Opinion
1-19-2590
03-31-2022
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES McKEE, Defendant-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 1-19-2590 The Honorable Geary W. Kull, Judge Presiding.
JUSTICE PUCINSKI delivered the judgment of the court. Justices Coghlan and Walker concur in the judgment.
ORDER
PUCINSKI, JUSTICE
¶ 1 Held: The circuit court erred in granting defendant's motion to quash arrest and suppress evidence because defendant consented to the urine test, following his arrest for driving under the influence, pursuant to the implied consent test.
¶ 2 The State appeals from the order of the circuit court of Cook County granting defendant Charles McKee's motion to quash arrest and suppress evidence. The State contends that the circuit court erred in granting defendant's motion where the evidence established that defendant consented to a urine test shortly after defendant's arrest for driving under the influence. For the following reasons, we reverse the circuit court's order granting defendant's motion to quash arrest and suppress evidence, and remand for further proceedings.
¶ 3 BACKGROUND
¶ 4 Defendant was charged by indictment number 18 CR 8543 with nine counts of various forms of aggravated driving under the influence of one or more drugs (specifically cocaine and tetrahydrocannabinol (THC)) and being involved in a motor vehicle accident that resulted in great bodily harm to another. Prior to trial, defendant filed a motion to quash arrest and suppress evidence along with a motion to suppress evidence illegally seized. He claimed that he was arrested without probable cause and that the urine sample taken from him at the police station should be suppressed where he consented to provide the urine sample only after the officers made threats to him by telling him "that it would be pointless to refuse because they would just get a warrant."
The other person involved in the motor vehicle accident had one of his legs amputated.
¶ 5 The circuit court held a hearing on the motion over the course of two different dates. On the first day of hearing, defendant presented the testimony of Cicero Police Officer Baldo Bello. Bello testified that on May 29, 2018, at approximately 11:00 p.m., he responded to a request by his watch commander, Captain Flores, to come to the scene of a vehicular accident with injuries in the 3300 block of South Cicero Avenue, Cicero, Illinois. Upon arriving at the scene, he met with Flores as well as other officers, at which point he learned that defendant was the driver of a vehicle and had just been involved in an accident. Defendant's vehicle was in the left-hand turn lane, when he failed to yield to a motorcycle that was entering the intersection from the opposite direction. Bello learned that several officers had interacted with defendant and suspected that defendant may have been under the influence of alcohol or an unknown controlled substance. Flores asked Bello to speak with defendant to conduct a driving under the influence (DUI) investigation.
¶ 6 Bello, and his partner, Officer Lopez, approached defendant and introduced themselves. At that time, defendant was speaking with some of his family members. When Bello approached defendant, defendant had a "glazed over look in his eyes[, ]" and his eyes were tracking in a "jerking manner." Bello asked defendant to step away from the family member, so that they could converse with each other. He noticed that defendant was also excited, very talkative, and asked a lot of questions. Defendant repeatedly denied that the accident was his fault. Bello then asked defendant to submit to the field sobriety tests, and defendant agreed. When Bello asked defendant to follow him to another area to conduct the field sobriety tests, defendant could not walk straight and swayed left and right.
¶ 7 Bello testified that he previously received training in administering the field sobriety tests and determining whether a person was under the influence of alcohol or drugs. In his fifteen years as a police officer, he had made over one hundred arrests for persons being under the influence of alcohol or drugs. He had also seen hundreds of people under the influence of alcohol or drugs in his personal life.
¶ 8 Bello first administered the horizontal gaze nystagmus (HGN) test to defendant, during which Bello watched to see whether defendant's eyes pursued smoothly from left to right. Bello explained that, during the HGN test, the eye of someone under the influence of alcohol will shake differently from someone who is under the influence of drugs. The consumption of alcohol, in most cases, will produce an involuntary, horizontal jerking of the eye, whereas a vertical nystagmus of the eye will occur when someone has consumed high volumes of alcohol or ingested a stimulant, such as a narcotic or other controlled substance.
¶ 9 Bello found that defendant's eyes did not pursue smoothly throughout the test and were moving in a "very jerky manner." He also described them as "aggressive" and "distinct." He concluded that defendant had shown "six clues" of drinking alcohol during the HGN test, as well as vertical nystagmus of the eye, indicating that he had consumed a high volume of alcohol or ingested a stimulant, such as a narcotic, or some other controlled substance. Bello stood approximately six inches from defendant's face during the tests, but he did not smell any alcohol or marijuana on defendant's breath.
¶ 10 Officer Bello administered the one-leg stand test and the walk-and-turn test, as outlined in the National Highway Traffic Safety Administration (NHTSA) instructions. First, for the one-leg stand test, he let defendant choose which leg to use, and defendant did not disclose that he had any injuries to his legs that prevented him from performing this test. Defendant chose his left leg. When defendant performed the test, Bello noticed that defendant swayed and hopped, had to put his foot down, and used his arms to balance himself. For the walk-and-turn test, he showed defendant how to stand with his right foot in front of his left heel, and to take nine heel-to-toe steps forward on a line in one direction, turn, and then take nine heel-to-toe steps in the opposite direction. Defendant could not stand with his right foot in front of his left foot. Defendant missed the heel-to-toe step one time going forward and one time going in the opposite direction. Defendant also stepped off the line twice during the test. In Bello's opinion, defendant did not pass these particular tests.
