People v. Ashton

2021 IL App (2d) 200265-UNo. 2-20-0265
Order filed March 1, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellant, )
)
v. ) No. 19-CF-860
)
EARL ASHTON, ) Honorable
) David P. Kliment,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BRIDGES delivered the judgment of the court.
Justices Hutchinson and Hudson concurred in the judgment.
ORDER
¶1 Held: Probable cause existed to arrest defendant for DUI where (1) the officer responding
to a domestic incident was told by defendant’s domestic partner that defendant had
just recently driven from the home with a bottle of vodka after having consumed
alcohol for several hours; and (2) the officers who shortly afterward found
defendant in his vehicle at a nearby gas station reported that (a) defendant smelled
strongly of alcohol and had bloodshot and glassy eyes, (b) there was an open bottle
of vodka in the passenger compartment, and (c) defendant refused to perform field-
sobriety tests.
¶2 The State appeals from the judgment of the circuit court of Kane County granting
defendant, Earl Ashton’s, motion to quash arrest and suppress evidence. Because we find that there
was probable cause to arrest defendant, we reverse and remand.
2021 IL App (2d) 200265-U¶3 I. BACKGROUND
¶4 Defendant was arrested on May 9, 2019, and charged with aggravated driving under the
influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2018)) and domestic battery (720
ILCS 5/12-3.2(a)(1) (West 2018)). Defendant was subsequently indicted on those same offenses
along with three additional counts of domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West
2018)).
¶5 Defendant filed a petition to rescind the statutory summary suspension of his driver’s
license and, following a hearing, the trial court granted defendant’s petition, concluding that there
was no probable cause to arrest defendant. (The granting of defendant’s petition to rescind the
summary suspension is not at issue here.)
¶6 Defendant subsequently moved to quash his arrest and suppress evidence. At the outset of
the hearing on defendant’s motion, defense counsel offered to stipulate that the testimony
presented would be the same as that presented at the hearing on the petition to rescind and offered
a transcript from that hearing. The State declined to stipulate. Thereafter, the following evidence
was presented.
¶7 Kane County sheriff’s deputy Luke Weston testified that, on May 8, 2019, he was
dispatched to a Batavia residence at approximately 5:08 p.m. When he arrived, he spoke with “Ms.
Walter,” 1 who told Weston that she had had a “physical argument” with defendant. Welter told
Weston that defendant pulled her hair, punched her on or about her head, and kicked her. Weston
observed that Welter was “missing a chunk of hair in the back of her head” and that she “had
1
Although referred to in the transcript of the hearing as “Ms. Walter,” she is identified in
the indictment as “Andrea Welter.” We will refer to her as Welter.
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2021 IL App (2d) 200265-Ubruising on her biceps.” Weston further testified that Welter told him that the argument with
defendant started over defendant’s drinking, when defendant expressed his desire to leave in his
vehicle and Welter attempted to take away defendant’s keys to prevent him from driving. Welter
told Weston that she had observed defendant drinking for five hours before Weston arrived.
Weston testified that Welter told him that the argument happened immediately before Weston
arrived and that defendant left as Weston was on his way. Weston testified that Welter told him
that defendant left in a blue BMW and that the police would find a chunk of her hair and a bottle
of vodka in the front passenger seat. Weston reported the BMW to dispatch and, within minutes,
learned that the BMW had been located.
¶8 Kane County sheriff’s deputy Steve Benson arrived at the Batavia residence while Weston
was speaking with Welter. Benson testified that he was present for “less than a minute” before
leaving to check the area for defendant’s vehicle. Benson located defendant in a blue BMW, about
three minutes later, at a gas station approximately one mile away. Benson approached the vehicle
and saw defendant sitting in the driver’s seat. The vehicle was on; the keys were in the ignition;
and the driver’s side window was down. Benson spoke with defendant. Benson testified:
“[Defendant] appeared to have an odor of alcoholic beverage coming from his mouth. His eyes
were bloodshot and glassy. I notice he had a—some hair sitting on his lap. And I also saw what
appeared to be a vodka bottle in the passenger area.” Benson asked defendant to exit the vehicle
and as defendant did so, the hair on defendant’s lap fell to the ground. After exiting the vehicle,
defendant sat down on the sidewalk. When Benson asked defendant how he got to the gas station,
defendant told Benson that he had driven there from his residence to get a pack of cigarettes.
