People v. Lindmark

SUPREME COURT CASES

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People v. Lindmark

State: Illinois

Court: 4th District Appellate

Docket No: 4-07-0535 Rel

Case Date: 04/03/2008

Preview:NO. 4-07-0535 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIKA M. LINDMARK, Defendant-Appellant. ) ) ) ) ) ) ) ) )

Filed 4/3/08

Appeal from Circuit Court of Champaign County No. 06CF483 Honorable Jeffrey Ford, Richard P. Klaus, Judges Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court: 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 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). later vacated count II. The trial court

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. I. BACKGROUND 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) (providing that driving under the influence while one's license is suspended for, among other reasons, a violation of section 11-501.1 of the Vehicle Code, constitutes a Class 4 felony). 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. A. Pretrial Motions 1. Motion To Suppress the Breath Test 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. - 2 -

At the January 17, 2007, hearing, defendant testified that she suffered from acid reflux. during the observation period. Defendant claimed she burped

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. motion to suppress the breath test. 2. Motion To Suppress Statements 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 The court denied the

that the officer failed to make an adequate determination that defendant understood her Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (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. - 3 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 Defendant appeared to

answer or not answer the questions. 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

the videotape is not contained in the record on appeal. following exchange took place during the hearing: "Q. [(Defense counsel)]: All right. you ever say to her-THE COURT: You may resume your seat, Officer. Q. --are you willing to waive those rights and talk to me? - 4 Did

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. video. I said what was on the

I don't remember every word I said on

the video." The trial court denied the motion to suppress statements. 3. The Horizontal Gaze Nystagmus Test 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, 681 N.E.2d 1073 (1997). 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 - 5 In

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. Attorney responded, "No, Your Honor." The assistant State's

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: "Well, I wouldn't necessarily have procedurally couched it that way, [defense counsel], but the State will be barred from eliciting or introducing into evidence any evidence regarding the HGN test. to suppress the HGN test is moot. The motion The fifth

motion in limine is granted in part and denied in part. The law does not require me

to--or require the State to have a Frye hearing. The State can seek a Frye hearing. I

The State does not seek a Frye hearing. will not order a Frye hearing.

However, I

will grant that portion of the fifth motion in limine which seeks to bar an HGN test, because absent a Frye hearing, there can be no entry into evidence of an HGN test. right, that resolves those motions." In response to the trial court, defense counsel argued - 6 All

the HGN test remained an issue because it was the basis for the officer's probable cause for arrest. following: "MR. ROBERTS [(Defense counsel)]: Not quite, because the HGN test was the basis for the officer's probable cause for arrest. THE COURT: Well that resolves those motions. Then we'll address the issue of The transcript contains the

whether or not there was probable cause for the arrest in the other motions. All right.

(Proceedings conducted which are not transcribed herein.)" 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 - 7 -

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 The

motions be filed within 35 days of the discovery order.

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. court observed that defendant's motion "presupposes that the [HGN] test was the only basis for probable cause, which ignores the substantial amount of other material." The court found The

defense counsel had ample opportunity to address the matter in pretrial, and that the late-filed motion violated the court's standing order. stricken. 4. Bill of Particulars On January 9, 2007, four days after the State charged defendant with count II, defendant filed a motion for a bill of particulars. Defendant sought particulars regarding the offenses The court ordered the motion to suppress

defendant was alleged to have committed, including the date, - 8 -

time, location, persons present who witnessed the alleged offenses, and the length of time the alleged conduct continued. At the hearing on pretrial motions, the trial court noted that the arraignment occurred on June 1, 2006, and the State provided defendant with discovery on June 6, 2006. The

court asked how the January 9, 2007, filing could be considered filed within a reasonable period of time after the arraignment. The transcript of the hearing does not contain defense counsel's response. The court denied the motion for a bill of particulars. B. The Trial On January 18, 2007, the jury trial commenced. Sergeant Chacon testified he had been employed with the Urbana police department for nearly 13 years. He had received

specialized training on how to investigate DUI cases and had been involved in 100 to 150 DUI investigations. On March 1, 2006, at approximately 12:55 a.m., Sergeant Chacon saw a black, four-door Saab turn left on University Avenue, a well-lit intersection. Sergeant Chacon saw the vehicle

strike the raised median of the roadway with all four tires. Sergeant Chacon effectuated a traffic stop. identified defendant as the driver of the vehicle. He

Defendant was

wearing a lot of brightly colored beads around her neck. Sergeant Chacon testified the stop occurred around Mardi Gras and a lot of bars gave out beads. Sergeant Chacon further testified

that an odor of alcohol emitted from the open driver's window. Defendant's eyes were watery and red, and her speech was "rather - 9 -

slowed and slight[ly] slurred." alcoholic drinks that evening.

