2024 IL App (2d) 230597 

No. 2-23-0597 

Opinion filed March 12, 2024 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 23-CF-2656 

) 

AGUSTIN MORALES JR., ) Honorable 

) Salvatore LoPiccolo Jr., 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. 

Presiding Justice McLaren and Justice Mullen concurred in the judgment and opinion.

OPINION

¶ 1 In this interlocutory appeal, defendant, Agustin Morales Jr., challenges the trial court’s 

decision, ordering him to submit to drug testing as a pretrial release condition under Public Act 

101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act (Act).1 See 

also Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe 

1The Act is also commonly known as the Safety, Accountability, Fairness and EquityToday (SAFE-T) Act. Neither name is official, as neither appears in the Illinois Compiled Statutes 

or public acts. 
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v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). For 

the following reasons, we affirm. 

¶ 2 I. BACKGROUND

¶ 3 On December 8, 2023, in case No. 23-CF-2656, defendant was charged with unlawful 

possession of a controlled substance (720 ILCS 570/402(c) (West 2022)), a Class 4 felony, for 

possessing less than 15 grams of cocaine while in the Kane County Adult Justice Center. Defendant 

appeared before the court, which found probable cause, based on a Kane County Sheriff’s 

Department synopsis that does not appear in the record. Defendant was also the subject of a failure 

to appear warrant in another case (case No. 23-MT-5144). Because he was not charged with a 

detainable offense, the State requested pretrial release conditions as follows: 

“In [case No.] 23[-]CF[-]2656, the defendant is not to use intoxicating or controlled 

substances unless he has a valid prescription and is to comply with random drug testing 

through pretrial services three times per month. And in [case No.] 23[-]MT[-]5144, he is 

not to drive without a valid driver’s license. In both cases, he would be placed on maximum 

conditions with pretrial services.” 

¶ 4 Defendant, through counsel, requested that he not be subject to random drug testing three 

times monthly, as it was not a least restrictive condition for addressing any potential issue as to 

risk of flight, future court attendance, or ensuring that he is not a risk to the community or any 

specific person.

¶ 5 The State responded, 

“Judge, I would proffer that his criminal history is a possession of controlled 

substance in 2017, another possession of controlled substance in 2018, as well as DUIs in 
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2015 and 2021. In addition to the cases before the Court, he also has two cases for driving 

while license suspended in 23[-]MT[-]6427 and 23[-]MT[-]7261. 

Given the defendant’s history of using controlled substances and also of DUI and 

also continuing to drive when he doesn’t have a valid license, the State is concerned that 

not only will he continue to drive, but that he will continue to use controlled substances 

and/or alcohol[,] putting the community at greater risk and that is the reason that we are 

asking that he comply with random testing through pretrial services three times per month.”

¶ 6 The court announced that, based on defendant’s criminal history and the police synopsis, 

and taking into account the factors in sections 110-2 and 110-5 of the Code of Criminal Procedure 

of 1963 (Code) (725 ILCS 5/110-2, 110-5 (West 2022)) as amended by the Act, it found that the 

State had proved by clear and convincing evidence that certain conditions of pretrial release are 

necessary to reasonably assure (1) defendant’s appearance in court, (2) that defendant not commit 

any criminal offenses while on pretrial release, and (3) that defendant complies with all of the 

conditions of pretrial release. The court ordered, in part, that defendant be placed on maximum 

conditions of pretrial supervision with pretrial services, not commit any criminal offenses, not 

possess or consume any controlled or intoxicating substances without a valid prescription 

(excluding alcohol), and submit to random drug testing through pretrial services “a minimum of 

three times per month.” 

¶ 7 On December 11, 2023, defendant filed a notice of appeal, using the form notice 

promulgated under Illinois Supreme Court Rule 606(d) (eff. Oct. 19, 2023). On January 31, 2024, 

defendant filed a Rule 604(h) memorandum. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023). On 

February 20, 2024, the State submitted its memorandum opposing defendant’s appeal. 

¶ 8 II. ANALYSIS
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¶ 9 In his memorandum, defendant argues that the Code, as amended by the Act, provides that 

all defendants are presumed entitled to pretrial release, subject only to certain mandatory 

conditions. Additional conditions of release may be imposed only when necessary to ensure a 

defendant (1) appears in court, (2) does not commit a criminal offense, (3) complies with all 

conditions of pretrial release, (4) does not unlawfully interfere with the orderly administration of 

justice, and (5) complies with rules and procedures of problem solving courts. 725 ILCS 5/110-10 

(West 2022). Even then, defendant notes, the additional conditions must be individualized and 

serve as the least restrictive means for achieving the aforementioned goals. Id. Here, defendant 

contends, the State presented no evidence reflecting that random drug testing three times monthly 

is the least restrictive condition necessary for release. Instead, the State presented only argument 

reflecting its concern that, based upon his criminal history, he would continue to use controlled 

substances or alcohol while driving without a valid license, which could put the community at risk.