¶ 11 Defense counsel questioned Bello as to the NHTSA provisions regarding the effect of the weight of the person who is performing the tests. Bello explained that, according to the NHTSA, reliability of the one-leg stand test may be affected where the subject is fifty pounds or more overweight. On the police arrest report, defendant's weight is listed at 380 pounds, and his height is listed at six feet.
¶ 12 Upon questioning by the court, Bello testified that he had a certification through the Illinois Training and Standards Board for basic DUI enforcement. As part of his training, he had attended numerous refresher courses to stay current with this area of the law. He agreed that the walk-and-turn test, as well as the one-leg stand test, do not test whether someone is under the influence of a controlled substance. He explained that the HGN test is meant to determine consumption and the other two tests detect impairment.
¶ 13 Based upon the information that he had received from the other officers as to the cause of the accident, his observations of defendant, and defendant's failure of the three field sobriety tests, Bello placed defendant under arrest for driving under the influence of an unknown substance and issued him a ticket pursuant to section 11-501 of the Illinois Vehicle Code (Code). 625 ILCS 5/11-501 (West 2019). Bello further testified that, while defendant was at the police station, the officers took a urine sample from him.
¶ 14 At the conclusion of the first day of the hearing, the circuit court found that there was probable cause to believe that defendant was impaired, and that defendant was "lawfully at the police station." The circuit court further remarked, however, that it did not know what the circumstances were for taking the urine sample from defendant. After stating that it needed "more information on the urine sample before I'm able to suppress that aspect of it[, ]" the circuit court continued the hearing on the motion for any further testimony and argument.
¶ 15 When the case was recalled on the next court date, the circuit court recapped what happened during the first day of the hearing, and stated, in pertinent part:
"However, I think the officer is right in then bringing him to the police station based on what he knew for either further testing either to ask whether or not [defendant] wanted to take a breath test and then deal with that, or whether or not [defendant] wanted to participate in a urine or blood test.
I don't know the circumstances for that urine or blood test. I do not believe that there was probable cause that he was under the influence of drugs at the time, but sufficient probable cause to believe he was impaired. And that - - for that reason he went to the police station.
So, without knowing the circumstances that surrounded that urine test - - A, was it simply I got to go to the bathroom? Okay. Well, pee in this cup, or we're going to sit here until you perform this urine test. Or do you want to perform the urine test and, here, sign this document saying you do so voluntarily. I don't know that.
So, if there's some clarification on that aspect of this that will affect my ruling, let me know. If not, then that's pretty much where I stand…
***
See, then I think we need to have an expansion on how it is that that test comes into existence, because I think he's lawfully at the police station. I don't think he's lawfully required to take a pee test. I don't think he could have been taken for a blood test either under the circumstances that were described to me. So that's where we stand."
¶ 16 When the hearing re-commenced, Bello was recalled by the State. He explained that he placed defendant under arrest for suspicion of DUI. He and his partner, Officer Martin Lopez, escorted defendant to the Cicero Police Station, where he read aloud to defendant the standardized warning to motorist form at 11:39 p.m. Bello explained that he is required to read this form any time a motorist is brought into the station under suspicion of having driven under the influence of alcohol, controlled substance or intoxicating compound. This form, which was signed by Bello and dated May 29th, 2018, at 11:39 p.m., was introduced into evidence. The warning to motorist shown to defendant informed him that, "… If you refuse or fail to complete all chemical tests requested…" his driving privileges would be revoked for a period of time depending upon whether the defendant was a first offender, not a first offender, or involved in a motor vehicle accident involving personal injury or death to another. During the hearing, Officer Bello read aloud a portion of the warning to motorist form. On the space within the form that allows for the motorist to sign to acknowledge receipt, Bello wrote "Refused" after defendant informed him that he would not sign.
¶ 17 Bello further testified that defendant was given the opportunity to submit to a breathalyzer test and a urine test, and that defendant agreed to submit to both tests. Specifically, as to a breath test, Bello was asked, "Did he say yes to a breath test?" Bello responded, "Yes, he did." Bello further testified that after defendant submitted to the breathalyzer test, he submitted to a urine test. Defendant was given a cup for the urine test and instructed on how to fill the cup with a urine sample. Bello and Lopez guided him to an empty prison cell, with a toilet behind a partitioned area, and was present when defendant provided a urine sample. Bello was asked whether "…at any time, did the defendant refuse to submit to the urine test." Bello responded, "He did not."
¶ 18 The State introduced into evidence a video recording (without audio recording) showing part of defendant's time at the police station. The video, which was published to the trial court and is contained in the record on appeal, shows Bello reading the "Warning to Motorist form" to defendant and defendant participating in the breathalyzer test. In the beginning of the video, defendant is inside a processing room at the police station, along with two police officers. One of the officers appears to read a form to defendant. Defendant does not appear to sign this form. The officers bring defendant into the adjacent room, where he uses a breathalyzer machine once at 12:01 a.m. and a second time at 12:02 a.m. At 12:03 a.m., apparently at an officer's instruction, defendant removes his hat, empties his pockets, puts his hands against the wall, and is patted down. At 12:04 a.m., an officer hands a cup to defendant, and the two officers and defendant exit that processing room. At 12:06 a.m., defendant and the two officers return to the processing room, and one of the officers is holding a cup. At 12:07 a.m., the officer appears to seal the cup.