Defendant told him she had three

Sergeant Chacon asked defendant for her driver's license and proof of insurance. He returned to his car to

confirm defendant's driver's license status and check for outstanding warrants. In doing so, Sergeant Chacon learned

defendant's license was suspended. The trial court admitted, without objection, defendant's driver's license abstract from the Secretary of State (exhibit No. 4). Sergeant Chacon testified that the abstract

reflected that on March 1, 2006, the status of defendant's driver's license was "suspended." Exhibit No. 4 is not contained

in the record on appeal, although a blurry copy of the abstract is contained in the record as part of the State's discovery. Sergeant Chacon called for an additional unit. Chris Darr arrived. Sergeant Chacon asked Officer Darr to Officer

videotape the ensuing investigation. Sergeant Chacon asked defendant to perform certain preexit tests that can be performed while sitting in the vehicle. According to Sergeant Chacon, preexit tests are good indicators of whether a person is impaired. Sergeant Chacon described the

various preexit tests and defendant's performance on those tests. The three tests included the alphabet test (reciting the alphabet from a specific starting point to a specific ending point), the countdown test (counting backward from a particular number to another), and the finger-count test (use the thumb to touch the - 10 -

tip of each finger in a sequence while counting out loud).

Based

on defendant's performance on the three pre-exit tests, Sergeant Chacon felt further investigation warranted and asked defendant to step out of her vehicle. Sergeant Chacon testified the outside temperature was in the mid-40s. Defendant was wearing a "pretty substantial"

leather coat and appeared to be dressed warmly for the weather. Sergeant Chacon testified about the field-sobriety tests he asked defendant to perform, including the one-leggedstand test and the walk-and-turn test. Sergeant Chacon identified People's exhibit No. 3 as a copy of the videotape of the field testing. admit the videotape into evidence. The State moved to

Defense counsel did not

object to admission of the videotape or publication of the tape to the jury. A portion of the videotape was played for the jury.

The videotape is not contained in the record on appeal. Sergeant Chacon testified that based on the total circumstances and information gathered, including defendant's driving behavior, beads, demeanor, speech pattern, the odor of alcohol, her acknowledgment that she had been drinking, and defendant's performance on pre-exit and field tasks, he believed defendant was impaired by alcohol. defendant under arrest. After defendant's arrest, Officer Darr transported her to the Champaign County satellite jail. joined her there. - 11 Sergeant Chacon later Sergeant Chacon placed

Defendant ultimately took a breath test.

Sergeant

Chacon testified he was certified to operate the Breathalyzer and conduct the breath test, the breath test was a model approved by the Department of State Police, and he followed the standards for administering it. Sergeant Chacon identified, and the trial

court admitted, (1) the breath-instrument log that showed defendant's result and the certification of accuracy performed on the machine and (2) the document showing defendant's breath-test result. Sergeant Chacon observed defendant for 20 minutes to allow any alcohol that might still be in her mouth or upper digestive tract to either be absorbed, metabolized, or dissipated so that the result would only reflect the alcohol from defendant's breath. During the observation period, defendant did not

eat, drink, smoke, or put a foreign substance in her mouth. Defendant did not vomit during the observation period. After the observation period, defendant performed the breath test. The results indicated a BAC of 0.167. The State

sought and received permission to play the remainder of the videotape, apparently showing what occurred before and during the breath test. On cross-examination, defense counsel played portions of defendant's exhibit No. 1. the record on appeal. That exhibit is not contained in

Based on the comments made at trial,

defendant's exhibit No. 1 was apparently a digital video disc (DVD) containing excerpts of the video recording of defendant's - 12 -

pre-exit and field-sobriety tests. After watching a portion of the DVD, Sergeant Chacon agreed defendant performed some aspects of the tests correctly. Defense counsel questioned Sergeant Chacon about a comment he made on the tape about not being "totally convinced." Sergeant

Chacon testified he was not convinced at that point that defendant was not impaired by alcohol. Defense counsel also noted

that after defendant finished walking for one of the tests, Sergeant Chacon said, "[V]ery good." Defense counsel asked

whether Sergeant Chacon thought defendant's performance on the test was "very good." Sergeant Chacon responded, "That's not

what I meant by very good, sir." Sergeant Chacon admitted defendant exhibited signs of being cold. warm herself. She was still rubbing herself at the jail trying to Sergeant Chacon agreed defendant was never combatSergeant Chacon testified the

ive and was always cooperative.

behavior of people under the influence runs the gamut of polite to combative. Sergeant Chacon described defendant's speech as

showing slight to moderate slurring. Defense counsel questioned Sergeant Chacon about the breath test. Sergeant Chacon testified the purpose of the 20-

minute observation period was to allow any alcohol that might still be in the mouth to evaporate or be absorbed so that it does not interfere with the test reading. Defense counsel asked

whether the observation included observing whether the subject regurgitated. Sergeant Chacon stated, "Well, if you mean vomit- 13 -

ing, yes."