However, defendant notes that he did not contest the court’s other pretrial release condition that 

he refrain from using intoxicating or controlled substances without a prescription. Thus, defendant 

argues, where there was no evidence presented that he was driving under the influence or posed 

any specific risk to anyone in the community, the additional requirement of random drug tests, 

without any evidence that he would not obey the court’s order that he refrain from using 

intoxicating or controlled substances, is unduly restrictive. 

¶ 10 Defendant also notes that the plain language of section 110-10(b) (id. § 110-10(b)) no 

longer provides trial courts with express authority to impose drug testing as a condition for 

achieving the goals of pretrial release, as that language was removed from the statute, effective 

January 1, 2023. See Pub. Act 101-652, § 10-255 (eff. Jan. 1, 2023). He further notes that the court 

drug and alcohol testing programs previously in section 110-6.5 were also repealed (id. § 10-260))
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and, although sections 7 and 8 of the Pretrial Services Act (725 ILCS 185/7, 8 (West 2022)) 

expressly list the duties of pretrial service departments, those duties do not include administering 

drug and alcohol tests. The legislature’s modification of the statutes, defendant asserts, was based 

on recommendations from the Illinois Supreme Court’s Commission on Pretrial Practices, which 

had noted that research did not support a clear association between drug testing and improving 

either public safety or rates of appearance. Thus, defendant argues, where the legislature removed 

drug testing as a pretrial condition, we should not rewrite the statute to allow a trial court to impose 

it. Further, even if allowed, the State failed to establish by clear and convincing evidence that the 

drug testing is necessary or the least restrictive means for achieving section 110-10(b)’s goals. “In 

fact, the personal time and hardship needed for three random drug tests, along with court visits and 

other conditions, amount to a pretrial punishment before a finding of guilt.” Defendant asks that 

we reverse and strike the contested condition.

¶ 11 The State’s memorandum is entirely nonresponsive to the specifics of defendant’s 

argument regarding the lack of express authority in section 110-10 to impose drug testing. Rather, 

the State essentially contends only that, where the court considered section 110-5 and the State’s 

proffer, including defendant’s criminal history, it did not abuse its discretion. 

¶ 12 We review for an abuse of discretion the trial court’s ultimate determination regarding 

pretrial release, as well as questions regarding whether it properly considered one or more of the 

statutory factors in determining conditions of release. People v. Trottier, 2023 IL App (2d) 230317, 

¶ 13; People v. Vingara, 2023 IL App (5th) 230698, ¶ 10. An abuse of discretion occurs when the 

trial court’s determination is unreasonable. People v. Simmons, 2019 IL App (1st) 191253, ¶ 9. 

To the extent that the question on review is whether the State met its burden of proof by clear and 

convincing evidence, we apply the manifest-weight-of-the-evidence standard. Trottier, 2023 IL 
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App (2d) 230317, ¶ 13. However, to the extent that defendant raises a legal issue of statutory 

interpretation, our review is de novo. People v. Stoecker, 2014 IL 115756, ¶ 21. 

¶ 13 Pretrial release is governed by article 110 of the Code, as amended by the Act. 725 ILCS 

5/art. 110 (West 2022). As relevant here, when a defendant is not charged with a detainable 

offense, the court must determine which pretrial release conditions, “if any, will reasonably ensure 

the appearance of a defendant as required or the safety of any other person or the community and 

the likelihood of compliance by the defendant with all the conditions of pretrial release.” Id. § 110-

5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances 

of the offense charged; (2) the weight of the evidence against the defendant;(3) the history and 

characteristics of the defendant;(4) the nature and seriousness of the specific, real, and present 

threat to any person that would be posed by the defendant’s release; and (5) the nature and 

seriousness of the risk of obstructing or attempting to obstruct the criminal justice process. Id. In 

addition, “[t]he court shall impose any conditions that are mandatory under subsection (a) of 

Section 110-10. The court may impose any conditions that are permissible under subsection (b) of 

Section 110-10. The conditions of release imposed shall be the least restrictive conditions or 

combination of conditions necessary to reasonably ensure the appearance of the defendant as 

required or the safety of any other person or persons or the community.” (Emphases added.) Id.

§ 110-5(c).

¶ 14 We first address defendant’s argument that the legislature’s modifications to the Code 

reflect that drug testing is no longer a permissible pretrial release condition. Thus, section 110-

10(b) is at issue, with defendant noting that the provision for drug testing has been removed from 

the statute, which now provides, 
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“Additional conditions of release shall be set only when it is determined that they are 

necessary to ensure the defendant’s appearance in court, ensure the defendant does not 

commit any criminal offense, ensure the defendant complies with all conditions of pretrial 

release, prevent the defendant’s unlawful interference with the orderly administration of 

justice, or ensure compliance with the rules and procedures of problem solving courts. 

