2021 IL App (4th) 200461-U 

NO. 4-20-0461 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellant, 

v. 

JUSTIN WEST, 

Defendant-Appellee. 

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Appeal from

Circuit Court of

McLean County 

No. 20DT191 

Honorable 

Pablo A. Eves, 

Judge Presiding.

 JUSTICE HOLDER WHITE delivered the judgment of the court.

 Justice Steigmann concurred in the judgment.

 Justice Cavanagh dissented.

ORDER

¶ 1 Held: The appellate court reversed, concluding the trial court erred by concluding the 

officer lacked reasonable grounds to believe defendant was under the influence of 

alcohol. 

¶ 2 In April 2020, defendant, Justin West, was charged by traffic citation and 

complaint with driving under the influence of alcohol (DUI) and was served with a statutory 

summary suspension. Defendant filed a petition to rescind the summary suspension, alleging the 

arresting officer lacked reasonable grounds to believe defendant was under the influence. The 

trial court concluded the results of the portable breath test (PBT) were inadmissible due to 

inadequate foundation. The court further found the officer lacked sufficient reasonable grounds 

to believe defendant was under the influence of alcohol and granted defendant’s petition to 

rescind the statutory summary suspension of his driver’s license. 

NOTICE

This Order was filed under 

Supreme Court Rule 23 and 

is not precedent except in the 

limited circumstances 

allowed under Rule 23(e)(1). 

FILED

November 17, 2021

Carla Bender

4th District Appellate

Court, IL
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¶ 3 The State appeals, arguing the trial court erred by (1) excluding the results of the 

PBT and (2) finding there were no reasonable grounds to arrest defendant for DUI. For the 

following reasons, we reverse the trial court’s judgment.

¶ 4 I. BACKGROUND

¶ 5 In April 2020, defendant was charged by traffic citation and complaint with DUI 

and was served with a statutory summary suspension. Defendant filed a petition to rescind the 

summary suspension, alleging the arresting officer lacked reasonable grounds to believe 

defendant was driving while under the influence. 

¶ 6 Officer Tyler Vanwynsburg issued defendant traffic citations for DUI and driving 

the wrong way on a one-way street. Vanwynsburg’s sworn report indicated he had reasonable 

grounds to believe defendant was driving under the influence based on defendant driving the 

wrong way down a one-way street, admitting to drinking, having red eyes, performing poorly on 

field sobriety tests, and taking a PBT resulting in a blood alcohol concentration (BAC) of 0.125. 

¶ 7 In May 2020, a confirmation of statutory summary suspension was sent to 

defendant. In June 2020, defendant filed a petition to rescind the statutory summary suspension, 

alleging the arresting officer lacked reasonable grounds to believe defendant was driving upon a 

public highway while under the influence of alcohol. 

¶ 8 The trial court held a hearing on the petition to rescind summary suspension on 

three nonconsecutive days. After defendant met his burden of proving a prima facie case for 

rescission, the court heard the following relevant evidence.

¶ 9 Vanwynsburg was in uniform and on patrol in a marked squad car near College 

Avenue and Mulberry Street in Normal, Illinois, at approximately 8:35 p.m. on the evening in 

question. Vanwynsburg saw and stopped the driver of a red pickup truck—later identified as 
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defendant—driving the wrong direction on a one-way street, although he immediately moved to 

correct his error. Vanwynsburg testified defendant otherwise obeyed traffic laws and

appropriately curbed his vehicle when Vanwynsburg pulled him over. Defendant gave the 

officer conflicting information about where he was going and where he was coming from. 

Defendant appeared nervous and admitted to drinking wine 20 minutes earlier. Vanwynsburg 

testified defendant was polite and cooperative, did not have slurred speech, and did not smell of 

alcohol. 

¶ 10 According to Vanwynsburg, he administered an abbreviated horizontal gaze 

nystagmus (HGN) test, during which Vanwynsburg noted defendant’s “eyes appeared red and he 

had some jerking to his eyes at maximum deviation.” Based on his observations, Vanwynsburg 

returned to his patrol car and called for backup. Vanwynsburg then had defendant perform field 

sobriety tests. Defendant performed the field sobriety tests on a hard surface road, lit with 

Vanwynsburg’s flashlight, with minimal traffic. 