Sergeant Chacon agreed that by vomiting, he meant Sergeant Chacon also

material is expelled out of the mouth.

agreed that the reason he observes for vomiting is because if material comes up in the mouth from the stomach and has alcohol in it, that would affect the test result. Defense counsel asked whether, once the material got into the mouth, it mattered if it was vomited out or swallowed. The State objected on the basis that the line of questioning was irrelevant to what the jury would be asked to determine at the end of the trial. The court sustained the objection.

Defense counsel questioned Sergeant Chacon about the observation period, apparently while that portion of the videotape was playing. Defense counsel asked Sergeant Chacon what he At one

was doing at various times during the observation period.

point, in response to defense counsel's question, Sergeant Chacon stated that the videotape showed defendant put her face in her hands. Defense counsel asked whether anything was coming up from The After the

defendant's stomach when she put her face in her hands. State objected, and the court sustained the objection.

completion of Sergeant Chacon's testimony, the State rested. On January 19, 2007, the trial resumed. That same day,

the State filed a motion in limine seeking an order barring defense counsel from inquiring into or referring to matters relating to defendant's alleged acid-reflux symptoms, the effect such symptoms may have on the breath test, the alleged failure of Sergeant Chacon to properly observe defendant prior to the breath - 14 -

test, or the effect such alleged failure may have had upon the breath test results. The State argued that whether Sergeant Chacon conducted a proper observation was an issue of foundation as to the admissibility of the breath test and was previously adjudicated by the court. The State also argued that defendant's alleged acid

reflux was not relevant to any issue the jury would be asked to decide. Finally, the State argued that defendant did not dis-

close any expert witnesses, and the issue of whether acid reflex would affect the breath test was a subject that required expert testimony. At the hearing on the motion, defense counsel argued that admissibility and weight were separate questions. Defense

counsel agreed the breath test was admissible because the State met the foundation requirements: the machine had been tested at appropriate times before and after defendant's test, the machine was certified, the officer did a blank check before defendant's test, the officer was in the room with defendant for 20 minutes before the test, defendant blew in the machine, and a reading was produced. Defense counsel argued, however, that the weight to

give the test was for the jury, and the jury did not have to find the testing credible. The trial court found that defense counsel was attempting to show that defendant had acid-reflux syndrome, suffered from it in the observation room, and that acid reflux could affect the breath-test results. The court asked defense counsel

- 15 -

how defendant would present competent evidence on that subject. Defense counsel argued Sergeant Chacon testified about the importance of not having stomach contents enter the mouth. Defense counsel further argued that whether Sergeant Chacon's observation was adequate to determine whether anything came up out of defendant's stomach was an issue of credibility for the jury. The trial court barred defendant from any further refer-

ence to acid-reflux disease or the efficacy of the observation period. Defense counsel then moved for a directed verdict on both counts, arguing the State presented no evidence that defendant knew her license was suspended. Therefore, defense counsel

argued, the State failed to prove the requisite mental state. The trial court denied the motion. The defense rested without presenting evidence. Defense counsel sought clarification on the trial court's earlier ruling barring defendant from any reference to acid-reflux disease or the efficacy of the observation period. Defense

counsel inquired whether he could (1) tell the jury that it determines the weight to give the evidence, (2) talk to the jury about the credibility of the evidence, (3) talk to the jury about the officer's testimony regarding the purpose of the observation period, and (4) comment on what was in evidence regarding The court confirmed that

factors that interfere with testing. such comments were permissible.

The court further confirmed that

defense counsel could not comment on whether Sergeant Chacon was - 16 -

doing an adequate job of making sure that factors that interfere with testing did not occur. The jury-instruction conference, closing argument, and return of the jury verdict are not contained in the transcript in the record on appeal. The record suggests that defense counsel

sought an instruction that the State had to prove defendant had notice that her license was suspended. ently rejected that instruction. The January 19, 2007, docket entry reflects the jury found defendant guilty on both counts. C. Postrial and Sentencing Motions On February 20, 2007, defendant filed a motion for a new trial. Among other things, defendant argued the trial court The trial court appar-

erred by (1) denying the fifth motion in limine; (2) denying the motion to suppress statements; (3) denying the motion to suppress the HGN test and not allow a Frye hearing; (4) denying the request for a bill of particulars; (5) denying the motion to suppress the breath test; (6) granting the State's motion to strike defendant's motion to suppress for lack of probable cause, denying defendant a hearing on the motion to suppress, and not granting the motion to suppress; (7) failing to instruct the jury that the State had to prove defendant had notice that her license was suspended; (8) allowing the State's motion in limine with respect to closing argument and limiting defendant's closing argument by (a) restricting comment on the quality of the officer's observation of the defendant, and (b) limiting comment on - 17 -

what the Breathalyzer was measuring if any stomach contents were brought up into defendant's mouth during the 20-minute observation period. On that same date, defendant also filed motions to vacate her convictions on count I and count II. Defendant

asserted that count II must be vacated because both convictions were based on the same conduct. Defendant asserted that count I

should be vacated because the jury made no finding that defendant's license was suspended for a violation of section 11-501.1 of the Vehicle Code (statutory summary suspension). On March 28, 2007, the trial court held a hearing on defendant's posttrial motions and the sentencing. The record on The March

appeal does not contain a transcript of that hearing.