¶ 19 On cross-examination, the following colloquy occurred:
Q. And after you read him - - well, did you have any conversation with him prior to reading the Warning to Motorist?
A. I'm sure I did.
Q. Were you asking him questions?
A. I can't recall what I was asking him.
Q. Well, you said that he agreed to blow into the breathalyzer, correct?
A. That is correct.
Q. So I'm assuming that you at least asked him one question which was would you blow into the breathalyzer, correct?
A. I'm sure I did ask him that. I don't know if it came before or after I finished reading the Warning as to your question.
Q. The point being, when he was during this interplay, whether it was before the Warning to Motorist or after, you were asking him questions?
A. Yes.
Q. One of those questions that you were asking him was whether or not he would blow into the breathalyzer, correct?
A. I think that's a fair statement, sure.
Q. You said that he - - his response was yes, correct?
A. I stated he agreed to give a breath sample.
Q. So can it be fair - - did he answer, did he give an answer when you asked him?
A. He complied with my instructions.
Q. At any time while you were asking questions, did he give you answers?
A. Well, I don't know that I asked him any specific questions that would require an answer. Maybe, do you understand would be a general question to ask while I'm explaining instructions and guiding him in the process.
Q. When he asked the question of this gentleman, [defendant], would he sign the paper acknowledging that you read him the Warning to Motorist, what did he say to that question.
A. He refused to sign the document.
Q. He would not cooperate with you, with you having him sign the document, is that a fair statement?
A. He refused to sign the document, correct.
¶ 20 Bello further testified that at approximately 2:00 a.m., Bello took defendant to the hospital, and defendant and the officers returned to the station at 2:40 a.m., at which point defendant was informed of his Miranda rights. Bello was not asked to explain why defendant was taken to the hospital. Bello also noted in his police report that, after defendant was advised of his Miranda rights, he refused to speak to the officer and requested a lawyer. On redirect examination, Bello explained that defendant was cooperative with the officers that evening until he was advised of his Miranda warnings, after which he did not want to speak to the officers.
¶ 21 At the conclusion of the hearing, the circuit court ruled, in pertinent part:
"So I have had an opportunity to watch the disk. I have reread the transcript of what the original testimony was of Officer Bello.
I gave the State an opportunity or gave somebody an opportunity to call the officer to see whether or not what happened subsequent to [defendant] going to the police station.
And what I felt at that point in time, although the officer really doesn't say what he's taking him into custody for, that he had a right to take him into custody originally for failing those sobriety tests and the nystagmus tests.
But if you watch this video, [defendant] is not really, quote, taken into custody until after he takes the breathalyzer test. He takes, I guess, two breathalyzer tests or at least twice blows into the machine.
I don't know what the results of that breathalyzer area or were. And it's at that time that he is patted down and searched by the officers. Ostensively [sic], I would guess for the first time, because there would be no reason for him to do it on the video.
So my belief is he was in custody at that point in time for driving under the influence [of] alcohol.
And then he appears to consent to a urine test.
The question is whether or not that, I guess, what I'm saying here, I don't know what that BAC was. I don't know whether or not that was in some way determinative of what the officers may have done. If a BAC came back at zero point 3, would the officers still have arrested Mr. McKee and placed
him into custody? If on the other hand it came back zero, zero, zero, would they have still arrested and taken into custody? And if it came back at zero, zero, why did they pat him down. And why did they ask him to take a urine test? I just don't know the answer to those questions.
And what I said in that initial transcript and what I still say, is he simply then under arrest because he didn't walk straight and the nystagmus showed some sort of consumption? That's what the officer said consumption.
All right. I agree with the defense in this particular matter. I think this becomes a fishing expedition at some point in time.
So as of today's date, I'll grant the motion to quash."
¶ 22 The State filed a written motion for reconsideration, and the court heard oral argument on that motion. In its written motion and at the hearing on the motion, the State argued that the circuit court was correct in finding that the officers had probable cause to arrest defendant for DUI, but that the circuit court erred in finding that, even though defendant was taken back to the police station, he was not actually taken into custody until after he took the breathalyzer test. The State also argued that the circuit court erred in finding that there was no probable cause to ask defendant to submit to a urine test after he submitted to a breathalyzer test. The State urged that, after a police officer has probable cause to believe a driver is chemically impaired and makes an arrest for DUI, the officer may then request any and all tests to determine whether the driver is, in fact, chemically impaired. Further, citing to People v. Kirk, 291 Ill.App.3d 610 (4th Dist. 1997), the State pointed out that there is no requirement that an officer have individualized suspicion of drugs or alcohol before requesting multiple tests. Citing to People v. Darden, 2017 IL App (3d) 160409, the State argued that it is reasonable for a police officer to request further testing after a breathalyzer to determine whether there are other drugs in the defendant's system.
