Nov 20, 2018
Williams, 2018 IL App (2d) 160683
(October). Episode 558b (Duration
Challenging this DUI traffic stop gave us a reason to review
exactly what it takes for police to find probable cause for a DUI
arrest in Illinois.
Apple Podcasts | Google Podcasts | Spotify | Android
| RSS |
SPOTIFY ANDROID RSS
Around 1 in the morning officer sees a car with the left-turn
arrow activated. It then proceeded straight through the
intersection. The car then lunged into the intersection, paused,
and then continued through into the parking lot for the Elgin
The officer stopped the car.
Defendant’s speech was “kind of mumbled, slow and slurred,” and
he smelled an alcoholic beverage “coming from [defendant’s]
person.” Defendant advised the officer that he had come from a
Defendant said he had consumed four beers.
DUI Investigator Arrives
Suspecting that defendant might be impaired, the first officer
called a second officer to the scene. The second officer was more
experienced in DUI investigations. The second officer arrived a few
The DUI investigator testified that he spoke with defendant and
asked him to step out of the vehicle. Defendant emerged from the
vehicle without stumbling or falling, but he swayed as he stood
outside the vehicle.
The second officer also smelled the odor of alcohol on
defendant. He also noticed the defendant’s eyes were “red,
bloodshot, glassy, watery.”
Defendant refused to perform field sobriety tests. Defendant
said a football injury prevented him from performing the tests. He
also claimed that he could not walk a straight line sober.
Defendant was then arrested for DUI.
The Car Search
The car was searched and police discovered what appeared to be
cannabis pipes. They still had a little cannabis inside them.
No Fields, No Blow But Guilty
At the station defendant refused to take the breath
The jury found defendant guilty of the three charged offenses.
Defendant was sentenced defendant to an 18-month term of
conditional discharge and 240 hours of community service.
Defendant contends that there was no probable cause to arrest
him for DUI.
DUI Probable Cause
“Probable cause to arrest exists when the totality of the facts
known to the officer at the time of the arrest are sufficient to
lead a reasonably cautious person to believe that the arrestee has
committed a crime.”
A person is under the influence of alcohol when he or she is
less able, either mentally or physically, or both, to exercise
clear judgment, and with steady hands and nerves operate an
automobile with safety to himself and to the public.
In People v. Wingren, 167 Ill. App. 3d 313, 320 (1988), this
court observed that “[p]robable cause to arrest a motorist for DUI
has been commonly established by the testimony of the arresting
officer, in spite of the defendant’s contradictory testimony, that
the motorist had about him or her the odor or strong odor of
alcohol, had slurred speech or had red and glassy eyes.”
Generally, these observations are supplemented by other
observations apparent to the officer or inferred from his
observations such as speeding, weaving, erratic driving, driving on
the wrong side of the road, being stuck in a ditch or, as in the
case at bar, being in a vehicle which is stuck in the mud.
People v. Motzko
Defendant’s reliance on Motzko is misplaced.
See Episode 347 – People v. Motzko, 2017 IL
App (3d) 160154 (April). Episode 347 (defendant wins his
motioin to supporess no probable casue for DUI).
Here, the trial court’s determination that there was probable
cause to arrest defendant for DUI was not based solely on the odor
of alcohol, defendant’s slurred speech, and his bloodshot eyes. In
addition, defendant improperly proceeded straight through the
intersection when the green left-turn arrow came on.
Not Completely Incapacitated By Alcohol
Defendant notes that he had no apparent difficulty maneuvering
However, even a conviction of DUI does not require proof that
the defendant “was completely incapacitated by alcohol.” People v.
Tatera, 2018 IL App (2d) 160207, ¶ 29. The prosecution need prove
only that the defendant “was impaired by alcohol *** to the extent
that it rendered him incapable of driving safely.”
See Episode 498 – People v. Tatera, 2018 IL
App (2d) 160207 (May) (bad HGN test inadmissible but jury
could still consider defendant’s inability to follow
Episode 468 – People v. Meo, 2018 IL App (2d)
170135 (March) (Citizen’s Tip That Driver Almost Hit The
Building Justifies Investigatory Stop For DUI & Defendant Couldn’t
Follow Directions During The HGN)
He Ran A Red Light
Driving through a red light was evidence that defendant lacked
the mental clarity to operate his vehicle safely.