28, 2007, docket entry reflects that the court denied the motion to vacate count I but granted the motion to vacate count II. The

court sentenced defendant to incarceration in the county jail for 180 days plus 30 months' probation on count I. On April 3, 2007, defendant filed a motion to modify her sentence. Defendant requested the trial court modify her

sentence to provide that the period of imprisonment be served in the Comprehensive Home-Incarceration Program (CHIP). On April 9, 2007, the trial court held a hearing on defendant's motion to modify sentence. At the hearing, Rolla

Dolph, the courtroom deputy assigned to the courtroom when defendant was sentenced, testified. Dolph testified he saw

defendant give her counsel some keys and heard her tell counsel - 18 -

one of the keys belonged to the car in the lot that had to be moved. Defense counsel questioned the trial court about whether he could continue to act as defendant's counsel because he would have to testify to rebut Dolph's testimony. The court

believed counsel could testify without being disqualified so long as he was not testifying against his client's interests. The

court agreed to accept counsel's representations or counsel could testify under oath and be subject to cross-examination. Defense counsel informed the court that he drove defendant to court for sentencing. Defendant asked counsel to

give her keys to a man named "Sam," and that Sam would take care of her animals. car. Defendant said nothing to counsel about moving a

The trial judge took the matter under advisement and

indicated a ruling would be made within 24 hours. The record does not contain a ruling or docket entry on defendant's motion to modify sentence. However, on April 20,

2007, defendant filed a motion to vacate an April 11, 2007, order denying defendant's motion to modify sentence and also asked the trial judge, Richard Klaus, to recuse himself and refer the case for reassignment. In particular, defendant noted that once

Dolph's testimony was rebutted by defense counsel, Judge Klaus had to judge the credibility of someone who worked under his direct supervision. Defendant also argued she was denied effec-

tive assistance of counsel when defense counsel could not argue for his own credibility. - 19 -

On April 30, 2007, defendant filed a motion to reconsider sentence. The motion asserted the sentence was excessive.

This motion was arguably untimely because it was filed more than 30 days after sentencing. The record does not contain any

indication that the parties or the trial court ever mentioned the late filing. On May 16, 2007, Judge Thomas Difanis held a hearing on defendant's motion to vacate the order and for recusal. Only a

portion of the hearing is contained in the record on appeal. Judge Difanis granted the motion for recusal and assigned another judge to hear the motion to reconsider sentence. On May 24, 2007, the newly assigned judge, Judge Jeffrey Ford, held a hearing on defendant's motion to reconsider sentence. Defense counsel argued the grounds raised in both the

motion to modify sentence and the motion to reconsider sentence. The court denied the motions. This appeal followed. II. ANALYSIS A. This Court Has Jurisdiction Over the Appeal Before addressing the merits, this court must first ensure that it has jurisdiction over the appeal. In its appellee

brief, the State notes that while the April 3, 2007, postsentencing motion was timely, the April 30, 2007, motion to reconsider was not. The State further notes it is debatable

whether defendant's April 20, 2007, motion to vacate the April 11, 2007, order denying the motion to modify sentence was a - 20 -

motion directed against the March 28, 2007, judgment.

Therefore,

according to the State, it is unclear whether the motion to vacate extended defendant's time to file a notice of appeal. However, the State argues that under the revestment doctrine, an argument can be made that the parties revested the trial court with jurisdiction over the April 30, 2007, motion to reconsider. Pursuant to Supreme Court Rule 606(b), a defendant must file a notice of appeal within 30 days after entry of judgment or, if a postjudgment motion is timely filed, within 30 days of the order disposing of that motion. 210 Ill. 2d R. 606(b).

Moreover, "[a] trial court loses jurisdiction to vacate or modify its judgment 30 days after entry of the judgment unless a timely postjudgment motion is filed." People v. Minniti, 373 Ill. App.

3d 55, 65, 867 N.E.2d 1237, 1246 (2007). In this case, the trial court entered the final judgment on March 28, 2007, when it sentenced defendant. Therefore,

any postjudgment motion had to be filed by April 27, 2007. Defendant filed a timely postjudgment motion on April 9, 2007, and an untimely motion on April 30, 2007. Based on defendant's April 20, 2007, motion, the trial court apparently denied the April 9, 2007, motion to modify sentence on April 11, 2007. However, a reasonable conclusion can

be drawn from the record that the April 11, 2007, order denying the April 9, 2007, motion to modify sentence was vacated when Judge Difanis granted defendant's April 20, 2007, motion to recuse Judge Klaus. By vacating the April 11, 2007, order, the - 21 -

timely April 9, 2007, motion to modify remained pending.