¶ 23 During the State's argument, the circuit court questioned why Bello would ask defendant to submit to a breathalyzer test if Bello did not believe that defendant was under the influence of alcohol. The State responded that this question was not asked at the hearing, but that in any event, pursuant to the Code, the officers had the right to ask defendant to engage in more than one chemical test. In response, defendant's counsel argued that the officers did not have probable cause to make an arrest, defendant had not given consent to the officers for the urine test and that the officers had engaged in a "fishing expedition" when they sought more than one chemical test.
¶ 24 In denying the motion for reconsideration, the trial court stated, in pertinent part:
"No. I'm going to allow my ruling to stand. I do believe that it's exactly that, that [defendant] was pretty much just taken into custody, and they were going to figure out something that was going on. They didn't know what. They had no real idea what. That was the reason they gave him every test under the sun.
And I'm not sure that under the circumstances that were - - existed on the scene, that being that unnamed, unidentified officers quoted unnamed and unidentified conduct that had them believe that [defendant] was under the influence. The officer then approached and only found him to be talkative. There was no smell of alcohol. I don't believe he actually consented to the test. I believe he was in custody at the time of the test. I believe he took the test because he was in custody and not - -and that's evidenced by the fact that he never signed any documentation. So I'm going to let my ruling stand…
… And I point out there are differences in the cases that you pointed - - pointed out. I was just reading the Kirk one. I hadn't read Kirk. I read the other ones. But Kirk was actually - - it wasn't reversed based on - - the reason that Kirk was initially granted and then reversed by an appellate court really had nothing to do with the issues that are presented here."
¶ 25 Subsequently, the State filed its certificate of substantial impairment and a timely notice of appeal.
¶ 26 ANALYSIS
¶ 27 The State argues that the circuit court erred in granting defendant's motion to quash arrest and suppress evidence. In reviewing a circuit court's ruling on a motion to suppress evidence, this court employs a two-part standard of review. People v. Brooks, 2017 IL 121413, ¶ 21; citing People v. Cosby, 231 Ill.2d 262, 270-71 (2008). "Under this standard, a circuit court's factual findings are reversed only if they are against the manifest weight of the evidence, while the court's ultimate legal ruling as to whether suppression is warranted is reviewed de novo." Brooks, 2017 IL 121413 at ¶ 21; citing Cosby, 231 Ill.2d at 271. "A finding is against the manifest weight of the evidence only if 'the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.'" People v. Relwani, 2019 IL 123385, ¶ 18; quoting People v. Deleon, 227 Ill.2d 322, 332 (2008).
¶ 28 The State argues that de novo review is appropriate where the circuit court never questioned the credibility of Officer Bello and the videotape of the encounter between defendant and Officer Bello "speaks for itself." The State further argued that it was only challenging the ultimate ruling regarding whether suppression of the urine test results was warranted based upon whether defendant consented to the test. In response, defendant argued that this court should employ the manifestly erroneous standard where the State's argument related solely to factual findings as to whether he consented to a urine test. He also argued, that even if de novo review was employed, this Court should affirm the trial court's decision.
¶ 29 De novo review is appropriate when neither the facts nor the credibility of the witnesses is disputed. See People v. Anthony, 198 Il.2d 194, 200-201 (2001). Neither the facts nor credibility of Officer Bello was questioned in this case where he was the only witness to testify at the suppression hearing and the trial court never granted the suppression motion because it questioned Barr's credibility. Because the present case involves the application of the law to undisputed facts, our review of the State's legal challenge to the suppression order is de novo.
¶ 30 Moreover, in the trial court, the defendant has the burden of proof on a motion to quash arrest and suppress evidence. People v. Cregan, 2014 IL 113600, ¶ 23. The defendant must make a prima facie case that the evidence was obtained by an illegal search or seizure. Brooks, 2017 IL 121413 at ¶ 22 (citing People v. Gipson, 203 Ill.2d 298, 306 (2003)). A prima facie showing requires the defendant to establish the factual and legal bases for the motion to suppress. Id. at ¶ 22. "If the defendant makes a prima facie showing that the evidence was obtained in an illegal search or seizure, the burden shifts to the State to provide evidence to counter the defendant's prima facie case." Id. However, "[t]he ultimate burden of proof remains with the defendant." Id.
¶ 31 Initially, we note that defendant concedes that there was probable cause to arrest him for DUI after the field sobriety tests, so he does not challenge the circuit court's probable cause determination. Considering defendant's concession, our discussion will focus on the State's argument relating to the circuit court's determinations that defendant did not consent to the urine test and that it was inappropriate for the officers to request that defendant submit to the urine test.
¶ 32 We first address the trial court's legal finding that the officers obtained defendant's urine sample without his consent. The State argues that defendant consented to the urine test, pursuant to the statutory implied consent test, and after the police advised him in the standard "Warning to Motorist" about the ramifications if he did not agree to chemical testing. In support of its position, the State relies upon the Bello's testimony showing verbal consent, as well as the videotape showing the tests being administered to defendant. The State also points out that defendant did not provide any evidence contradicting this testimony and evidence. Defendant responds that he did not voluntarily consent to the urine test and, instead, merely acquiesced due to the officers' coercive tactics. In other words, citing People v. Green, 358 Ill.App.3d 456, 463 (2nd Dist. 2005), he suggests that he did not consent to the test but "was submitting to the 'foregone conclusion' that refusing the test was a futile act." He also cites People v. Anthony, 198 Il.2d 194 (2001) and People v. Hayes, 2018 IL App (5th) 140223, as examples of cases in which the reviewing courts found that the defendants did not consent.