¶ 11 Vanwynsburg was qualified to administer the field sobriety tests and testified 

there are six “clues” the HGN test can reveal. If at least four of the clues are present, the officer 

can give another field sobriety test. Vanwynsburg testified he administered the HGN test on 

defendant but he later noticed an error he made. On the night in question, Vanwynsburg noticed 

four clues: “[l]ack of smooth pursuit in both eyes and jerking and sustained nystagmus in both 

eyes.” However, Vanwynsburg testified he took longer than prescribed while testing the lack of 

smooth pursuit. Vanwynsburg testified defendant displayed two clues during the HGN test, 

although he thought there were four clues at the time. 

¶ 12 Vanwynsburg next administered the walk-and-turn test. The walk-and-turn test

detects an individual’s lack of motor skills and inability to concentrate. A threshold of two clues 
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were needed to move to another field sobriety test. Vanwynsburg noted four clues during the 

walk-and-turn test: “He stepped off the line multiple times. He stopped walking at one point. 

He made an improper turn and missed heel to toe.” 

¶ 13 Vanwynsburg next administered the one-leg stand test. Out of a maximum of 

four clues, two clues met the threshold. At the time he administered the test, Vanwynsburg 

noticed one clue. After reviewing the video and report of the arrest, Vanwynsburg noticed a 

second clue of impairment—defendant used his arms to balance. 

¶ 14 Vanwynsburg again asked defendant how much he had to drink, and defendant 

admitted to drinking a vodka and vitamin water at approximately 11 a.m. Vanwynsburg asked 

defendant to take a PBT, and according to Vanwynsburg, “He said that he would fail and that he 

was impaired.” Vanwynsburg testified he was trained to operate the PBT machine, which was a 

model approved for police officers to use and was issued to Vanwynsburg by the Normal Police 

Department. According to Vanwynsburg, the PBT was regularly tested for accuracy. The 

following exchange occurred:

“Q. How often is the [PBT] machine—and how often is the 

[PBT] machine tested for accuracy?

A. On a 90-day cycle.

Q. Do the sergeants at the Normal Police Department 

check—sorry, test the machine for accuracy?

A. It[’]s assigned to one sergeant at a time but, yes. 

Q. Why is it assigned to one sergeant at a time?

A. He’s trained to do that test.
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Q. Was the [PBT] machine that you used that night tested 

for accuracy prior pursuant to policy?

A. Yes.

Q. Was that PBT machine accurate on that date that you 

used it?

A. Yes. It was issued back to me after it had been turned in 

for calibration. So, yes.” 

Just before Vanwynsburg testified as to the result of the PBT, defense counsel objected based on 

foundation. Defense counsel argued the officer testified someone else calibrated the PBT 

machine and he assumed whoever performed the calibration did it properly. The State argued a 

sufficient foundation had been laid. The trial court made a preliminary ruling that there was “an 

insufficient basis for admission of this based on the lack of foundation.” The court noted the 

foundation could be rectified if admission of the PBT results was important for the State. The 

court clarified its view of the inadequate foundation as follows: 

“I did not hear any evidence or testimony regarding that the test 

was conducted to obtain one breath sample by completing the 

operation and pressure you programed into the instrument. Nor 

did I hear any evidence regarding what the test consisted of 

regarding decimal points and messages regarding whether or not 

there was any malfunction. Those are provisions that, perhaps, are 

something that we will be able to provide.” 

¶ 15 At the continued hearing, Vanwynsburg testified he used a PBT called an 

Alco-Sensor FST, which was approved for use by police officers. According to Vanwynsburg, 
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the PBT was tested for accuracy on a 90-day cycle and was, to his knowledge, accurate because 

it was provided by his sergeant. Vanwynsburg followed the prompts on the PBT machine, and 

defendant submitted a breath sample. Defense counsel again objected to the foundation for the 

PBT results. The trial court sustained the objection. 

¶ 16 The trial court discounted the portion of the HGN test Vanwynsburg administered

incorrectly. Although there were sufficient clues on the walk-and-turn test, there was only a 

single clue on the one-leg stand test. The court stated, “So really one out of three areas of the 

standardized field sobriety tests is all that we have right now from the standardized test.” The 

court noted that, although defendant briefly drove the wrong way down a one-way street, he 

quickly corrected his error and had no other problems driving, even though he had a number of 

opportunities to display difficulties. 