In

fact, defense counsel, without objection, argued at the May 24, 2007, hearing on the postjudgment motions the issues raised in both the timely and untimely postjudgment motions. Because the April 9, 2007, motion remained pending, the May 24, 2007, order denying the untimely April 30, 2007, motion to reconsider can be construed as also denying the April 9, 2007, pending motion to modify. Consequently, the notice of appeal

filed within 30 days of the May 24, 2007, order was timely, and this court has jurisdiction. Alternatively, this court finds the parties revested the trial court with jurisdiction to consider the untimely motion to reconsider. Under the revestment doctrine, the parties can

revest a court with jurisdiction so long as (1) the court has general jurisdiction over the matter and personal and subjectmatter jurisdiction over the particular cause; (2) the parties actively participate without objection; and (3) the proceedings are inconsistent with the merits of the prior judgment. 373 Ill. App. 3d at 65, 867 N.E.2d at 1246. Minniti,

If a trial court is

revested with jurisdiction, then a notice of appeal filed within 30 days after a ruling on the untimely postjudgment motion vests the appellate court with jurisdiction. at 67, 867 N.E.2d at 1248. Those factors are present here. The trial court had Minniti, 373 Ill. App. 3d

general jurisdiction over the matter, as well as personal and subject-matter jurisdiction over the case. - 22 The parties actively

participated in the hearing on the motion to reconsider without objection. Finally, the motion to reconsider hearing was inconThat is, by participating and

sistent with the prior judgment.

not objecting to the hearing on the motion to reconsider the sentence, the prosecutor essentially acknowledged that the prior sentencing judgment should be revisited. See Minniti, 373 Ill.

App. 3d at 67, 867 N.E.2d at 1248, citing People v. Gargani, 371 Ill. App. 3d 729, 732, 863 N.E.2d 762, 766 (2007). Therefore,

the parties revested the trial court with jurisdiction, and this court has jurisdiction over the appeal. B. State Not Required To Prove Defendant Knew Her License Was Suspended Defendant argues, citing Morissette v. United States, 342 U.S. 246, 96 L. Ed. 288, 72 S. Ct. 240 (1952), that a culpable mental state is a necessary element of a felony or any offense with a significant penalty. As such, defendant argues,

the State was required to prove that defendant had knowledge that her license was suspended when she drove on March 1, 2006. disagree. In Morissette, the defendant was charged with a federal crime, theft from government land. 96 L. Ed. at 292, 72 S. Ct. at 242. not provide a requisite mental state. Morissette, 342 U.S. at 248, The statute in question did The United States Supreme The Court found that We

Court reversed the defendant's conviction.

the federal law merely adopted a crime defined at common law which, at common law, required a mental state. Morissette, 342 There-

U.S. at 260-61, 96 L. Ed. at 299, 72 S. Ct. at 248-49. - 23 -

fore, the Court held that the absence of a mental state from the statute would not be construed as eliminating the mental state required. Morissette, 342 U.S. at 261-62, 96 L. Ed. at 299-300,

72 S. Ct. at 249. Nothing in the Morissette decision can be construed as requiring a mental state in all felonies. In fact,

the Morissette Court specifically declined to "delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not." Morissette, 342 U.S. at 260, 96 L. Ed. at 299, 72 S.

Ct. at 248; see also Staples v. United States, 511 U.S. 600, 61819, 128 L. Ed. 2d 608, 624, 114 S. Ct. 1793, 1804 (1994) (refusing to adopt a rule that the public-welfare-offense rationale should not be used to interpret any statute defining a felony offense as dispensing of a mens rea requirement unless Congress specifically provides that the offense is a strict-liability offense; but noting that where dispensing with a mens rea would require the defendant to have knowledge only of traditionally lawful conduct and where a penalty is severe, such factors suggest Congress does not intend to eliminate a mens rea requirement). Whether an offense requires proof of a mental state depends on whether the offense is a misdemeanor or whether the legislature clearly indicated the intent to impose absolute liability for the conduct. 720 ILCS 5/4-9 (West 2006). Specifi-

cally, section 4-9 of the Criminal Code of 1961 provides as follows: - 24 -

"A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in [s]ections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described." 720 ILCS 5/4-9 (West 2006).

"Section 4-9 applies to all criminal penalty provisions, including those outside the Criminal Code of 1961." People v. Molnar,

222 Ill. 2d 495, 519, 857 N.E.2d 209, 223 (2006). 1. Standard of Review Because the issue defendant raises requires an interpretation of the relevant statutes, this court reviews the issue de novo. People v. Dunn, 365 Ill. App. 3d 292, 294, 849 N.E.2d When construing a statute, the primary consid-

148, 149 (2006).

eration is to determine and give effect to the legislature's intent. People v. Skillom, 361 Ill. App. 3d 901, 906, 838 N.E.2d A court must consider the statute in its

117, 122 (2005). entirety. 644 (2002).