¶ 33 Absent from the circuit court's analysis, as well as defendant's discussion of the issue of consent, however, is the recognition that the concept of implied consent is applicable in this case. The implied consent statute provides, in pertinent part:
" (a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11-501.2, to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person's blood if arrested, as evidence by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501 or
similar provision of a local ordinance, or if arrested for violating Section 11-401. If a law enforcement officer has probable cause to believe the person was under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof, the law enforcement officer shall request a chemical test or tests which shall be administered at the direction of the arresting officer. The law enforcement agency employing the officer shall designate which of the aforesaid tests shall be administered. Up to 2 additional tests of urine or other bodily substance may be administered even after a blood or breath test has been administered…625 ILCS 5/11-501.1 (West 2016).
¶ 34 Bello testified that he arrived at the scene at approximately 11:00 p.m., and shortly thereafter, placed defendant under arrest for DUI and issued him a ticket pursuant to section 11-501 of the Illinois Vehicle Code (Code). 625 ILCS 5/11-501 (West 2019). As a result, the officers in this case obtained defendant's implied consent to submit to chemical testing pursuant to the implied consent test, contained in section 11-501.1 of the Code. 625 ILCS 5/11-501.1 (West 2016). The implied consent test provides that any person who drives a motor vehicle on an Illinois highway is deemed to have consented to submit to chemical testing to determine the amount of alcohol or any other intoxicating compound in his or her system if he or she is arrested for DUI. 625 ILCS 5/11-501.1(a) (West 2016). A "person who is dead, unconscious, or who is otherwise in a condition rendering the person incapable of refusal, shall be deemed not to have withdrawn the consent" provided in section 11-501.1(b) of the Code. 625 ILCS 5/11-501.1(b) (West 2016). Otherwise, if the motorist is not dead, unconscious, or in a condition rendering him incapable of refusal, the arrested motorist may withdraw the implied consent and refuse testing. People v. Ehley, 381 Ill.App.3d 937, 944 (4th Dist. 2008), citing People v. Fisher, 184 Ill.2d 441, 444 (1998).
¶ 35 "Implied consent, however, may be revoked, as when the driver refuses to consent to a test." People v. Miranda, 2012 IL App (2d) 100769, ¶ 20. If a defendant refuses to submit to testing, it will result in the statutory summary suspension of the defendant's driving privileges. 625 ILCS 5/11-501.1 (c) (West 2016). "One of the purposes of the implied consent law is to help law enforcement officers gather evidence for DUI prosecutions by inducing motorists to submit to testing." People v. Severson, 379 Ill.App.3d 699, 702 (2d Dist. 2008) (citing People v. Myers, 130 Ill.App.3d 681, 684 (3d Dist. 1985)). Consequently, the suspension period is longer when the motorist refuses to submit to, or fails to complete, the requested tests than when testing reveals a blood alcohol level of 0.08 or more. 625 ILCS 5/6-208.1(a) (West 2016). "[T]he overriding purpose of the statutory scheme is to make the highways safer, and the implied-consent statute, being remedial in nature, should be liberally construed to accomplish this goal. People v. Wegielnik, 152 Ill.2d 418, 425 (1992); See also People v. Johnson, 197 Ill.2d 478, 487 (2001). The purpose of the "warnings required by the implied-consent statute [is] not meant to enable an 'informed choice.'" Johnson, 197 Ill.2d at 487. "Specifically, warnings are an evidence-gathering tool for the State." Id. at 487-488.
¶ 36 Pursuant to the Code, at 11:49 p.m., after the officers and defendant arrived at the police station, Bello also provided defendant a "Warnings to Motorist" form in which defendant was warned that "a refusal to submit to the test will result in the statutory summary suspension of the person's privilege to operate a motor vehicle, as provided in Section 6-208.1 of this Code…" 625 ILCS 5/11-501.1(c) (West 2016). When the officer asked defendant for his signature to acknowledge that he had read this form, defendant refused to do so, and the officer wrote "Refused" on the written form. See 625 ILCS 5/11-501.1(c) (West 2016) ("…If the person refuses to acknowledge receipt of the warning, the law enforcement officer shall make a written notation on the warning that the person refused to sign the warning…").
¶ 37 The evidence established that defendant verbally consented to the chemical testing. During the time that Bello was providing the warnings to defendant, he was asking him questions, including speaking to him about whether he would agree to perform a breath test, and defendant's response was "yes." At one point, Bello was asked, "So I'm assuming that you at least asked him one question which was would you blow into the breathalyzer, correct?" Bello responded, "I'm sure I did ask him that. I don't know if it came before or after I finished reading the Warning as to your question." He explained that he would typically request that the defendant either provide a breath test or provide a blood or urine sample. While Bello testified as to defendant's verbal response to his request for a breath test, he did not specifically testify as to what defendant stated in response to the request for a urine test. However, he testified that defendant agreed to submit to both tests and that defendant never refused to submit to the urine test. He never conceded that defendant did not give him verbal consent. Contrast People v. Anthony, 198 Ill.2d 194, 198 (2001) (the officer conceded that the defendant never gave him verbal consent). In fact, Bello was asked if defendant ever refused to submit to the urine test, and he responded, "He did not."
