People v. Allen ( 2007 )

No. 3--06--0783
Filed August 7, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 05--DT--1007
)
DAVID M. ALLEN, )
) Honorable Edward Burmila, Jr.
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Defendant, David Allen, was convicted in the circuit court
of Will County of driving under the influence (DUI) in violation
of section 11--501(a)(6) of the Illinois Vehicle Code (the Code).
625 ILCS 5/11--501(a)(6) (West 2006). This section of the Code
makes it illegal to drive with "any amount" of cannabis in a
"person's breath, blood, or urine" regardless of whether there is
any visible impairment. 625 ILCS 5/11--501(a)(6) (West 2006).
Defendant was sentenced to 12 months' court supervision,
fined $750, and ordered to complete Level II moderate counseling.
Defendant appeals his conviction, claiming that the trial court
erred by allowing a police officer to testify that he smelled
cannabis on defendant's breath and further claiming that the
evidence admitted at trial was insufficient to prove defendant
guilty beyond a reasonable doubt of the offense charged.
FACTS
Officer Brian Wojowski testified at defendant's trial and
during a hearing on defendant's motion in limine and motion to
suppress evidence. The officer's testimony during the hearing on
defendant's motions was incorporated into the evidence adduced at
trial by stipulation of the parties. Wojowski stated he was a
member of the New Lenox police department and that on June 29,
2006, at approximately 3:05 p.m., he was assigned to assist the
Illinois State Police with a roadside safety check in New Lenox.
During the safety check, Wojowski came into contact with the
defendant. Office Wojowski was called to the defendant's vehicle
by Officer Furlong, who "explained" to Wojowski that he smelled
burnt cannabis emitting from the car. When the officer first saw
the defendant, defendant was standing behind his vehicle.
Wojowski approached the defendant's vehicle and also noticed a
smell of burnt cannabis coming from the vehicle. Wojowski
noticed a smell and odor of burnt cannabis on defendant's breath
and noticed that defendant's pupils seemed dilated. Pursuant to
the trial court's ruling on defendant's motion in limine,
2
Wojowski was allowed to testify to his observations and the
"physical state" of the defendant, but he was precluded from
testifying "that dilated pupils meant to him that defendant had
consumed marijuana." After making observations concerning
defendant's physical condition, Wojowski then asked defendant if
he had recently smoked cannabis and defendant stated, pursuant to
Wojowski's testimony at trial, that he had smoked cannabis the
night before.
Wojowksi stated that he worked for four years in the Chicago
Housing Authority as an officer and would "frequently" arrest
people in the act of smoking marijuana. He stated that "time
after time after time," he had correlated "the smell of burnt
cannabis to the actual lab result." Throughout his tenure in law
enforcement and "hundreds" of marijuana arrests, he developed the
skill to "recognize easily" the "distinctive smell" of burnt
cannabis.
The officer testified that based upon defendant's admission
that he had smoked cannabis within the past 24 hours, he placed
defendant under arrest for DUI - drugs. Wojowski did not ask the
defendant to perform any type of field sobriety tests as those
tests, in the officer's opinion, are not valid to determine
marijuana impairment. Wojowski admitted that there was nothing
unusual about the way defendant walked, defendant's speech was
3
clear and fine, and no illegal drug paraphernalia or drug residue
was located inside defendant's vehicle. Officer Wojowski noted
that he could not tell from the smell of defendant's breath
whether defendant had any cannabis in his blood at the time of
arrest.
Specifically, the following testimony was offered at trial:
"Q. [Defense Counsel:] And on the night in
question, you did, in fact, physically test my
client's breath for elements of cannabis?
A. [Wojowski:] I don't believe you can.
Q. Okay. And you didn't pierce his blood
to determine whether or not there was cannabis,
in fact, in his system?
A. No, he refused the test.
***
Q. Okay. And from a person's breath,
there's no way of indicating what amount of
cannabis is in a person's blood?
A. Correct.
Q. Okay. So you can't tell me if it's zero
or if it's 100 milligrams?
A. No.
Q. Okay. And you can't tell with any
4
scientific certainty if there's any cannabis in
his breath outside of smell?