People v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, "The most reliable indicator of legislative intent

is the language of the statute, which, if plain and unambiguous, must be read without exception, limitation, or other condition." Davis, 199 Ill. 2d at 135, 766 N.E.2d at 644. - 25 A statute will not

be interpreted as imposing absolute liability without a clear indication the legislature intended absolute liability or unless an important public policy favors absolute liability. 222 Ill. 2d at 519, 857 N.E.2d at 223. 2. Plain Language Indicates The Legislature Intended No Mental State for DUI With a Suspended License In this case, the State charged defendant with violating section 11-501(a)(1) of the Vehicle Code (625 ILCS 5/11501(a)(1) (West 2006)), which provides that a person shall not drive while under the influence of alcohol. offense is a misdemeanor. 2006). Generally, such Molnar,

See 625 ILCS 5/11-501(b-2) (West

In this case, however, the offense was elevated to a

Class 4 felony because defendant's license was suspended at the time. Section 11-501(c-1)(1) of the Vehicle Code provides as

follows: "A person who violates subsection (a) during a period in which his or her driving privileges are revoked or suspended, where the revocation or suspension was for a violation of subsection (a), [s]ection 11-501.1, paragraph (b) of Section 11-401, or for reckless homicide as defined in [s]ection 9-3 of the Criminal Code of 1961 is guilty of a Class 4 felony." 625 ILCS 5/11-501(c-1)(1) (West 2006). The statute does not contain a mental state. This fact

alone does not per se indicate that no mental state is required. - 26 -

Molnar, 222 Ill. 2d at 519, 857 N.E.2d at 223 (finding that section 10 of the Sex Offender Registration Act creates a absolute liability offense). However, given the statute's plain

language, the purpose behind the legislation, and the existing case law, this court concludes that section 11-501(c-1)(1) does not require proof of a mental state. The purpose of the DUI statute is to protect people who walk and drive on the public way. People v. Avery, 277 Ill. App. In People v. Ziltz, 98

3d 824, 830, 661 N.E.2d 361, 365 (1995).

Ill. 2d 38, 42, 455 N.E.2d 70, 72 (1983), the Illinois Supreme Court held that section 11-501(a)(1) of the Vehicle Code clearly imposed strict liability and did not require a mental state. court found that "[t]he State has a rational basis for curbing the incidence of drunk driving." N.E.2d at 72. The question here is whether the aggravating factor that elevated the offense from a misdemeanor to a Class 4 felony is evidence of the legislature's intent to require a mental state. In a similar case, Avery, 277 Ill. App. 3d 824, 661 Ziltz, 98 Ill. 2d at 43, 455 The

N.E.2d 361, the court concluded that a similar enhancement did not indicate such an intent. In Avery, the defendant was charged with DUI. The

offense was elevated from a misdemeanor offense to a felony because the defendant was involved in a motor vehicle accident that resulted in great bodily harm. 828, 661 N.E.2d at 364. Avery, 277 Ill. App. 3d at

In determining whether the trial court - 27 -

properly refused to entertain an insanity defense, the Avery court concluded that the addition of the aggravating factors-involvement in a motor-vehicle accident--did not signal an intent by the legislature to add a mental state to the offense. Avery,

277 Ill. App. 3d at 830, 661 N.E.2d at 365. The court concluded that the essential crime remained the same, statute intended to remedy remained the same. App. 3d at 830, 661 N.E.2d at 365. Similarly, the factor in this case that caused the offense to elevate from a misdemeanor into a Class 4 felony--DWS --does not change the essential crime. Moreover, the evil the and the evil the Avery, 277 Ill.

statute intended to remedy remained the same. In addition, a conviction for DWS does not require proof of the defendant's receipt of notice or knowledge of the suspension. See People v. Johnson, 170 Ill. App. 3d 828, 832, Because no mental state is required

525 N.E.2d 546, 550 (1988).

for DWS or DUI, it follows that no mental state is required for DUI with the aggravating factor that the driver's driving privileges were suspended. The State was not required to prove that

defendant knew her license was suspended. C. Failure To Instruct Jury To Find that Defendant's License Was Suspended Due to Her Prior Violation of Section 11-501.1 Was Harmless Error Defendant next argues that the jury was not instructed to find that defendant's license was suspended due to a statutory summary suspension. The State concedes that under Apprendi v.

New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. - 28 -

2348, 2362-63 (2000), any fact other than a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The State further concedes that a statutory

summary suspension is not a conviction and that the grounds for defendant's suspension increased the penalty beyond the prescribed statutory maximum. See People v. Dvorak, 276 Ill. App.

