No. 2--03--0841

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

Following a jury trial, the defendant Gerald Hirsch was convicted of aggravated driving whileunder the influence (DUI) (625 ILCS 5/11--501(d)(1) (West 2002)). The trial court sentenced thedefendant to a term of three years' imprisonment. The defendant appeals, arguing that (1) there wasno probable cause to arrest him, (2) he was not proved guilty beyond a reasonable doubt, and (3) thetrial court's written order imposing certain fines and costs was not consistent with the trial court'searlier oral pronouncement. We affirm.

On January 30, 2003, the defendant was charged by indictment with two counts of aggravatedDUI (625 ILCS 5/11--501(d)(1)(A) (West 2002)), driving while license suspended (625 ILCS 5/6--303 (West 2002)), and unlawful possession of less than 2.5 grams of cannabis (720 ILCS 550/4(a)(West 2002)). One charge of DUI was based on the defendant having a blood-alcohol concentrationof 0.08 or more and the other was based on the defendant having driven while under the influenceof alcohol.

On June 9, 2003, the trial court conducted a trial. Officer Anthony Row of the East Dubuquepolice department testified that at approximately 12:37 a.m. on September 2, 2002, he stopped thedefendant for failing to signal a turn and for twice crossing a double yellow line. The defendant didnot have a driver's license. The defendant had red, glassy eyes, his speech was slurred, and hismovements were slow. Officer Row smelled alcohol on the defendant's breath and asked thedefendant if he had been drinking. The defendant replied that he had consumed a "six pack" earlierthat evening. The defendant agreed to perform field sobriety tests.

Officer Row administered the horizontal gaze nystagmus (HGN) test. The HGN test requiresa driver to hold his head still and follow a stimulus with his eyes. If the driver has not consumedalcohol, his eyes should roll smoothly, like a marble. However, if the driver is under the influence ofalcohol, his eyes will typically show nystagmus, or involuntary jerking. In Officer Row's opinion, theHGN test was the most accurate of all the field sobriety tests.

Officer Row asked the defendant to hold his head still and follow the tip of his finger. According to Officer Row, the defendant failed the test. Both of the defendant's eyes displayednystagmus at the maximum deviation and at a 45-degree angle. The defendant informed Officer Rowthat he used a number of prescription medicines. Officer Row did not know if the drugs would affectan HGN test result.

The defendant was unable to attempt the one-legged stand or walk-and-turn test because hewas paralyzed from the waist down. The defendant used a wheelchair and his vehicle was equippedwith hand controls.

Officer Row arrested the defendant and transported him to the police station. At the policestation, Officer Row observed the defendant for 20 minutes. During the 20-minute observationperiod, the defendant did not belch, regurgitate, smoke, eat, or cough. Officer Row asked thedefendant a series of questions, including whether the defendant had been consuming alcohol. Thedefendant stated that he was on a boat at the marina from 6 p.m. until 12:30 a.m. He had consumedsix beers during that time. He was on his way to a bar when he was pulled over.

The defendant discussed his disabilities with Officer Row. The defendant stated that he hadbeen crippled in a motorcycle accident. The defendant also stated that he took several prescriptionmedicines to alleviate pain and relax his muscles. The defendant's speech was mumbled and slow.

Officer Row asked the defendant to write the alphabet. The defendant wrote the letters usingboth uppercase and lowercase. The defendant left out the letter "u." The defendant stated that heknew how to read and write. However, the defendant did not inform Officer Row that he wasdyslexic.

Officer Row identified an abstract of the defendant's driving record, which showed that thedefendant's license was suspended effective April 22, 1999, for an indefinite period of time, and wasstill suspended on September 2, 1999, the date of the traffic stop.