¶9 Deputy Weston drove to the gas station after speaking with Welter for about ten minutes.
Weston testified that, when he arrived at the gas station, defendant had already exited his vehicle
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2021 IL App (2d) 200265-Uat Benson’s direction and was sitting on a curb next to it. Weston observed a chunk of hair near
defendant. Weston spoke with defendant, standing about five feet away. From that distance,
Weston detected an odor of alcohol on defendant’s breath. Weston also observed that defendant
“had bloodshot and glassy eyes.” Weston asked defendant how he got to the gas station, and
defendant told Weston that he had driven there. Weston asked defendant if he had gotten into an
argument with Welter. Defendant told Weston that he had gotten into a “verbal argument” with
Welter and left. Weston asked defendant if he would submit to field sobriety testing. Defendant
refused, and Weston placed him under arrest. After arresting defendant, Weston observed a bottle
of Vitali vodka in the front passenger seat of the vehicle; the bottle was not full.
¶ 10 At the close of evidence, the trial court found no probable cause to arrest defendant for
DUI, and it granted the motion as to only the DUI count of the indictment. The court stated: “No
one who has testified in this courtroom observed him driving. There were no field sobriety tests.”
The court recognized the testimony that “[t]here was an odor of alcohol” and that “[t]here were
bloodshot eyes.” However, the court stated: “There was no testimony that he was unsteady on his
feet, had trouble or difficulty walking to the area where he was seated apparently for a period of
time. There was no evidence of him swaying. No evidence of any physical impairment whatsoever.
No mumbled speech.” The court also noted that there was no evidence as to whether defendant
was asked for his driver’s license or whether he had difficulty retrieving it. The court concluded:
“Just because he has been drinking and even though he has alcohol in the car, which is in and of
itself an offense, that does not mean he was driving while under the influence of alcohol. And I
don’t think there is anything in the record to show me that there was probable cause to arrest him
for that offense.”
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2021 IL App (2d) 200265-U¶ 11 The State filed a “motion to reconsider court’s partial granting of defendant’s motion to
quash arrest, or, in the alternative, to clarify its ruling.” The State argued that (1) the motion was
deficient as a matter of law, (2) the trial court’s finding of probable cause as to the domestic-
violence counts made the question of probable cause as to the DUI count irrelevant and without
legal consequence, and (3) the court’s finding of a lack of probable cause was manifestly
erroneous.
¶ 12 The trial court denied the motion to reconsider and clarified its ruling as follows: “The
Court rules that any evidence obtained after the defendant’s arrest, evidence recovered from the
car, statements made thereafter and the refusal to submit to a breath test are suppressed pursuant
to the court’s previous ruling.”
¶ 13 The State filed a certificate of impairment (see Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017))
and a timely notice of appeal.
¶ 14 II. ANALYSIS
¶ 15 The State advances three arguments on appeal. First, the State argues that defendant’s
motion to quash his arrest and suppress evidence was “legally insufficient” because it failed to
specify the facts showing that the search was unlawful and failed to specify the evidence to be
suppressed. Second, the State argues that the trial court’s ruling was “legally inconsistent” because
it ordered the suppression of evidence even though it found that the officers had probable cause to
arrest defendant for domestic battery. Third, defendant argues that the court erred in concluding
that the officers lacked probable cause to arrest defendant for DUI.
¶ 16 Defendant has not filed an appellee’s brief responding to the State’s arguments.
Nevertheless, we may address the merits of the appeal, because the record is simple and the
claimed errors can be easily decided without the aid of an appellee’s brief. See First Capitol
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2021 IL App (2d) 200265-UMortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976); see also People v.
Marcella, 2013 IL App (2d) 120585, ¶¶ 23, 36 (deciding under Talandis whether undisputed facts
established probable cause to detain the defendant).
¶ 17 We address the State’s third argument first—whether the trial court erred in finding that
Weston lacked probable cause to arrest defendant for DUI. We apply a bifurcated standard of
review to a trial court’s ruling on a motion to quash arrest and suppress evidence. People v. Meo,
2018 IL App (2d) 170135, ¶ 16. We defer to the trial court’s findings of fact, reversing them only
if they are against the manifest weight of the evidence. Id. However, we review de novo the court’s
legal conclusion as to whether suppression was warranted. Id.¶ 18 In considering whether Weston had probable cause to arrest defendant, we keep the
following legal principles in mind.