¶ 38 The prosecution also introduced into evidence a videotape recording showing defendant submitting to two breath tests, followed by a urine test. From the videotape, these tests occurred between 12:01 and 12:06 a.m. At 2:00 a.m., after defendant had already submitted to the breathalyzer test and the urine test, defendant was transported to the hospital and, upon returning to the police station, at 2:40 a.m., he was advised of his Miranda rights.
¶ 39 Defendant seeks for this court to find that, not only did he not verbally consent, but also, that his actions showed that he merely acquiesced because of coercion. Initially, it is important to recognize that, in looking at whether a defendant refused, "…no court has found that a refusal occurs only when there is an express verbal refusal." Village of Spring Grove v. Pedersen, 2016 IL App (2d) 150691, ¶ 10. A defendant is considered to have refused to submit to a chemical test "where, after a clear warning of the ramifications resulting from a refusal [citation], an officer explicitly asks a defendant whether he, or she, will take the test, and the defendant by word, act or omission, clearly refuses to take the test." People v. Huisingu, 242 Ill.App.3d 418, 421 (4th Dist. 1993) (citing People v. Brennan, 122 Ill.App.3d 602, 603 (3rd Dist. 1984)); see also Village of Spring Grove, 2016 IL App (2d) 150691 at ¶ 10. "Under this rubric, a defendant refuses when, in lieu of expressly refusing, the defendant insists on a nonexistent right to counsel, fails to respond due to confusion or disorientation that his own intoxication caused, or feigns consent by repeatedly failing to complete the test as instructed. [Citations.]" Village of Spring Grove, 2016 IL App (2d) 150691, ¶ 10. Moreover, in deciding whether defendant has refused a test, courts will employ an "objective review" of the questions asked by the officer and the defendant's response. Huisingu, 242 Ill.App.3d at 421.
¶ 40 Defendant does not point to any words or actions on his part in which he communicated to the officers that he was refusing to submit to chemical testing. As far as verbal expression of refusal, defendant concedes that there is no evidence that he verbally communicated his refusal to submit to chemical testing. As far as physical actions, the videotape showed the circumstances surrounding defendant's submission to the testing procedures. While the videotape did not provide an audio of this interaction, the videotape did not reveal any type of physical actions by defendant that he expressed his refusal to submit to the chemical tests. There was also no evidence showing that defendant was physically unable to perform the simple tasks involved in the chemical testing. Instead, the evidence showed that defendant successfully submitted to the chemical testing as requested by the officer. See People. v. Doherty, 144 Ill.App.3d 400, 403-404 (2d Dist. 1986) (failure to ultimately comply with the officer's instructions so as to complete a chemical test constitutes a refusal).
¶ 41 Instead of relying upon his own words and actions, he relies upon a theory that his consent was involuntary where he only agreed to submit to the test based upon the coercive circumstances that existed at the time that the officer made the request. In support of his claim that the circumstances were coercive, he argues that he "submitted and surrendered to officers who had held him for at least three hours, put him through a series of tests, questioned him, and formally arrested him; [he] did not consent to the urine test, he acquiesced to it." In addition to arguing that he was held by the police for at least three hours, he also notes that he went to the hospital and then returned to the police station before he was tested.
¶ 42 The evidence, however, does not support defendant's argument that he acquiesced to the chemical testing because he was coerced. The circumstances surrounding defendant's arrest were not coercive. In fact, defendant does not point to any verbal threats or physical actions on the part of the officers to support his claim. After defendant consented to participating in the field sobriety tests and failed these tests, Bello placed defendant under arrest and issued him a ticket for DUI. Defendant was transported to the police station and properly advised of the "Warning to Motorist" so that he could make a fully informed decision regarding chemical testing. Defendant was even informed, pursuant to the warning to motorists, that he had the right to refuse to consent to chemical testing. See People v. Redman, 386 Ill.App.3d 409, 424 (4th Dist. 2008) (listing one of the factors to consider in determining the voluntary nature of consent is whether the defendant knew or was told that he had the right to refuse to consent).
¶ 43 The evidence refutes defendant's contention that he provided the urine sample after he had been in police custody for three hours, and after he returned from the hospital and was given Miranda warnings. The evidence shows that defendant provided the urine sample approximately one hour after Bello arrived at the scene of the accident and prior to defendant's trip to the hospital and receiving his Miranda warnings. Bello testified that he arrived at the scene of the accident around 11:00 p.m. After defendant was arrested and transported to the police station, the officer read the "Warning to Motorist" form to defendant at 11:39 p.m. From the videotape, it is clear defendant participated in the first breath test at 12:01 a.m. and gave the urine sample at 12:06 a.m. While the circumstances as to why defendant was transported to the hospital were not explained, Bello testified that the trip to the hospital did not occur until approximately 2:00 a.m. At 2:40 a.m., Bello and defendant returned to the police station, at which point defendant was read his Miranda rights. Therefore, because defendant's brief visit to the hospital and the subsequent reading of his Miranda rights occurred after defendant had already submitted to the chemical tests, this evidence did not support defendant's contention that he had been coerced into submitting to these tests. Moreover, Miranda warnings are not required as the taking of a breathalyzer is not of a testimonial nature. People v. Cook, 94 Ill.App.3d 73, 76 (1st Dist. 1981); See also Village of Algonquin v. Ford, 145 Ill.App.3d 19, 21 (2d Dist. 1986). Viewing the totality of the evidence surrounding defendant's arrest, there was no evidence that Bello used coercive tactics in obtaining defendant's consent to chemical testing.