Officer Eric Hefel of the East Dubuque police department testified that he gave the defendanta Breathalyzer test. Officer Hefel was licensed by the Illinois State Police to operate the Breathalyzermachine. Before measuring the defendant's blood-alcohol level, Officer Hefel ran a blank test toensure that there was no residual alcohol in the machine. The defendant's blood-alcohol levelmeasured at 0.10. Officer Hefel did not know if the defendant's medications could affect thedefendant's Breathalyzer reading.

The defendant testified that he was paralyzed below the bottom of his chest as a result of amotorcycle accident. The defendant suffered from muscle spasms, bladder spasms, and involuntaryurine and bowel movements. The defendant was on eight different medications. He took Neurontin,to alleviate nerve pain, and potassium and furosemide, to reduce fluid retention. The defendant tookbaclofen, a muscle relaxant, and another muscle relaxant the name of which he could not pronounce. The defendant took Percocet, a pain killer, Metronidazole, an antibiotic to fight infection, and Zoloft,an antidepressant. The defendant excreted waste by digitally stimulating his rectum. Finally, thedefendant testified that he was dyslexic.

The defendant's wife had recently died. On August 30, 2002, he found out how she had died. The defendant was upset. He left his home on September 1, 2002, at approximately 5:45 p.m. tospend time with a friend on his boat. The defendant stayed there from about 6 p.m. to about 12:30a.m. The defendant and his friend "cruised around" and drank "a couple of beers here and there." The defendant estimated that he drank roughly six beers. The defendant ate a chicken pot pie earlierin the evening before leaving for the boat. The defendant departed his friend's boat around 12:20a.m., intending to go to Mulgrew's for a foot-long chili dog.

On cross-examination, the defendant admitted that he knew that his license was suspendedon the night of his arrest. He admitted to drinking about one beer per hour that night and earlymorning. He also admitted that he was not supposed to be drinking alcohol while taking hismedicines. Finally, the defendant explained that he had a muscle spasm that night, which may havecaused him to cross the center line of the road.

Angie Rohmberg, a friend of the defendant, testified that in the early morning hours ofSeptember 2, 2002, an officer from the East Dubuque police department contacted her to pick up thedefendant from the police station. When she arrived at the police station, the defendant did notappear to be under the influence of alcohol. According to Rohmberg, the defendant's speech was notslurred.

Albert Larsen, a forensic toxicologist with the Illinois State Police, testified as a rebuttalwitness. Larsen was able to calculate an earlier blood-alcohol level for a person in good health. Hadthe defendant been in good health, his blood-alcohol level could have been between 0.106 and 0.112at the time of his arrest, 12:37 a.m. However, the defendant was not in good health. The medicinesthe defendant was taking could have affected the rate at which the defendant metabolized alcohol. Particularly, the Percocet could have slowed down the defendant's metabolism. If the Percocet didslow the defendant's metabolism, the defendant's blood-alcohol level at the time of his arrest couldhave been between 0.102 and 0.104. In any event, the defendant's blood-alcohol level would havebeen on the way down when the test was performed at 1:30 a.m.

Following the above evidence, the jury found the defendant guilty of driving with an alcoholconcentration of 0.08 or more, driving while under the influence of alcohol, and driving while licensesuspended. During the trial, the State nol-prossed the possession of cannabis charge. The trial courtentered convictions of aggravated DUI and driving while license suspended.

At the sentencing hearing, the State introduced a copy of the defendant's presentenceinvestigation report that showed that the defendant had eight prior DUI (or operating-under-the-influence) convictions in the state of Iowa. Additionally, the State introduced a judgment thatshowed that the defendant was driving while license suspended in Dubuque, Iowa, two days beforethe defendant's current trial began. The defendant apologized and stated that he would keep workingon his alcohol problem. The trial court sentenced the defendant to three years' imprisonment for theDUI. With regard to the driving-while-license-suspended conviction, the trial court stated that itwould enter "no fine, court costs only *** just a straight conviction, no concurrent time or anythingelse." However, the trial court's written order provided that: "All statutory fines and costs areassessed; including but not limited to: DUI trauma fine of $100 is assessed; arresting agency fine of$100 is assessed."