“Probable cause to arrest exists when the totality of the facts known to the officer at the
time of the arrest are sufficient to lead a reasonably cautious person to believe that the
arrestee has committed a crime. [Citation.] Probable cause concerns probabilities and not
technicalities. [Citation.] That is, probable cause is based on the factual and practical
considerations of everyday life upon which reasonable, prudent people, not legal
technicians, act. [Citation.] Probable cause is more than a mere suspicion but less than
proof beyond a reasonable doubt [citation].” Id. ¶ 25.
In addition,
“[p]robable cause for an arrest may be established on the basis of all the information by the
officers working in concert [citations], and even if such knowledge is not told to the
arresting officer, it may be considered by the trial court in determining whether there was
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2021 IL App (2d) 200265-Uprobable cause so long as such information was somehow placed in the record.” [Citation.]
People v. Fox, 155 Ill. App. 3d 256, 263-64 (1987).
¶ 19 The elements of DUI under section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS
5/11-501(a)(2) (West 2018)) are: (1) the defendant was driving or in actual physical control of the
vehicle and (2) the defendant was under the influence of alcohol. There are several pieces of
evidence that, when considered in their totality, provided probable cause to arrest defendant for
DUI.
¶ 20 We first note that the evidence was sufficient to lead a reasonably prudent person to
conclude that defendant was in actual physical control of his vehicle. The issue of actual physical
control should be resolved on a case-by-case basis, giving weight to such facts as whether the
motorist (1) was in the driver’s seat of the vehicle, (2) had possession of the ignition key, (3) was
physically capable of operating the vehicle, and (4) was alone in the vehicle with the doors locked.
People v. Kiertowicz, 2013 IL App (1st) 123271, ¶ 21. “These factors merely provide a guideline
to determine whether defendant had actual physical control of the vehicle; the list is neither
exhaustive, nor is the absence of one individual factor controlling.” Id. Here, Benson testified that
he located defendant in his vehicle, approximately one mile from the Batavia residence. Benson
observed defendant in the driver’s seat. The vehicle was on and the keys were in the ignition. When
Benson asked defendant how he got to the gas station, defendant told him that he had driven there.
Thus, the evidence supported a finding of probable cause on the issue of actual physical control.
¶ 21 The evidence was also sufficient to lead a reasonably prudent person to conclude that
defendant was under the influence of alcohol. A person is under the influence of alcohol when he
or she is “ ‘less able, either mentally or physically, or both, to exercise clear judgment, and with
steady hands and nerves operate an automobile with safety to himself and to the public.’ ” People
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2021 IL App (2d) 200265-Uv. Bostelman, 325 Ill. App. 3d 22, 34 (2001) (quoting People v. Seefeldt, 112 Ill. App. 3d 106, 108
(1983)). A motorist can be under the influence of alcohol without being completely incapacitated.
People v. Tatera, 2018 IL App (2d) 160207, ¶ 29. A motorist can be able to maintain his or her
balance and walk steadily, and yet be too impaired to safely operate a motor vehicle. Id.¶ 22 Common indicia of impairment include the odor of alcohol and red and glassy eyes.
People v. Williams, 2018 IL App (2d) 160683, ¶ 14. Generally, “ ‘these observations are
supplemented by other observations apparent to the officer or inferred from his observations such
as speeding, weaving, erratic driving, driving on the wrong side of the road, being stuck in a ditch
[citation] or *** being in a vehicle which is stuck in the mud.’ ” Id. (quoting People v. Wingren,
167 Ill. App 3d 313, 321 (1988)). Here, Benson testified that defendant had “an odor of alcoholic
beverage coming from his mouth” and that defendant’s “eyes were bloodshot and glassy.” Weston
testified that he too detected an odor of alcohol on defendant’s breath and that defendant “had
bloodshot and glassy eyes.” Indeed, Weston was five feet away from defendant when he smelled
the alcohol, which tends to suggest that the odor was strong.