¶ 44 Moreover, we reject defendant's reliance upon the trial court's statements that it "believe[d] he took the test because he was in custody and not - and that's evidence [sic] by the fact that he never signed any documentation." First, being in custody is not determinative of the issue regarding whether a defendant has consented to a search. See People v. Shinohara, 375 Ill.App.3d 85, 97 (1st Dist. 2007) (" 'the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search'") (quoting United States v. Watson, 423 U.S. 411, 424 (1976)).
¶ 45 Additionally, defendant does not provide this court with any authority for the proposition that a person's refusal to sign the "Warning to Motorist" form constitutes evidence of a refusal to submit to chemical testing. See Ill.S.Ct.R. 341(h)(7) (eff. Nov. 1, 2017) (requiring that the argument section of appeals briefs "shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on"). There is nothing in the "Warning to Motorist" form that serves as a means for a defendant to assert his or her desire to refuse chemical testing. Here, defendant does not dispute that he received the warnings and that he understood the warnings. Moreover, defendant did not testify at the hearing. Consequently, his claim that he refused to sign this form because he wanted to communicate his desire to refuse to submit to chemical testing is not based upon any evidence presented at the hearing. Therefore, defendant's refusal to sign the "Warning to Motorist" form does not impact the assessment of whether the evidence showed defendant consented or refused to submit to chemical testing.
¶ 46 In fact, defendant's refusal to sign this form stands in sharp contrast to his claim that he merely acquiesced to the testing because he had been coerced by the circumstances surrounding his arrest. His refusal to sign the paper leads us to believe that he was also free to refuse the urine test.
¶ 47 In support of his argument, defendant relies on People v. Anthony, 198 Ill.2d 194 (2001). In Anthony, the arresting officer testified that, during a street stop, when he asked the defendant if he would consent to a search of his person, the defendant did not give him verbal consent to search him and instead, simply spread his legs and put his hands on his head. The supreme court was asked to consider, in the context of the fourth amendment, whether the defendant's nonverbal consent to the search of his person amounted to a valid consent to search. The court found that a "defendant may convey consent to search by nonverbal conduct [citation omitted] but 'mere acquiescence to apparent authority is not necessarily consent.'" Anthony, 198 Ill.2d at 202, quoting People v. Kelly, 76 Ill.App.3d 80, 87 (1979).
¶ 48 The court further found that" [i]n the case of nonverbal conduct, where dueling inferences so easily arise from a single ambiguous gesture, the defendant's intention to surrender this valuable constitutional right should be unmistakably clear." Id. at 203. When a defendant alleges that the consent to search was obtained because of coercion, the court should examine "'all of the surrounding circumstances to determine if in fact the consent to search was coerced, [and] account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.'" Id. at 202, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973). In Anthony, the court found that defendant's gesture to assume the position of an arrestee showed that "he submitted and surrendered to what he viewed as the intimidating presence of an armed and uniformed police officer who had just asked a series of subtly and increasingly accusatory questions." Id. at 203. In doing so, the court looked at evidence that the defendant was "nervous[, ] his hands were shaking, and his voice was stuttering." Id. at 198. Therefore, in Anthony, the court found that the defendant's nonverbal consent was obtained in the face of a coercive environment.
¶ 49 This Court recognizes that Anthony dealt with the issue of whether the defendant consented to a search through his nonverbal conduct, as opposed to here, where this court is asked to consider defendant's right to refuse the testing procedures after defendant already consented to chemical testing pursuant to the implied consent statute. In both situations, the courts have held that nonverbal conduct to show consent can satisfy the constitutional concerns. Anthony, 198 Ill.2d at 202 (a defendant may convey consent to search by non-verbal conduct); Village of Spring Grove v. Pedersen, 2016 IL App (2d) 150691, ¶ 10 ("…no court has found that a refusal occurs only when there is an express verbal refusal.")
¶ 50 The facts in the instant case stand in sharp contrast to those in Anthony. Looking at whether there was non-verbal consent, defendant's consent was obtained in a situation in which he was already properly placed under arrest, as there was probable cause to arrest. While defendant in Anthony was not provided any warnings prior to the search, here, defendant was properly informed of the warnings to motorist so that he could make a well-informed decision as to whether he should consent or refuse the testing. He was informed that a refusal would lead to a longer period of a statutory summary suspension. 625 ILCS 5/6-208.1(a) (West 2016). Then, defendant followed the officers into the testing room and submitted to a breath test. He also followed the officers to another room so that a urine test could be conducted. Unlike in Anthony there was no evidence that the officers engaged in a "series of subtly and increasingly accusatory questions [.]" There was also no testimony that defendant was nervous during this time period, and the video does not support such a conclusion. While defendant contends that the circumstances surrounding his decision were coercive, this court has already found that the surrounding circumstances of his arrest were not coercive. In other words, there is no support for his claim that he merely acquiesced.
