People v. Borys

• Decision Date: 23 August 2013
• Docket Number: No. 1–11–1629.,1–11–1629.
• Citation: 2013 IL App (1st) 111629,995 N.E.2d 499,374 Ill.Dec. 360
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Cheri BORYS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 111629

995 N.E.2d 499

374 Ill.Dec. 360

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

v.Cheri BORYS, Defendant–Appellant.

No. 1–11–1629.

Appellate Court of Illinois,

First District, Sixth Division.

Aug. 23, 2013.

Michael J. Pelletier, Alan D. Goldberg, Patrick Morales-Doyle, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Amy M. Watroba, Haley Peck, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice LAMPKIN delivered the judgment of the court, with opinion.

[374 Ill.Dec. 363]¶ 1 After a bench trial, defendant Cheri Borys was convicted of aggravated driving under the influence (DUI) for driving under the influence of alcohol while her driver's license was revoked due to a previous DUI violation. She was sentenced to an 18–month prison term. On appeal, she contends that: (1) the trial court erred by permitting the arresting officer to testify about events during the traffic stop because his patrol vehicle was not equipped to make an audio/video recording as mandated by statute; (2) the trial court erred by admitting the officer's testimony concerning the horizontal gaze nystagmus (HGN) test because he did not conduct the test in accordance with established guidelines; and (3) the DNA identification system fee cannot be assessed against defendant because her DNA has already been collected and placed in the Illinois database.

¶ 2 We hold that: (1) although the arresting officer's vehicle failed to have recording equipment as required by statute, the admission of his testimony concerning the traffic stop was not plain error and did not constitute grounds for reversal based on ineffective assistance of counsel; (2) the trial court's error in admitting the officer's testimony concerning the HGN test without a proper foundation was harmless; and (3) the statutory fee for DNA analysis and storage should be vacated. Accordingly, we affirm defendant's conviction and sentence but vacate the imposition of the DNA fee.

¶ 3 I. BACKGROUND

¶ 4 On September 16, 2009, Illinois State Trooper Christopher Price arrested defendant for DUI. Defendant was also ticketed for driving while her license was revoked, speeding and improper lane usage. At the time of defendant's arrest, Trooper Price's patrol vehicle was not equipped with video or audio recording equipment. Defendant was charged with aggravated DUI for driving under the influence of alcohol while her license was revoked due to a previous DUI. The State nol-prossed the misdemeanorDUI and improper lane usage charges.

¶ 5 At the bench trial, Trooper Price testified that he had four years of experience as an Illinois State Police officer and received about 40 hours of training on the detection of impaired drivers at the police academy in August 2006. As part of his training, he was taught how to administer various field sobriety tests, including the HGN test, the walk-and-turn test, and the one-leg-stand test. He passed both a written and practical examination on those tests and also received supplemental training in August of 2008.

¶ 6 On the date in question, he was assigned a vehicle that was not equipped with a video camera, and that fact had “been documented.” While he was parked on the side of Interstate–294, he tracked the speed of passing motorists with his properly calibrated LIDAR equipment. He was located in a construction zone that was marked by cones and barrels and had a posted speed limit of 45 miles per hour. At 2:47 a.m., he observed defendant drive her vehicle in the construction zone and measured the speed of her vehicle three times. According to his equipment, defendant was traveling at speeds of 99 miles per hour, 103 miles per hour, and 105 miles per hour. He followed defendant's vehicle and saw it drift from the far right lane onto the right shoulder and then back into the far right lane. He activated his emergency lights and curbed defendant's vehicle.

¶ 7 He approached defendant's vehicle and had a conversation with her while her window was rolled down. She stated that she could not have been driving as fast as the speeds measured by Price and claimed that other vehicles that had been near her were speeding. Price, however, testified that no vehicles were near defendant when he measured her speed. He asked her for her license, and she stated that she did not have it because it was revoked for a prior DUI. He observed that her eyes were glassy and bloodshot, and a strong odor of alcohol emanated from her breath. Defendant stated that she had four bottles of beer right before she started driving. When defendant walked toward the front of her vehicle to perform the field sobriety tests, she swayed and stumbled, and Price had to assist her to keep her from falling.