¶ 23 In addition to the strong odor of alcohol and bloodshot and glassy eyes, Benson and Weston
also both testified that they observed a bottle of vodka in the passenger area, and Weston testified
that the bottle was not full. The partially-filled bottle of vodka is further evidence that defendant
was under the influence. See, e.g., People v. McKown, 236 Ill. 2d 278, 302 (2010) (“[A]ny
evidence of alcohol consumption is relevant to the question of impairment.”); People v. Rush, 319
Ill. App. 3d 34, 40-41 (2001) (open can of beer in vehicle was factor to consider in determining
probable cause to arrest for DUI). Although Weston testified that he observed the bottle after he
arrested defendant, Benson testified that he saw the bottle when speaking with defendant prior to
asking him to exit the vehicle. As noted, probable cause may be established based on all of the
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2021 IL App (2d) 200265-Uinformation obtained by the deputies. Weston also testified that defendant refused to perform field
sobriety tests when requested to do so. Defendant’s refusal to perform the test was probative of
impairment and further supported probable cause to arrest. See Williams, 2018 IL App (2d)
160683, ¶ 17; Meo, 2018 IL App (2d) 170135, ¶ 28.
¶ 24 Moreover, in addition to the above evidence, Weston was also acting with knowledge of
the information provided to him by Welter. According to Weston, Welter told him that defendant
had been drinking for five hours prior to Weston’s arrival. Welter told Weston that her argument
with defendant started over defendant’s drinking, when defendant expressed a desire to leave in
his vehicle and Welter attempted to take defendant’s keys. She did so to prevent defendant from
driving due to his extreme intoxication from his having consumed a bottle of vodka over several
hours. Welter also told Weston that defendant had a bottle of vodka in the passenger seat.
“[H]earsay is a permissible basis for a finding of probable cause.” People v. Gocmen, 2018 IL
122388, ¶ 43 (in hearing on the defendant’s petition to rescind summary suspension, the trial court
properly relied on officer’s hearsay testimony about information provided to him by paramedics);
see also People v. Macias, 39 Ill. 2d 208, 213 (1968) (probable cause “may be founded on hearsay
evidence” and “is based upon the factual and practical considerations of everyday life upon which
reasonable and prudent men, not legal technicians, act”); People v. Horine, 2017 IL App (4th)
170128, ¶ 16 (at hearing on the defendant's petition to rescind summary suspension, “the officer’s
testimony, even if it includes hearsay, is permissible as it provides the court with the necessary
information to rule on the petition. Although such testimony may constitute impermissible hearsay
at trial, such testimony is permissible in this setting.”). Thus, based on what Welter told him,
Weston could have reasonably inferred that defendant was too intoxicated to drive safely.
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2021 IL App (2d) 200265-U¶ 25 Here, in finding that there was no probable cause to arrest defendant for DUI, the trial court
relied on the fact that there was no testimony from anyone who “observed [defendant] driving.”
However, “[n]o direct evidence that the defendant actually drove a motor vehicle in an erratic or
unlawful manner is required either to sustain a defendant’s conviction for DUI or to provide
probable cause for his arrest for DUI.” People v. Misch, 213 Ill. App. 3d 939, 942 (1991). The
court also relied on the fact that there was no testimony that defendant “was unsteady on his feet,
had trouble or difficulty walking” or was “swaying.” However, as noted, proof that a motorist was
under the influence of alcohol does not require evidence that he or she was incapacitated. Tatera,
2018 IL App (2d) 160207, ¶ 29. A motorist can be able to maintain his balance and walk steadily,
and yet be too impaired to safely operate a motor vehicle. Id. The court also noted that “[t]here
were no field sobriety tests.” But, as noted, defendant refused to perform the tests, which was a
factor probative of impairment.
¶ 26 In sum, defendant’s glassy and bloodshot eyes, the strong odor of alcohol on defendant’s
breath, the open bottle of vodka in the passenger area, defendant’s refusal to perform field sobriety
tests, and the information obtained from Welter would cause a reasonably cautious person to
believe that defendant was impaired. Thus, there was probable cause to arrest defendant for DUI.
Given our holding, we need not consider the State’s remaining arguments.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we reverse the judgment of the circuit court of Kane County and
remand for further proceedings.
¶ 29 Reversed and remanded.
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