3d 544, 552, 658 N.E.2d 869, 876-77 (1995) (a statutory summary suspension proceeding is civil in nature and its purpose is not to convict the defendant of an offense). Therefore, the State

agrees with defendant that the issue should have been submitted to the jury. The State argues, however, that a jury instruction that omits an element of the offense is an error subject to the harmless-error analysis. The State further argues that the error

here was harmless because the evidence concerning the grounds for defendant's license suspension was uncontested and overwhelming. We agree. A jury instruction that omits an element of an offense is an error subject to harmless-error review. Neder v. United

States, 527 U.S. 1, 15, 144 L. Ed. 2d 35, 51, 119 S. Ct. 1827, 1837 (1999); People v. Thurow, 203 Ill. 2d 352, 368, 786 N.E.2d 1019, 1028 (2003) (finding that the failure to instruct the jury as to the element of the crime that the victim was a member of defendant's household was harmless error). Omitting an element

of the offense from a jury instruction is harmless if the review- 29 -

ing court determines, beyond a reasonable doubt, that the error did not contribute to the verdict. Ed. 2d at 51, 199 S. Ct. at 1837. Neder, 527 U.S. at 15, 144 L. This can be shown where the

omitted element was uncontested and supported by overwhelming evidence. Thurow, 203 Ill. 2d at 369, 786 N.E.2d at 1028. Here, overwhelming evidence supports the conclusion that defendant's license was suspended due to a statutory summary suspension. The record contains an undated stipulation signed by However, the record is The appellant

counsel for defendant and the State.

incomplete regarding the use of this stipulation.

has the burden to present a sufficient record and doubts are resolved against the appellant. See People v. Kamide, 254 Ill. App. 3d 67, 74, 626 N.E.2d 337, 342 (1993) (holding that without a sufficient record to reflect the evidence on the missing element of the charge, the court was unable to determine whether overwhelming evidence existed and therefore resolved those doubts against the defendant). with an adequate record. Defendant did not provide this court Therefore, this court resolves any

doubts against defendant and concludes that the stipulation was used at trial. The stipulation provided that defendant "received a traffic citation for DUI in DuPage County on January 8, 2006." The stipulation also provided that defendant's "statutory summary suspension based upon the DUI in DuPage County began on February 23, 2006." This, along with the other evidence admitted at

trial, demonstrates that on March 1, 2006 (five days after the - 30 -

suspension began), defendant was DWS pursuant to a statutory summary suspension. Notably, the trial court admitted into

evidence, without objection, defendant's driver's license abstract from the Secretary of State. Sergeant Chacon testified he

checked the status of defendant's driver's license and learned it was suspended. This evidence demonstrates beyond a reasonable

doubt that defendant's license was suspended due to a statutory summary suspension. As such, the failure to instruct the jury on

the this element was harmless error. Alternatively, this court also finds the record supports the conclusion that defendant affirmatively chose not to submit this issue to the jury. conclusion. The stipulation supports that

In addition, the statement of the nature of the

case, to which defendant did not object, provided that in count I, defendant was charged with committing DUI, and in count II, defendant was charged with DWS. The statement of the case says

nothing about a requirement that the jury find, on count I, that defendant's license was suspended due to a prior statutory summary suspension. Moreover, it appears defendant did not tender an instruction on count II requesting that the jury find that her license had been suspended for a prior statutory summary suspension. The only instruction defendant submitted on the issue was

one requesting that the jury find that defendant had notice of her suspension. The trial court denied that request. Based on

the record, defense counsel appears to have made a tactical - 31 -

decision to stipulate to her prior suspension. heard to complain.

She cannot now be

As a final note on this issue, this court notes that-insofar as the record on appeal shows--the jury instructions in this case were not marked as "given" or "refused." Section 2-

1107 of the Code of Civil Procedure requires the court mark all instructions "refused" or "given" and maintain all originals and copies of the instructions, whether given, modified or refused, in the record of the proceedings. 2006). 735 ILCS 5/2-1107(a),(b) (West

Doing so in this case would have been extremely helpful

to this court's review. D. Trial Court Did Not Err by Denying Defendant a Hearing on Her Motion To Suppress Evidence for Lack of Probable Cause To Arrest Defendant argues the trial court erred by granting the State's motion to strike and denying her a hearing on her motion to suppress evidence for lack of probable cause for the arrest. Specifically, defendant argues that absent a Frye hearing to establish the scientific validity of the HGN test, the HGN test could not be used by the officers to determine probable cause. Defendant asserts that an arrest made, at least in part, on probable cause derived from an HGN test is invalid. As such,

defendant asserts that the arrest must be "quashed" and the evidence flowing from that arrest, including the breath test, must be suppressed. The trial court has the authority to control its own docket and require compliance with its procedural rules. - 32 People

v. Garcia, 312 Ill. App. 3d 422, 423, 727 N.E.2d 683, 685 (2000). This court will not reverse the court's order granting the motion to strike absent an abuse of that discretion. See, e.g.,

Garcia, 312 Ill. App. 3d 423, 727 N.E.2d at 685. The Illinois Supreme Court has recently held that before the results of an HGN test can be admitted into evidence at trial, HGN testing must meet the Frye standard. People v.

