.
• Citation: 334 Ill.Dec. 375,916 N.E.2d 1263
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Natividad ARREDONDO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

916 N.E.2d 1263

334 Ill.Dec. 375

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Natividad ARREDONDO, Defendant-Appellant.

No. 1-07-2825.

Appellate Court of Illinois, First District, Fourth Division.

October 8, 2009.

Jean Park (of Counsel), Office of State Appellate Defender, Chicago, IL, for Defendant-Appellant.

James E. Fitzgerald, Mary P. Needham, Mikah Soliunas (of Counsel), State's Attorney of Cook County, Chicago, IL, for Plaintiff-Appellee.

Justice O'BRIEN delivered the opinion of the court:

Defendant, Natividad Arredondo, appeals his convictions on two counts of aggravated driving under the influence of alcohol and his sentence of two concurrent terms of two years in prison. Defendant contends the circuit court violated Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) by failing to ask the potential jurors during voir dire whether they understood and accepted the principles set forth in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984). We reverse and remand for a new trial.

We adopt the State's statement of facts verbatim:

"Officer Yasir Ramos, a five-year veteran of the Chicago Police Department currently assigned to the 9th District, was on patrol with his partner, Officer Michael Tomaso, on June 3, 2006. On that day, Officer Ramos was working beat 924, in uniform, driving in a patrol vehicle. Sometime after 8 p.m., he and his partner were called to the location of 3108 South Aberdeen, regarding a disturbance call involving teenagers.

As Officers Ramos and Tomaso arrived at the location, they did not see a disturbance. Instead, Officer Ramos observed a two-door, dark colored Ford make a right-hand turn from 31st Street and park on Aberdeen. Officer Ramos and his partner approached the location of the disturbance call and saw a man standing on [the] street flagging them down. They stopped their patrol car and exited the vehicle to speak to him. While Officer Ramos and his partner were approaching the man on the street, Officer Ramos noticed a man sitting in the Ford on the west side of the street. Officer Ramos noticed that the car was running, in a parked position, and there was no one else in the car.

While he was speaking to the man on the street, Officer Ramos kept his eye on the man in the parked car. Officer Ramos observed that the man was having a difficult time stepping out of the vehicle, and thought the man may have been sick. Officer Ramos then approached the man, whom he identified in court as defendant. Defendant was behind the driver's wheel of the vehicle. Officer Ramos asked defendant if he was okay, and when defendant did not respond, the officer spoke to defendant in Spanish.

Initially, as he approached defendant's vehicle, Officer Ramos observed an open can of Budweiser in the center console. As he drew even closer, the officer observed a strong odor of alcohol coming from defendant's breath, and noticed that his eyes were bloodshot and glassy. Officer Ramos noticed that defendant was speaking in a slurred manner and behaving in a `sluggish manner.' Officer Ramos then asked defendant if he had a driver's license and insurance; defendant was unable to produce either. Officer Ramos later learned that defendant's driving privileges were revoked, and defendant did not have a valid driver's license. Officer Ramos asked defendant if he needed medical attention, had any physical disabilities, or if he was taking any medication; defendant indicated he did not and was not. Officer Ramos asked defendant to step out of his vehicle to perform field sobriety tests. At that point, Officer Ramos believed defendant was possibly under the influence of alcohol; defendant needed to use his vehicle to steady himself as he stepped out of his car.

Officer Ramos directed defendant to the sidewalk area next to the street to administer the tests. Officer Ramos first administered the horizontal gaze nystagmus (hereinafter `HGN') test. Officer Ramos explained and demonstrated this test to defendant. Defendant indicated that he understood the instructions, and although he completed the test properly, he showed signs of impairment. Defendant exhibited all six signs of impairment according to the HGN test including: lack of smooth pursuit; `onset prior to 45 degrees' in both eyes, also known as `onset of DEH prior to 45 degrees,' which [meant] that at a 45 degree angle defendant's eyes began flickering rapidly; and that defendant had `a distinct nystagmus at maximum deviation' in both eyes.