A. You can tell if there's cannabis on a
person's breath. In a person's breath --
Q. In a person's breath?
A. -- I don't know if you can tell if there is
anything in anybody's breath."
Defendant testified on his own behalf. He stated that he is
a maintenance supervisor at Bally Total Fitness in New Lenox. On
the day of his arrest, he worked from 6 a.m. to approximately
2:15 p.m. The defendant noted that the night before his arrest,
he lent his car to his girlfriend's 16-year-old daughter and when
he got into it on the morning of his arrest, it smelled "funky."
Defendant stated that he did not recognize the smell emanating
from the car when he entered it that morning. To him, it smelled
like a "cross between cigarette and burnt paper." The defendant
denied smoking cannabis and denied telling the officer that he
smoked cannabis the prior evening. Defendant explained that he
works with pool chemicals at the health club which can be
irritating to the eyes, and he is not allowed to smoke at the
health club. Defendant concluded by noting that when he got into
his car to drive home, he smoked several cigarettes.
After closing arguments, the trial court made "a few
5
preliminary observations." The court noted that it believed the
defendant's statement to Officer Wojowski regarding using
cannabis the night before the stop was "corroborated in advance
by the officer's detection of what he believed to be marijuana in
both the car and on the defendant's breath." The trial court
noted that the defendant chose to testify in the trial and put
his credibility at issue. The court specifically noted that the
defendant's credibility gave the court "some pause." The court
then noted a few instances in defendant's testimony that it
believed to be less than genuine. The court then took the matter
under advisement and later found defendant guilty of the offense
charged. This appeal followed.
ANALYSIS
Defendant's initial argument centers around the admission of
Officer Wojowski's testimony. Defendant argues that the trial
court improperly denied his motion in limine that sought to bar
Wojowski's testimony concerning some of Wojowski's observations
and conclusions. Defendant's motion was based on the argument
that no proper scientific foundation existed that would allow
Wojowski to conclude what he smelled on defendant's breath was,
in fact, cannabis. A reviewing court will not reverse the trial
court's ruling on a motion in limine absent an abuse of
discretion. People v. Kratovil, 351 Ill. App. 3d 1023, 815
6
N.E.2d 78 (2004).
Defendant claims that People v. Park supports his argument
that additional scientific testing was necessary before the
officer should have been allowed to testify that defendant's
breath contained cannabis. In Park, the defendant was convicted
of possession of cannabis. People v. Park, 72 Ill. 2d 203, 380
N.E.2d 795 (1978). A police officer testified that given his
training, he could identify marijuana by "'feel, smell, texture
and looks.'" Park, 72 Ill. 2d at 207. No testimony regarding
chemical testing was allowed into evidence, but the officer was
allowed to testify that he believed the substance possessed by
defendant to be marijuana. Park, 72 Ill. 2d at 207. Defendant's
conviction for cannabis possession was reversed by the appellate
court (People v. Park, 49 Ill. App. 3d 40, 363 N.E.2d 884 (1977))
and the reversal affirmed by our supreme court. Park, 72 Ill. 2d
at 214.
After examining the propriety of expert testimony in
numerous areas, the Park court stated:
"Thus, while the value of pregnant sows
and stolen auto parts might be readily assimilated
with only limited experience, the ability to
draw fine distinctions between fingerprints and
ballistic markings requires more thorough and
7
systematic study. The positive identification
of cannabis without the aid of chemical and
microscopic analysis falls into the latter
category, because it simply is far too likely
that a nonexpert would err in his conclusions on
this matter, and taint the entire fact-finding
process. Cross-examination often is a clumsy,
counterproductive and therefore ineffective means
of purging that taint. Accordingly, we hold that
Carrico's statement that the substance was in fact
marijuana should not have been admitted and did
not help to establish this element of the State's
burden." Park, 72 Ill. 2d at 211.
The State does not attempt to differentiate Park, but
instead argues that People v. Glisson should guide our decision.
In Glisson, a traffic stop led to officers discovering anhydrous
ammonia in the defendant's vehicle. People v. Glisson, 359 Ill.