¶ 8 First, Price conducted the HGN test to detect unsteadiness of the eyes, which was an indication of possible alcohol consumption. Over the defense's foundation objection, Price testified that he first determined that defendant had equal tracking with both her eyes by holding his finger about four inches from her eyes, asking her to follow his finger with her gaze only, and sweeping his finger back and forth, left to right, several times. Then, Price looked for distinct and sustained nystagmus in either eye by passing his finger in front of defendant's face to the left and right for a count of two seconds each. When defendant's eyes gazed all the way to either the left or right, i.e., maximum deviation, he saw the jerkiness indicative of distinct and sustained nystagmus in both eyes. Moreover, the nystagmus or jerkiness began before his finger reached a 45–degree angle. Based on defendant's performance on the HGN test, Price believed that she may have been under the influence of alcohol.

¶ 9 Next, Price conducted the walk-and-turn test, which defendant chose to do barefoot. He told defendant to stand with her arms down to her side and her feet touching heel-to-toe while he gave her instructions. He instructed her to take nine steps on an imaginary line, counting out loud and touching heel-to-toe for each step; take three small steps to turn around; return taking nine heel-to-toe steps and counting aloud; and then stop and turn around. While Price was giving those instructions, defendant was unable to maintain her balance and placed her right foot parallel to her left foot. Moreover, she started the test before instructed to do so and before Price had concluded his instructions. In addition, she failed to walk heel-to-toe and, instead, walked with about six inches between each step she took.

¶ 10 Price did not conduct the one-leg-stand test because defendant said that she had a knee injury, i.e., “housewife knee syndrome.” Price took defendant into custody, went to the police station, waited more than the required 20 minutes for any mouth alcohol to dissolve, and then read defendant the warning about possible consequences for refusing to take the Breathalyzer test. Defendant refused to take that test. After she was Mirandized, defendant agreed to speak to Price. She was asked basic questions but did not know the date or the time. When Price asked what she had been doing for the last three hours, she said she had argued with her boyfriend, went to the bar and drove home. Based on his training and experience, defendant's speeding, improper lane driving and admission to consuming alcohol just prior to driving, and her performance on the field sobriety tests, Price believed that she was definitely driving under the influence of alcohol, the effect of alcohol on her that morning was extreme, and she was unfit to drive an automobile.

¶ 11 The State submitted a certified copy of defendant's driver's abstract, which indicted that her driving privileges were revoked on September 16, 2009.

¶ 12 Dr. Reynaldo Paras was qualified as an expert in the field of medicine and testified that defendant was his patient. When he examined her in 2008 and 2010, she had degenerative osteoarthritis in her knees and crepitation. Dr. Paras was not familiar with field sobriety tests, but opined that defendant's knee condition would affect her performance on the one-leg-stand test and would possibly affect her performance on the walk-and-turn test. However, defendant's arthritis was not very severe, and her condition did not prevent her from walking or standing up straight and would not cause her to sway.

¶ 13 The trial court found defendant guilty of all charges and denied her motion for a new trial. She was sentenced to 18 months' imprisonment.

¶ 14 II. ANALYSIS

¶ 15 A. Unrecorded Traffic Stop

¶ 16 Defendant argues that Trooper Price's testimony was inadmissible because his patrol vehicle, on September 16, 2009, was not equipped with a video recording camera as required by section 30(b) of the State Police Act (Act) ( 20 ILCS 2610/30(b) (West 2008)). Specifically, section 30(b) required the Department of State Police to install, by June 1, 2009, in-car video camera recording equipment in all patrol vehicles. The Act provided that “[a]ny enforcement stop resulting from a suspected violation of the Illinois Vehicle Code shall be video and audio recorded.” 20 ILCS 2610/30(e) (West 2008). The Department of State Police is required to retain the recordings for a storage period of at least 90 days. 20 ILCS 2610/30(f) (West 2008). The officer operating the patrol vehicle is required to report any technical difficulties, failures, or problems with the recording equipment to his commander, who must make every reasonable effort to correct and repair the equipment and “determine if it is in the public interest to permit the use of the patrol vehicle.” 20 ILCS 2610/30(h) (West 2008).

[374 Ill.Dec. 366][1] ¶ 17 Notably, defendant does not argue that Price's testimony should have been inadmissible as a sanction for a discovery violation. A discovery violation may be analyzed as either a...