Yet, contends that his “one instance of ‘poor driving’ was fully
explained by the condition of his vehicle.” However, other than
defendant’s self-serving statements, police had no reason to
believe that defendant’s vehicle was not in good working order.
While defendant may offer innocent explanations for his
behavior, that does not prevent the police from acting on their
After all, the assessment of probable cause is based on the
totality of the facts, and a reasonably prudent person would be
aware of a defendant’s incentive to fabricate an innocent
explanation in order to avoid arrest and prosecution.
While We Are At It…
Although defendant offered an excuse—a football injury—for his
refusal to perform tests, but this excuse did not negate probable
Defendant contends, however, that the evidence of his guilt was
insufficient because he was able to drive his car through the
intersection without weaving or jerking, he activated his turn
signal, he properly pulled into a parking space, he exited his
vehicle without hesitation and without stumbling or falling, and he
was able to communicate with the officers.
Defendant’s argument is without merit. A motorist’s ability to
perform a number of tasks without any indication of impairment does
not necessarily create a reasonable doubt in a DUI
Plus He Was Swaying
Michael and Bajak also observed defendant swaying.
That observation is a factor supporting the trial court’s
conclusion that there was probable cause to arrest defendant for
DUI. See People v. Anderson, 2013 IL App (2d) 121346, ¶ 25.
Refusal Counts For Something
Furthermore, defendant’s refusal to perform field sobriety tests
was probative of impairment. See Tatera, 2018 IL App (2d) 160207, ¶
28 (listing defendant’s refusal to perform any field sobriety tests
among factors contributing to conclusion that evidence was
sufficient to sustain defendant’s DUI conviction).
We therefore conclude that there was probable cause to arrest
defendant for DUI.
That conclusion disposes of defendant’s argument that the
evidence seized during the search of his vehicle should have been
suppressed. We note the defendant challenge the search of his
vehicle after his arrest. There was no Arizona v. Gant
Accordingly, we conclude that the evidence was sufficient to
prove beyond a reasonable doubt that defendant was guilty of
See These Older Cases
In People v. Weathersby, 383 Ill. App. 3d 226 (2008), we
affirmed a DUI conviction on the basis of evidence similar to the
evidence in this case. In that case, the defendant’s speech was
“thick-tongued,” his eyes were glassy, a three-quarters-empty
bottle of malt liquor was found in his vehicle, and his breath
smelled of alcohol. The defendant also refused to take a breath
Here, defendant’s “eyes were glassy and bloodshot” and that his
speech was “thick-tongued and slurred.” See Wingren, 167 Ill. App.
3d at 320 where probable cause to arrest a motorist for DUI has
been commonly established by the testimony of the arresting officer
that the motorist had about him or her the odor or strong odor of
alcohol, had slurred speech or had red and glassy eyes.
The odor of alcohol on a defendant’s breath and his inadequate
performance of a field sobriety test do not constitute reasonable
grounds to believe that the defendant was driving under the
influence. See People v. Boomer, 325 Ill. App. 3d 206, 209
(2001) (officer lacked probable cause to arrest defendant for DUI
where defendant was involved in accident, admitted drinking, and
had the odor of alcoholic beverage on his breath).
This Is Probably Now The Law
Episode 294 – People v.
Day, 2016 IL App (3d) 150852 (January) (no probable
cause for this DUI arrest, defendant passed the FST’s and he was
driving nearly perfect). Where a defendant admitted to
drinking, had the strong odor of alcohol on his breath, had
bloodshot eyes, and slurred his speech, the trial court properly
ruled that the officer lacked probable cause to arrest the
defendant for DUI because any suspicions of impairment were not
corroborated by other factors, such as poor driving, stumbling,
falling, or an inability to communicate.
Speeding and being involved in an accident are insufficient
bases upon which to support a DUI probable cause determination.
See People v. O’Brien, 227 Ill. App. 3d 302, 307
(1992) (no probable cause to arrest defendant for DUI where
defendant was speeding, admitted to drinking, and unsuccessfully
performed sobriety test).
Episode 549 – People v. Lopez, 2018
IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has
Got To Be Specific Plus Identity Information Is Suppressible)
Before You Go...
If you are an Illinios attorney and keeping up with the case law
is important to you then read below to see how to get a free copy
of my book.
You can't argue with the idea that steady, persistent attention
to the cases increases your litigation game. Are you ready to join
the other attorneys who have discovered how to make their ears
their secret weapon?