The defendant's first contention is that there was no probable cause to arrest him. Thedefendant has waived this issue. A defendant must raise any challenges regarding the propriety ofhis arrest in a motion to suppress. See People v. Hattery, 109 Ill. 2d 449, 466 (1985); People v.Cleeson, 177 Ill. App. 3d 103, 115 (1988). In such a motion, the initial burden of proof is on thedefendant. Hattery, 109 Ill. 2d at 466; Cleeson, 177 Ill. App. 3d at 115. When the defendant doesnot meet his burden, the arrest is considered valid. Hattery, 109 Ill. 2d at 466; Cleeson, 177 Ill. App.3d at 115.

The defendant's next contention is that he was not convicted of aggravated DUI beyond areasonable doubt. The defendant argues that the State failed to prove that he drove with a blood-alcohol level of 0.08 or greater. He argues that the eight medications he used affected the results ofthe Breathalyzer test. Additionally, he argues that the State failed to prove that he drove while underthe influence of alcohol. The defendant argues that his actions on the night in question wereattributable to his physical condition and his medications.

When considering a challenge to the sufficiency of the evidence, it is not the function of thiscourt to retry the defendant. People v. Steidl, 142 Ill. 2d 204, 226 (1991). "[T]he relevant questionis whether, after viewing the evidence in the light most favorable to the prosecution, any rational trierof fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasisomitted.) People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson v. Virginia, 443 U.S. 307,319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). The determination of the weight to begiven to the witnesses' testimony, their credibility, and the reasonable inferences to be drawn fromthe evidence are the responsibility of the fact finder. People v. Byron, 164 Ill. 2d 279, 299 (1995). A reviewing court will not reverse a conviction unless the evidence is so improbable as to warranta reasonable doubt of the defendant's guilt. People v. Beck, 295 Ill. App. 3d 1050, 1058 (1998).

Sections 11--501(a)(1) and (a)(2) of the Illinois Vehicle Code provide that a person commitsDUI when he drives any vehicle within this state while "the alcohol concentration in the person'sblood or breath is 0.08 or more" or the person is "under the influence of alcohol." 625 ILCS 5/11--501(a)(1), (a)(2) (West 2002). Section 11--501(d)(1) of the Illinois Vehicle Code provides that aperson commits aggravated DUI when the person commits an act of DUI for the third or subsequenttime. 625 ILCS 5/11--501(d)(1) (West 2002).

We believe that the State presented sufficient evidence to convince a rational trier of fact thatthe defendant committed the offense of aggravated DUI, based on the defendant having driven withan alcohol concentration in his blood of 0.08 or more and this being his third or subsequent offenseof DUI. The defendant was stopped at 12:37 a.m. on September 2, 2002, after having failed to signala turn and after twice crossing the double yellow line. Officer Row smelled alcohol on the defendant'sbreath. The defendant admitted to drinking alcohol that evening. The defendant failed the HGN test. Officer Row arrested the defendant and took him to the police station.

At the police station Officer Row observed the defendant for 20 minutes, to ensure that noresidual alcohol remained in his mouth. Approximately 45 minutes after the defendant was arrested,Officer Hefel administered a Breathalyzer test to the defendant. He first ran a blank test that showedthe machine was clear of alcohol. The defendant's blood-alcohol concentration measured 0.10. Forensic toxicologist Larsen testified that despite the many medications the defendant was taking, thedefendant's blood-alcohol level would have been on the way down when he was administered the test. Larson projected, taking into account the defendant's medicine, that the defendant had a blood-alcohol level between 0.102 and 0.104 at the time of his arrest. Considering this evidence, areasonable trier of fact could certainly conclude that when the defendant was stopped by Officer Row,he was driving with an alcohol concentration of 0.08 or higher.