However, conditions shall include the least restrictive means and be individualized. 

Conditions shall not mandate rehabilitative services unless directly tied to the risk of 

pretrial misconduct. Conditions of supervision shall not include punitive measures such as 

community service work or restitution.” Id. § 110-10(b). 

The statute next identifies permissive conditions that may be imposed; none include drug testing. 

Id. However, subsection (b)(9) provides: “(9) Such other reasonable conditions as the court may 

impose, so long as these conditions are the least restrictive means to achieve the goals listed in 

subsection (b), are individualized, and are in accordance with national best practices as detailed in 

the Pretrial Supervision Standards of the Supreme Court.” Id. § 110-10(b)(9). Accordingly, while 

defendant is correct that the statute was modified, and courts are to remain mindful of the limited 

impact that drug testing has on ensuring a defendant’s appearance or public safety, we read the 

plain language of section 110-10(b)(9) as continuing to allow drug testing (as well as other 

reasonable conditions) as a permitted pretrial release condition, so long as the other parameters of 

section 110-10(b)(9) are satisfied. See Stoecker, 2014 IL 115756, ¶ 21 (“[t]he most reliable 

indicator of the legislative intent is the language in the statute, which must be given its plain and 

ordinary meaning”). Indeed, although the statute expressly prohibits the court from imposing 

certain types of conditions, such as rehabilitative services, community service work, or restitution, 

the legislature did not similarly expressly prohibit the court from imposing drug testing in 
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appropriate cases and where necessary to achieve section 110-10(b)’s overarching goals. Thus, 

under the maxim of construction, inclusio unius est exclusio alterius, where section 110-10 lists 

conditions that may not be imposed, the inference is that conditions not included in that list are 

permissible (again, so long as the rest of section 110-10(b) is satisfied). See, e.g., McHenry County 

Defenders, Inc. v. City of Harvard, 384 Ill. App. 3d 265, 282 (2008). 

¶ 15 As to defendant’s alternative argument, we disagree that the court erred in finding that the 

State established by clear and convincing evidence that drug testing was necessary. Clear and 

convincing evidence is “ ‘that quantum of proof that leaves no reasonable doubt in the mind of the 

fact finder about the truth of the proposition in question.’ ” In re Tiffany W., 2012 IL App (1st) 

102492-B, ¶ 12 (quoting In re John R., 399 Ill. App. 3d 778, 781 (2003)). Clear and convincing 

evidence is “more than a preponderance of the evidence and not quite approaching the beyond-areasonable-doubt standard necessary to convict a person of a criminal offense.” People v. Craig, 

403 Ill. App. 3d 762, 768 (2010). Here, the court found, consistent with section 110-10(b), that the 

State met its burden of establishing that pretrial release conditions were necessary to ensure, in 

part, that defendant not commit any criminal offenses while on pretrial release and that he complies 

with all of the conditions of pretrial release. Defendant does not dispute the State’s proffer 

concerning his criminal history, which reflects two prior drug convictions and two prior DUI 

convictions, nor the court’s imposition of the pretrial release conditions that he not consume

intoxicating or controlled substances without a prescription or commit additional criminal 

offenses. As such, the condition that defendant submits to drug testing reasonably ensures both 

that defendant does not commit another criminal offense and that he complies with all conditions 

of pretrial release, i.e., not using intoxicating or controlled substances. Indeed, as defendant was 

before the court, in part, on a drug charge, the drug testing was directly relevant to the pending 
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charge. Defendant was also before the court on a warrant for failure to appear in another case, 

which itself concerned driving while on a suspended license, reflecting that he did not always 

comply with court orders and conditions. Thus, it was reasonable for the court to deem it necessary 

to impose upon defendant an additional condition that would serve to ensure his compliance with 

the remaining conditions. We cannot say that the trial court improperly considered the statutory 

factors or that its ultimate determination on pretrial release was an abuse of discretion. 

¶ 16 In sum, the court’s imposition of drug testing, under the facts of this case, was not 

unreasonable. 

¶ 17 III. CONCLUSION

¶ 18 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed. 

¶ 19 Affirmed. 
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People v. Morales, 2024 IL App (2d) 230597

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 23-CF-2656; 

the Hon. Salvatore LoPiccolo Jr., Judge, presiding. 

Attorneys

for

Appellant:

James E. Chadd, Carolyn R. Klarquist, and Christina M. 

O’Connor, of State Appellate Defender’s Office, of Chicago, for 

appellant.

Attorneys

for

Appellee:

Patrick Delfino and David J. Robinson, of State’s Attorneys 

Appellate Prosecutor’s Office, of Springfield, for the People.