McKown, 226 Ill. 2d 245, 258, 875 N.E.2d 1029, 1037 (2007) (remanding the cause to the trial court for a Frye hearing to determine whether the HGN test as been generally accepted as a reliable indicator of alcohol impairment). However, this court

need not decide whether probable cause can be based on an HGN test absent a Frye hearing because the record demonstrates sufficient evidence separate and apart from the HGN test supported probable cause. See, e.g., Kirk, 289 Ill. App. 3d at 334,

681 N.E.2d at 1078-79 (finding admission of HGN test at trial without a Frye hearing was harmless in light of the other evidence of the defendant's guilt). In this case, the trial court did not abuse its discretion by granting the State's motion to strike because the record demonstrates sufficient probable cause supported defendant's arrest. Probable cause to arrest exists when the totality of

facts and circumstances within the officer's knowledge would lead a person of reasonable caution to believe that an offense has been committed and that the person apprehended has committed the offense. People v. Gray, 305 Ill. App. 3d 835, 838, 713 N.E.2d - 33 -

781, 783 (1999).

In assessing the existence of probable cause,

an objective inquiry into the police officer's conduct is used. People v. Smith, 156 Ill. App. 3d 596, 600, 509 N.E.2d 1345, 1348 (1987). Here, Sergeant Chacon testified he observed defendant's car turn and strike a raised median with all four tires. Defen-

dant was wearing several colored beads, beads Sergeant Chacon knew the bars gave out around Mardi Gras. Sergeant Chacon

described defendant's eyes as being watery and red and her speech as slightly slurred. Defendant admitted having had three drinks.

An odor of alcohol emanated from the open window of defendant's car. Sergeant Chacon had defendant perform preexit and field-

sobriety tests from which he concluded defendant was impaired by alcohol. shown. As such, sufficient evidence of probable cause was See, e.g., People v. Brodeur, 189 Ill. App. 3d 936, 941,

545 N.E.2d 1053, 1056 (1989) (finding probable cause where the offer testified the driver had bloodshot eyes, slurred speech, a strong odor of alcohol on the breath, and had been in a motorvehicle accident); People v. Cortez, 361 Ill. App. 3d 456, 464, 837 N.E.2d 449, 457 (2005) (odor of alcohol on the defendant's breath, the defendant's slurred speech, swaying, bloodshot eyes, and admission to drinking supported finding of probable cause for arrest for DUI). E. Trial Court Did Not Abuse Its Discretion by Limiting Defendant's Cross-Examination and Argument on the Reliability of the Breath Test Defendant next argues the trial court erred by limiting - 34 -

her cross-examination and closing argument regarding the reliability of the breath test as it was administered in this case. 1. Standard of Review This court reviews a trial court's evidentiary rulings for an abuse of discretion. People v. Britt, 265 Ill. App. 3d

129, 146, 638 N.E.2d 282, 294 (1994) (the trial court has the discretion to limit the scope of cross-examination and such ruling will not be reversed absent an abuse of discretion); People v. Millighan, 265 Ill. App. 3d 967, 974, 638 N.E.2d 1150, 1156 (1994) (the trial court has the discretion to limit the character and scope of closing argument). 2. Trial Court Did Not Abuse Its Discretion Defendant first argues the trial court improperly limited her cross-examination of Sergeant Chacon. Defendant

sought to cross-examine Sergeant Chacon on whether anything short of vomiting where the contents of the stomach are brought up into the mouth would affect the breath test and whether such event occurred during the observation period. A court may limit cross-examination of a witness to prevent minimally relevant questioning or confusion of the issues. Britt, 265 Ill. App. 3d at 146, 638 N.E.2d at 294.

Defendant must demonstrate not only that the trial court abused its discretion but must also show the abuse of discretion resulted in "manifest prejudice." Britt, 265 Ill. App. 3d at 146,

638 N.E.2d at 294; see also People v. Jackson, 303 Ill. App. 3d 583, 587, 715 N.E.2d 252, 255 (1999) (finding that even if a - 35 -

trial court abuses its discretion, a new trial is not warranted if the error is harmless beyond a reasonable doubt). Here, the trial court did not abuse its discretion by limiting defense counsel's cross-examination because the issue defense counsel intended to raise had no basis in the evidence. Officer Chacon did not testify that regurgitation would affect the test, and defense counsel had identified no expert he intended to call to testify in that regard. Moreover, the applicable regulations no longer prohibit regurgitation during the 20-minute observation period. Pursuant

to section 11-501.2 of the Vehicle Code, breath-alcohol test results are admissible if the test is performed according to the standards promulgated by the Department of State Police. ILCS 5/11-501.2 (West 2006). See 625

Prior to the 2004 amendments, the

applicable regulations provided that the subject shall not have "regurgitated or vomited" during the 20-minute observation period and if the subject "regurgitates or vomits," the process will start again. See 20 Ill. Adm. Code

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