¶ 51 As far as the question of consent, considering the totality of the undisputed facts in this case, this court finds that the circuit court's erred in finding that defendant did not consent to the chemical testing. The evidence did not support the circuit court's conclusion that defendant's consent to the chemical testing was involuntary because defendant merely acquiesced under the circumstances.
¶ 52 Our conclusion that the evidence shows defendant consented does not end our analysis, insofar as the lack of consent was not the only basis for the trial court's ruling granting the motion to suppress. The circuit court also expressed concern that defendant was subject to the urine test after he had submitted to two breath tests, such that the request for a urine test amounted to a "fishing expedition" on the part of the police officers. However, we conclude that the circuit court's decision was against the manifest weight of the evidence where the officers were entitled to request the urine test in addition to the breathalyzer test.
¶ 53 Pursuant to section 11-5/11-501.1 (a), once a police officer has probable cause to arrest a driver for DUI, the officer may then request "a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person's blood." 625 ILCS 5/11-501.1(a) (West 2016). Section 11-501(a) expressly allows up to an additional two tests of urine or other bodily substance even after a blood or breath test. 625 ILCS 5/11-501(a) (West 2016) ("…Up to 2 additional tests of urine or other bodily substance may be administered even after a blood or breath test has been administered…"). Moreover, this statutory provision also expressly provides that the requesting officer "shall designate which of the aforesaid test shall be administered." 625 ILCS 5/11-501(a) (West 2016); People v. Tibbetts, 351 Ill.App.3d 921, 930 (5th Dist. 2004) (finding that, by statute, the police officer has the discretion to administer one or all the tests).
¶ 54 Multiple tests, however, are not always proper. People v. Durden, 2017 IL App (3d) 160409, ¶ 19 (citing People v Klyczek, 162 Ill.App.3d 557, 560 (2nd Dist. 1987)). Additional tests are warranted only if the officer can show that circumstances supported a request for a second test. See Klyczek, 162 Ill.App.3d at 562 (additional request for a blood or urine test was reasonable, despite the fact that the breath test showed a 0.05 reading, where the officer testified that he thought the defendant might be under the influence of drugs based upon his speech and unusual behavior); People v. Krosse, 262 Ill.App.3d 509, 603 (3rd Dist.1994) (additional request for blood test was reasonable in a situation in which the purpose of the second test was not to get a higher blood-alcohol reading, but rather, to determine the presence of drugs); People v. Durden, 2017 IL App (3d) 160409, ¶ 22 (additional test was reasonable when the police officer explained that he requested that the defendant submit to a blood or urine testing because, based upon his interactions with the defendant, the defendant's blood alcohol level of 0.035 "'did not appear to *** be the whole cause of how he had been acting).
¶ 55 In People v. Kirk, 291 Ill.App.3d 610 (4th Dist. 1997), the court was asked to consider a situation in which multiple chemical tests were requested where the officer smelled the odor of alcohol on the defendant but did not have an individualized suspicion that the defendant was driving while under the influence of a controlled substance. In Kirk, the police officer initially requested that the defendant provide a blood and urine test and explained that he did so because it was standard procedure. The court held that, pursuant to section 11-501.1 (a), the police officer was authorized to request both tests, and there is no requirement that an officer have individualized suspicion of drugs or alcohol before requesting multiple chemical tests. Id. at 615. The Kirk court further factually distinguished Klyczek and Krosse on the basis that, in both of those cases, the officers only requested additional testing after a breath test indicated a blood-alcohol level below the legal limit.
¶ 56 Bello testified that he first requested that defendant submit to a breath test and then asked him to submit to a urine test. This procedure was proper where Bello had probable cause to arrest defendant for DUI and cited him, not for being under the influence of alcohol, but for being under the influence of an unknown substance. Bello testified that, upon arriving at the scene, the other officers informed him that they believed that defendant was either under the influence of alcohol or drugs. When administering the HGN test, Bello observed that defendant's eyes were moving in a manner which was consistent with alcohol consumption "in most cases." Bello explained that defendant's eyes were tracking in a manner that was consistent with the consumption of high volumes of alcohol or a stimulant. Bello also testified that defendant was unusually talkative and otherwise showed signs of someone under the influence of drugs. He did not, however, smell alcohol on defendant's breath.
¶ 57 Contrary to the circuit court's concern that the police were merely engaging in a "fishing expedition" in this case, the facts support Bello's request for a urine test. Here, Bello had a reasonable basis to request a urine test, as a means to test for drugs, based the information that he had received from his fellow officers as well as his interaction with defendant during the field sobriety tests. While the circuit court expressed some concern that there was no evidence introduced to show the testing results for the breath test administered to defendant, the request for a urine test was still reasonable. The officer had probable cause to believe that defendant was driving under the influence, and under the facts in this case, the officer's request for a urine test, separate and apart from the results of the breath test for alcohol, was reasonable to determine if he was driving while under the influence of one or more other drugs.
¶ 58 CONCLUSION
¶ 59 We reverse the circuit court's order granting defendant's motion to quash arrest and suppress evidence, and remand for further proceedings.
¶ 60 Reversed and remanded.