App. 3d 962, 835 N.E.2d 162 (2005). A police officer testified
that upon approaching the car, he could detect the faint odor of
anhydrous ammonia. Glisson, 359 Ill. App. 3d at 965. After the
trunk to the vehicle was opened, the smell of anhydrous ammonia
became much stronger. In Glisson, the only evidence that the
substance found in the trunk was anhydrous ammonia was the
8
testimony of three officers regarding the odor that they smelled.
Glisson, 359 Ill. App. 3d at 966.
After discussing a great number of cases, the Glisson court
stated:
"Although we have found no case precisely
on point, we think the officers' testimony
regarding the smell of the anhydrous ammonia
was sufficient due to its distinctive odor.
Our conclusion is bolstered by the impossibility
of performing forensic testing on anhydrous
ammonia. See Park, 72 Ill. 2d at 213-14, 380
N.E.2d at 800-01 (finding testimony that a
substance was marijuana insufficient to prove
that it was in fact marijuana due, in part,
to the availability of a simple test); People
v. Maiden, 210 Ill. App. 3d 390, 400, 569
N.E.2d 120, 126-27 (1991) (testing one of three
samples of a substance for the presence of PCP
was insufficient where it would be easy for the
State to test the remaining samples)." Glisson,
359 Ill. App. 3d at 969.
In the case at bar, just as in Glisson, no forensic test was
available to Officer Wojowski to determine the chemical
9
composition of what he smelled on defendant's breath. Wojowski
testified that, to his knowledge, no test existed to "physically
test *** breath for elements of cannabis." Defendant assured no
test was available to determine if cannabis was in his system by
refusing a blood and urine test. Moreover, given the officer's
testimony and general common knowledge, burnt cannabis, just like
anhydrous ammonia, has a distinctive smell. These factors
convince us that this case is more analogous to Glisson than
Park. Park did not involve burnt cannabis and the officers in
Park had ample time to chemically test the substance they
believed to be cannabis prior to defendant's trial for illegal
possession of cannabis. Given the holding and reasoning of
Glisson, we cannot say it was an abuse of discretion for the
trial court to allow Officer Wojowski to testify that he smelled
cannabis on defendant's breath.
Defendant's final contention on appeal is that the State
failed to introduce sufficient evidence to prove him guilty
beyond a reasonable doubt of the offense charged. The standard
of review in an appeal challenging a criminal conviction based on
the sufficiency of the evidence is whether, after the viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. People v. Collins, 106
10
Ill. 2d 237, 478 N.E.2d 267 (1985).
The trial court specifically found that defendant's
testimony was not credible and that the testimony of Wojowski
concerning defendant's admission that he smoked marijuana the
night before his arrest was corroborated by the officer's
detection of the smell of burnt cannabis both in the car and on
defendant's breath. Section 11--501(a)(6) of the Illinois
Vehicle Code (625 ILCS 5/11--501(a)(6) (West 2006)) states that a
person shall not drive or be in actual physical control of any
vehicle within the State while there is any amount of drug,
substance, or compound in the person's breath, blood, or urine
resulting from the unlawful use or consumption of cannabis.
We agree with defendant that the evidence adduced at trial
was insufficient to prove him guilty beyond a reasonable doubt.
To prove all of the elements of the offense charged, the State
needed to prove beyond a reasonable doubt that defendant had
cannabis "in" his breath, urine, or blood. 625 ILCS 5/11--
501(a)(6) (West 2006). The only witness called by the State was
Officer Wojowski, who clearly stated that it was "impossible" to
tell whether defendant had zero milligrams or 100 milligrams of
cannabis in his breath or blood. This testimony by Officer
Wojowski is fatal to the State's case. The statute does not
criminalize having breath that smells like burnt cannabis.
11
Furthermore, even though the trial court found the officer's
testimony credible regarding defendant's admission of smoking
cannabis the night before his arrest, the State put on no
evidence that there would have been "any amount" of the illegal
drug in defendant's breath, urine, or blood" at the time of
defendant's arrest as a result of smoking cannabis the night
before. The State needed some testimony that, based on the
evidence, defendant had at least some cannabis or THC "in his
breath, urine, or blood." Therefore, we find that the State
failed to prove defendant guilty of the offense charged beyond a
reasonable doubt.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Will County is reversed.
Reversed.
McDADE and O'BRIEN, JJ., concur.
12