¶ 17 When Vanwynsburg pulled defendant over, there was no odor of alcohol, no 

trouble providing a driver’s license and insurance, and no slurred speech. Defendant’s admission 

to drinking wine 20 minutes earlier was enough to allow Vanwynsburg to administer field 

sobriety tests. However, the court disagreed with Vanwynsburg’s assessment of the sobriety 

tests, stating, “[I]t’s the conclusion after administering those tests, particularly given the HGN as 

discounted and was not actually a fail, and the one-leg stand also, the first time through also was 

not a fail, given that the walk-and-turn was the only thing that corroborated, at least in my mind, 

what the previous testimony or previous observations had been by the officer.” 

¶ 18 The trial court reiterated it sustained the objection to the PBT results for lack of 

foundation. The court concluded defendant established the grounds for rescission by a 

preponderance of the evidence and the State failed to rebut those grounds. The court granted the 

petition to rescind the statutory summary suspension. 
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¶ 19 After the court granted defendant’s petition to rescind statutory summary 

suspension, the State filed a motion to reconsider. When ruling on the State’s motion to 

reconsider, the trial court stated its belief that the State was required to lay an adequate 

foundation for the PBT results. In part, the court stated, “[U]nder the Administrative Code the 

State failed to provide a full foundation required for admission of the PBT results, although I 

don’t think it was by identifying the actual device. That was not the Court’s concern on that, but 

rather the Administrative Code. I believe they did identify the device in the evidence.” The 

court denied the State’s motion to reconsider. 

¶ 20 This appeal followed. 

¶ 21 II. ANALYSIS

¶ 22 On appeal, the State argues the trial court erred by (1) excluding the results of the 

PBT and (2) finding there were no reasonable grounds to arrest defendant for DUI. Because we 

find the issue of whether the officer had reasonable grounds to believe defendant was under the 

influence of alcohol dispositive, we address the State’s second claim first.

¶ 23 “A motorist whose driving privileges have been summarily suspended may 

request a judicial hearing to seek rescission of the suspension.” People v. Acevedo, 2017 IL App 

(3d) 150750, ¶ 10, 74 N.E.3d 95. One ground for the rescission of the suspension is that the 

arresting officer did not have reasonable grounds to believe the person was driving while under 

the influence of alcohol, drugs, or both. 625 ILCS 5/2-118.1(b)(2) (West 2020). A hearing on a 

petition to rescind a summary suspension is civil in nature, and the defendant bears the burden of 

proving a prima facie case for rescission. People v. Gutierrez, 2015 IL App (3d) 140194, ¶ 14, 

38 N.E.3d 521.
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¶ 24 The State argues the trial court erred by finding no reasonable grounds for arrest. 

Defendant argues the State has forfeited this argument by failing to raise it before the trial court 

and preserve it in a postjudgment motion. Although during the hearing on the petition to rescind 

the State argued reasonable grounds to believe defendant was under the influence did exist, the 

State’s motion to reconsider focused on the foundation for the PBT, as did the State’s argument 

during the motion to reconsider. This was consistent with the purpose of a motion to reconsider, 

which, in this instance, was to bring to the court’s attention to any errors in the court’s previous 

application of existing law. People v. Olson, 2013 IL App (2d) 121308, ¶ 8, 992 N.E.2d 610. 

Even so, the motion did ask the court to reconsider the ruling granting the petition to rescind 

statutory suspension. As noted by the trial court, the petition to rescind alleged the officer lacked 

reasonable grounds to believe defendant was under the influence. The court went on to suggest 

the result of the PBT was “part of or built into the finding of reasonable grounds or a prima facie

case, if you will, as alleged in the petition, and then in my opinion carried by the defendant on 

the first side of the case.” While the court was discussing whether or not defendant carried his 

initial burden, the comment demonstrates the court had the opportunity to, and did, consider the 

reasonable grounds issue. Thus, we find the State avoided forfeiture.

¶ 25 In the context of statutory summary suspension and probable cause, the Illinois 

Supreme Court stated, in relevant part, as follows:

“Probable cause to arrest exists when 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.] That is, the existence of probable cause depends upon 

the totality of the circumstances at the time of the arrest. 
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[Citations.] ‘ “In dealing with probable cause, *** we deal with 

probabilities. These are not technical; they are the factual and 

practical considerations of everyday life on which reasonable and 

prudent men, not legal technicians, act.” ’ [Citations.]” People v. 

Wear, 229 Ill. 2d 545, 563-64, 893 N.E.2d 631, 642-43 (2008) 

(abrogated on other grounds by Lange v. California, 594 U.S. ___,

141 S. Ct. 2011 (2021)). 

An officer must have more than a mere suspicion, but sufficient evidence for a conviction is not 

required. People v. Quigley, 2018 IL App (1st) 172560, ¶ 34, 122 N.E.3d 705. “Indeed, 

probable cause does not even demand a showing that the belief that the suspect has committed a 

crime be more likely true than false.” Wear, 229 Ill. 2d at 564.