We are unpersuaded by the defendant's argument that his medications rendered theBreathalyzer test inaccurate. The defendant relies on People v. Miller, 166 Ill. App. 3d 155 (1988). In that case, the defendant caused an automobile accident after driving in the wrong lane. Miller, 166Ill. App. 3d at 156. The State introduced a hospital blood test to show that the defendant's blood-alcohol level was above the legal limit. Miller, 166 Ill. App. 3d at 156. The defendant was convictedof DUI. Miller, 166 Ill. App. 3d at 156. She appealed, arguing that the blood test was not accuratebecause the hospital had administered her medicine shortly before taking her blood. Miller, 166 Ill.App. 3d at 158. On appeal, the Appellate Court, Third District, reversed her conviction, holding thatwhen a defendant is administered medicine shortly before a blood test, the State is obligated to provethat the prescribed treatment did not affect the accuracy of the test. Miller, 166 Ill. App. 3d at 158.

The Appellate Court, First District, has recently departed from the holding in Miller. InPeople v. Bishop, No. 01--03--0350, slip op. at 2 (December 13, 2004), the defendant was involvedin an automobile accident. The defendant's conviction was based upon a hospital urine sample thatshowed cocaine and PCP in his system. Bishop, slip op. at 2. The defendant appealed, arguing thatmedicine administered by the hospital rendered his urine test inaccurate. Bishop, slip op. at 2. Relyingon People v. Winfield, 30 Ill. App. 3d 668, 672 (1975), the Bishop court concluded that the State isnot required to prove that prescribed medications did not affect the accuracy of test results, unlessthere is some evidence in the record to the contrary. Bishop, slip op. at 13. Specifically, the Bishopcourt stated:

"To the extent that Miller goes beyond the holding in Winfield and suggests that the Statemust prove that any prescribed medication did not affect the test results as an element of itscase, we disagree with such a requirement and we note that Miller cites no authority tosupport its conclusion. Here, there was simply no evidence that the medications given todefendant had any affect on the results of his urine sample, and in the absence of suchevidence, the State was not required to prove that results were not affected by themedications." Bishop, slip op. at 13-14.

We find the reasoning in Bishop persuasive. Like in Bishop, there was no evidence introducedin this case that the various medications the defendant used interfered with the accuracy of theBreathalyzer test. The evidence merely showed that the defendant's medications could have affectedhis rate of metabolism. In any event, the defendant's blood-alcohol level was on the way down whenthe Breathalyzer test showed him at a level of 0.10. Absent evidence that the defendant's medicationsrendered the test results inaccurate, the accuracy of the test is presumed. Bishop, slip op. at 14. Insum, the defendant was properly convicted of aggravated DUI.

The defendant's final contention is that the trial court's written order imposing a DUI traumafine of $100 and an arresting agency fine of $100 is contrary with the trial court's earlier oralpronouncement that it would not impose any fines. We disagree.

Clearly, when the trial court stated that it was entering a "conviction only" and would notimpose any fines, it was referring to the driving-while-license-suspended charge. The fees of whichthe defendant complains were imposed pursuant to the defendant's DUI charge. These nonpunitivefees were mandatory. Section 11--501(j) of the Illinois Vehicle Code and section 5--9--1(c--5) of theUnified Code of Corrections provide that a defendant found guilty of DUI "shall" pay an arrestingagency fine of $100 and a trauma fine of $100. See 625 ILCS 5/11--501(j) (West 2002); 730 ILCS5/5--9--1(c--5) (West 2002). Although trial courts have discretion to fashion sentences, thatdiscretion is limited by the sentencing statutes. People v. Arna, 168 Ill. 2d 107, 113 (1995). Here,the trial court properly imposed the mandatory fines.

For the foregoing reasons, the judgment of the circuit court of Jo Daviess County is affirmed.

Affirmed.

O'MALLEY, P.J., and HUTCHINSON, J., concur.