People v. Lindmark
| Decision Date | 03 April 2008 |
| Docket Number | No. 4-07-0535.,4-07-0535. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Erika M. LINDMARK, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
In January 2007, a jury found defendant, Erika M. Lindmark, guilty of driving under the influence of alcohol (DUI) while her driver's license was suspended (625 ILCS 5/11-501(a)(1) (West 2006)) (count I) and driving with a suspended license (DWS) (625 ILCS 5/6-303(a) (West 2006)) (count II). The trial court later vacated count II. In March 2007, the court sentenced defendant to 180 days in the Champaign County jail plus 30 months' probation on count I. Defendant appeals.
Although defendant raises several substantive arguments on appeal, the inadequate record provided severely hampers this court's review. For the reasons that follow, we affirm.
On March 1, 2006, defendant was arrested for DUI and DWS. Following her arrest, defendant performed a breath test showing she had a breath-alcohol concentration (BAC) of 0.167.
On March 22, 2006, the State charged defendant with driving while her BAC was equal to or greater than 0.08 and while her license to drive was suspended due to her prior violation of section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501(a)(1) (West 2006)). See 625 ILCS 5/11-501(c-1)(1) (West 2006) (). On January 5, 2007, the State charged defendant with count II, DWS (625 ILCS 5/6-303(a) (West 2006)).
Defendant filed numerous pretrial motions. On January 17, 2007, the trial court held a hearing on the pending motions. Only a partial transcript of the January 17, 2007, hearing is contained in the record on appeal. An examination of the pretrial motions relevant to this appeal follows.
In December 2006, defendant filed a motion to suppress the breath test. The motion alleged that the protocol for the operation of a breath test requires the operator observe the subject for a 20-minute period to ensure the subject does not regurgitate, burp, belch, or otherwise bring contents from the stomach or esophagus into the mouth because that will produce an inaccurate reading. Defendant claimed the results of her breath test were invalid because the operator did not properly observe defendant to ensure she did not bring stomach contents up into her mouth.
At the January 17, 2007, hearing, defendant testified that she suffered from acid reflux. Defendant claimed she burped during the observation period. On cross-examination, defendant admitted the officer asked her if she had any illness prior to the breath test, and she did not tell him she had acid reflux. Defendant testified she did tell the officer she was "sick earlier that day."
The trial court viewed the videotape showing the observation of defendant. The videotape, which was admitted into evidence, is not contained in the record on appeal. The court concluded the observation by the officer complied with statutory and case-law requirements. The court noted that defendant yawned, but the court saw nothing that implicated the guidelines with respect to the breath test. The court denied the motion to suppress the breath test.
In December 2006, defendant filed a motion requesting the trial court suppress all statements made by defendant during her custodial interrogation. In the motion, defendant alleged that the officer failed to make an adequate determination that defendant understood her Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) and failed to obtain a knowing and voluntary waiver of those rights.
At the January 17, 2007, hearing on the pretrial motions, patrol sergeant Adam Chacon testified that on March 1, 2006, he stopped defendant's vehicle. After a DUI investigation, he placed defendant under arrest for DUI and transported her to the satellite jail in Champaign County.
After defendant performed the breath test, Sergeant Chacon used his Miranda card and read defendant the Miranda warnings. Sergeant Chacon told defendant she could choose to answer or not answer the questions. Defendant appeared to understand what he was saying. Defendant told Sergeant Chacon she was 25 years old, a high school graduate, and attended the "University."
On cross-examination, Sergeant Chacon admitted it was cold that evening, and defendant exhibited signs of being cold. After defendant was arrested, Sergeant Chacon noticed defendant was shivering.
Sergeant Chacon testified he gave defendant the opportunity to waive her Miranda rights by asking her if she was willing to discuss the matter further. The trial court admitted into evidence People's exhibit No. 2, a videotape of the interrogation. The parties' arguments were not transcribed and the videotape is not contained in the record on appeal. The following exchange took place during the hearing:
Q. —are you willing to waive those rights and talk to me?
A. No.
Q. You started asking her questions?
A. Yes.
* * *
Q. You never got her to say that she was willing to waive the right to speak to you, did you?
A. I didn't see it in that portion of the video you showed.
Q. Do you want to see another portion?
A. I don't think that it's going to assist me in any way. I said what was on the video. I don't remember every word I said on the video."
The trial court denied the motion to suppress statements.
In December 2006, defendant filed a motion to suppress the horizontal gaze nystagmus (HGN) test results. Defendant alleged the results must be excluded because the officer did not conduct the HGN test as required by this court's decision in People v. Kirk, 289 Ill.App.3d 326, 224 Ill.Dec. 452, 681 N.E.2d 1073 (1997). In January 2007, defendant also filed a fifth motion in limine seeking to bar the State from introducing evidence regarding the results of the HGN test unless the State first established the reliability of the test at a Frye hearing (Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)(addressing the standards for permitting evidence of a scientific test)).
At the January 17, 2007, hearing on posttrial motions, the trial court asked the State whether it intended to introduce evidence regarding the HGN test at trial. The assistant State's Attorney responded, "No, Your Honor." The court stated, "I would take that to mean that you would simply agree to the motion." The transcript then reads, "Proceedings not transcribed herein." The court then stated on the record:
In response to the trial court, defense counsel argued the HGN test remained an issue because it was the basis for the officer's probable cause for arrest. The transcript contains the following:
The record is unclear whether the trial court proceeded to address probable cause. However, on January 18, 2007, the day following the hearing and the day of trial, defendant filed a motion to "quash arrest" and suppress evidence. The motion asserted that absent a showing that the HGN test has scientific validity, it could not be reasonably relied on in making a determination of probable cause. Defendant argued that without probable cause, her arrest was illegal and all evidence that flowed from the arrest must be suppressed.
Also on January 18, 2007, the State filed a motion to strike defendant's motion to "quash arrest" and suppress. The State argued that defendant's motion was untimely because it was filed more than 35 days after the discovery order was entered and no just cause existed why the motion could not have been filed in a timely manner.
The trial court held a hearing on the matter that same day. The State argued that the circuit court rules required all motions be filed within 35 days of the discovery order. The State claimed the defendant was attempting to delay the trial.
Defense counsel noted that the previous day, the State indicated it would not offer HGN evidence at trial. Defense counsel argued that this concession did not resolve the issue of a Frye hearing because the officer used the HGN test as a basis for probable cause for the arrest. Defense counsel argued that because the HGN test was not admissible at trial without a Frye hearing, it could not be used to determine probable cause.
The trial court noted multiple problems with the motion to suppress, not the least of which was lack of timeliness. The court observed that defendant's motion "presupposes that the [HGN] test was the only basis for probable cause, which ignores...
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