Officer Ramos also explained the finger-to-nose [test], the walk-and-turn test, and the one-legged stand test to defendant. Defendant * * * was unable to perform those tests due to his condition. During the attempted administration of the field sobriety tests, defendant had to constantly hold a fixed object, and had a difficult time balancing himself. Because defendant did not perform or complete the finger-to-nose, walk-and-turn, and one-legged stand tests, he was deemed to have failed. Officer Ramos then read defendant his Miranda warnings in Spanish, from a pre-printed card. Defendant appeared to understand these warnings, and Officer Ramos and his partner escorted defendant to the patrol car to make sure he did not fall.

While they were transporting defendant to the 9th District station, the officers noticed a distinct odor of alcohol in the squad car. Defendant was `having a rough time walking into the police station,' and was unable to stand without assistance.

Chicago Police Officer Len Nakoff was certified as a breathalyzer technician on the evening of the incident. Officer Nakoff stated that the 9th District station uses an Intox EC/IR machine, serial number 4078, to administer its breathalyzer tests. Officer Nakoff was * * * licensed on that machine and had performed a few hundred tests on it. Officer Nakoff knew that the machine was regularly tested for accuracy, and that the tests were recorded in the Chicago Police Department logbook kept near the machine. The information in the logbook included: the date of test administration, the defendant's name, the results of the tests, the officer's name administering the test, the arresting officers' names, and a court date. Only police officers have access to the log book, and the station is required by law to keep the logbook.

At trial, Officer Nakoff was shown a portion of the logbook which contained defendant's test results; the log was entered into evidence without objection. Officer Nakoff explained that the machine was tested on May 22, 2006, by Sergeant Boone of the Illinois State Police. On that day, the machine was certified accurate, and the next certification of the machine was performed on July 30, 2006. On that day, the machine was also certified as accurate by Sergeant Boone of the Illinois State Police.

Officer Nakoff explained that after the relevant information was entered into the machine, it performed a self-check. The information manually entered into the machine included: defendant's name, date of birth, driver's license number if they had one, the issuing state of the license, the administering officer's name, star number, the arresting officer's name, star number, and county of arrest. Officer Ramos was present during the administration of defendant's breath test so that he could translate Officer Nakoff's instructions to defendant into Spanish. On defendant's third attempt, he was able to successfully perform the test, and a ticket was issued registering defendant's [blood alcohol content] as .223; the legal limit in the State of Illinois is .08.

Defendant's certified driving abstract was admitted; it indicated that defendant's driving privileges were revoked on June 3, 2006. People's exhibits # 1 through 10 were admitted into evidence without objection. The defense moved for [a] directed verdict, which the trial court subsequently denied. The People rested.

The defense then called Miguel Villalobos, a friend of the defendant. Miguel testified that he and defendant attended a party at defendant's brother's home located at 3114 South Aberdeen on the evening of the incident. According to Miguel, although defendant appeared to be drunk at the party he was not drinking. At some point during the evening, defendant and Miguel borrowed Miguel's sister-in-law's car and left the party to drive to Jewel to get some beer and hot dogs. Miguel testified that he drove, and that when they returned from Jewel, defendant was sitting on the passenger's side of the vehicle.

According to Miguel, when he and defendant were returning from Jewel, there were `gang bangers' standing in the street throwing eggs at cars. Miguel and defendant's brother took the groceries inside the house while defendant remained outside, arguing with the gang bangers. Miguel testified that the next time [he] came outside, approximately 10 to 20 minutes later, both the gang bangers and defendant were gone.

The defense then called Mario Arredondo, defendant's brother. Mario testified that [he] had lived at 3114 South Aberdeen for approximately 10 years. According to Mario, defendant was not drunk that evening, `he was happy'; he had never seen defendant completely drunk before. [However], Mario also testified that defendant never drove the car to Jewel because defendant was `drunk.' Additionally, Mario said that as they began driving, there were gang bangers lurking about, who began throwing eggs and rocks at the car. Mario testified that defendant argued with those gang bangers and when the police arrived, they arrested defendant instead of the gang bangers.

The defense also called Father Peter Funk. Father Funk resided at a monastery located at 3111 South Aberdeen for approximately 10 years. At about 8:15 p.m. on June 3, 2006, Father Funk heard a disturbance outside of the church. He went up to the church tower to watch, and observed a group of 10 to 12 children on bicycles blocking...