¶ 26 We give deference to the trial court’s findings of fact and reverse those findings 

only if they are against the manifest weight of the evidence. People v. Luedemann, 222 Ill. 2d 

530, 542, 857 N.E.2d 187, 195 (2006). “A reviewing court, however, remains free to undertake 

its own assessment of the facts in relation to the issues and may draw its own conclusions when 

deciding what relief should be granted.” Id. “[T]he ultimate legal ruling regarding rescission is 

reviewed de novo.” People v. Gocmen, 2018 IL 122388, ¶ 21, 115 N.E.3d 153.

¶ 27 Here, the officer observed defendant drive the wrong direction on a one-way 

street. Although the trial court highlighted the fact that defendant committed no other traffic 

violations, we must examine the totality of the circumstances. Vanwynsburg testified 

defendant’s eyes were red and he administered an abbreviated HGN test to defendant that 

indicated possible impairment. Vanwynsburg then asked defendant to exit his vehicle to perform 

field sobriety tests. According to Vanwynsburg, he administered an HGN test to defendant that 
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revealed four clues of impairment. Vanwynsburg later testified that he administered one portion 

of the test too slowly. Based on this testimony, the trial court completely discounted the results 

of the HGN test. However, at the time of arrest, Vanwynsburg believed the HGN test included 

four clues of impairment. We realize that at trial the HGN test results would likely not be 

admissible. However, in evaluating reasonable grounds, we look to the facts known to the 

officer at the time the arrest was made. People v. Chapman, 194 Ill. 2d 186, 217, 743 N.E.2d 48, 

67 (2000). Thus, we decline to utilize hindsight to determine defendant should not have been 

subjected to the walk-and-turn-test. Also, there is no suggestion of misconduct or nefarious 

intent by the officer. The walk-and-turn test revealed four clues of impairment: defendant 

stepped off the line multiple times, stopped walking at one point, made an improper turn, and 

missed heel to toe. According to Vanwynsburg’s testimony, only two clues on the walk-and-turn 

test indicated impairment. The trial court dismissed the unsuccessful completion of the walkand-turn test because it was the only field sobriety test that indicated impairment. The court’s 

dismissal of this evidence was against the manifest weight of the evidence where the walk-andturn test revealed four indicators of impairment, twice as many clues as necessary to indicate 

impairment.

¶ 28 Our review of the record indicates that Vanwynsburg knew of eight total clues of 

impairment at the time he arrested defendant—four indicators from the HGN test and four from 

the walk-and-turn test. In addition, defendant admitted he drank wine 20 minutes before driving 

and vodka earlier in the day. Finally, when Vanwynsburg asked defendant to take the PBT, 

defendant said he would fail the test because he was impaired. Based on the totality of the 

circumstances and the facts known to the officer at the time of arrest, we conclude the officer had
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reasonable grounds to believe defendant was under the influence of alcohol. Accordingly, we 

reverse the judgment of the trial court.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we reverse the trial court’s judgment. 

¶ 31 Reversed.

¶ 32 JUSTICE CAVANAGH, dissenting:

¶ 33 I respectfully disagree with the majority’s analyses and conclusions as to (1) the 

State’s forfeiture of any argument relative to whether there were reasonable grounds for the 

traffic stop and (2) the reversal of the trial court’s ruling of no reasonable grounds for the DUI 

arrest.

¶ 34 As noted by the majority, the State’s motion to reconsider was devoid of 

argument relative to reasonable grounds. Instead, the State argued the trial court incorrectly 

refused to consider the PBT result due to the absence of an adequate foundation. Likewise, the 

State’s argument at the hearing on the motion to reconsider addressed the PBT admission. 

Specifically, the State’s motion asked the court to “reconsider its previous ruling to allow the 

admission of the PBT results.” During the hearing on the motion, the State twice asked the court 

to reconsider its ruling on the PBT.

¶ 35 Because a summary suspension hearing is a civil proceeding, we look to those 

standards relative to forfeiture. It is well-established that issues not raised before a trial court are 

forfeited on appeal. 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 

118372, ¶ 14. This rule’s purpose is to encourage litigants to raise issues before the trial court, 

and to ensure the lower court has an opportunity to remedy an error prior to appeal. Id. As well, 

its purpose is to prevent a party from obtaining a reversal through inaction. Id. Because the State 
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did not raise the reasonable grounds argument with the trial court in a timely manner in its 

motion to reconsider or at the argument thereon (other than the PBT issue), which would have 

provided the court with an opportunity to consider the question, I believe the State has forfeited 

the argument on appeal. See id. ¶ 15. And of course, the result would be the same pursuant to the 

standard in a criminal appeal. Chapman, 194 Ill. 2d at 225. I would hold the State has forfeited 

any argument relative to reasonable grounds.

¶ 36 Moving to the issue of whether there were reasonable grounds to believe 

defendant was under the influence of alcohol, it is notable the hearing occurred over a period of 

three nonconsecutive days, giving the State ample opportunity to marshal evidence to rebut 

defendant’s prima facie case for rescission. Further, as the majority notes, the arresting officer 

testified defendant was cooperative, polite, and did not exhibit slurred speech or the smell of 

alcohol. The officer noted in addition that although defendant initially drove the wrong way 

down a one-way street, defendant immediately remedied that, obeyed the other traffic laws, and 

pulled over properly when directed to by the officer. 

¶ 37 As to the field sobriety tests (FSTs or FST singular), the officer testified he first 

performed the HGN test on defendant, but erred in doing so because he spent a longer span of 

time than prescribed performing an integral part of the test. As well, the officer testified 

defendant displayed but two clues on the HGN test. The officer acknowledged at least four clues 

on the HGN test are necessary to constitute a failure and permit proceeding to another FST.

¶ 38 Nevertheless, the arresting officer next conducted the walk-and-turn test. This 

FST requires two clues to constitute a test failure. The officer noted four clues: stepping off the 

line multiple times, that defendant stopped walking at some point, an improper turn, and failing 

to touch heel to toe.
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¶ 39 Finally, the officer conducted the one-leg-stand FST. This test requires two clues 

to fail, but the officer testified he noted one clue at the time of the stop.

¶ 40 The trial court determined it would not consider the HGN test as the officer 

administered the test incorrectly. Defendant passed the one-leg-stand test, leaving only his failure 

on the walk-and-turn. The court noted defendant had only briefly driven the wrong way on the 

one-way street, and had no other issues driving, though there were ample opportunities to 

demonstrate difficulties driving. Given the officer noted no odor of alcohol, no slurred speech, 

and that defendant had no trouble providing his driver’s license or insurance, the court granted 

defendant’s petition to rescind the statutory summary suspension. 

¶ 41 For HGN test results to be admissible, the testing (1) must have been performed 

according to the protocol promulgated by the National Highway Traffic Safety Administration 

(NHTSA) and (2) conducted by a properly trained officer in accordance with those standards. 

People v. McKown, 236 Ill. 2d 278, 306 (2010). If the testing is properly administered by a 

trained officer, the trained officer may use the test result as part of the basis for the officer’s 

conclusion a defendant is under the influence of alcohol and impaired. Id. Thus in McKown, the 

admission of the officer’s testimony about the HGN testing of the defendant, which did not meet 

NHSTA standards, was reversible error. Id. at 293, 310-11, 314. 

¶ 42 As acknowledged by the arresting officer, he did not perform the FSTs according 

to the appropriate standards. The officer first lingered too long during a portion of the HGN test. 

He subsequently proceeded to another FST, when there were only two clues on the HGN test—

despite the protocol requiring four clues on the HGN test to proceed with another FST. 

Therefore, the first test result from the HGN test cannot be used to support a conclusion 

defendant was under the influence of alcohol. Further, as defendant passed the HGN test, the 
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officer should not have proceeded with further testing. However, when the officer did, defendant 

failed the walk-and-turn and passed the one-leg-stand. If the officer had administered the HGN 

test in accordance with appropriate training and standards, the testing would have terminated

with defendant’s successful completion of the HGN test.

¶ 43 Thus, the trial court properly rejected the results of the HGN test and could have 

declined to consider any additional testing. Further, the court was in a superior position to 

evaluate the evidence presented over three nonconsecutive days. Without repeating the factors 

the court considered as noted above, I would affirm and hold (1) the court correctly determined 

there were no reasonable grounds to arrest defendant for DUI, (2) that such conclusion is not 

against the manifest weight of the evidence, and (3) the court did not commit error by granting 

defendant’s petition to rescind the statutory summary suspension.