2015 IL App (4th) 140696 

NO. 4-14-0696 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v. 

JACKIE V. HARRIS, 

Defendant-Appellant. 

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Appeal from 

Circuit Court of 

Champaign County 

No. 13CF1750 

Honorable 

Richard P. Klaus, 

Judge Presiding.

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

 Presiding Justice Pope and Justice Harris concurred in the judgment and opinion. 

OPINION

¶ 1 Following an April 2014 stipulated bench trial, defendant, Jackie V. Harris, was 

convicted of one count of aggravated driving under the influence (DUI) of alcohol and one count 

of aggravated driving with a blood alcohol concentration (BAC) of greater than 0.08 in violation 

of statute. 625 ILCS 5/11-501(a), (d)(2)(D) (West 2012). The trial court sentenced defendant to 

13 years' imprisonment. Defendant appeals, arguing (1) the trial court erred in finding defendant 

guilty beyond a reasonable doubt; (2) the court erred in refusing to suppress evidence illegally 

seized; and (3) the court abused its discretion in sentencing defendant to 13 years' imprisonment. 

We affirm.

¶ 2 I. BACKGROUND

¶ 3 Count I of the information, filed October 18, 2013, charged defendant with 

aggravated DUI, alleging defendant drove a vehicle while under the influence of alcohol. Count 

FILED

May 18, 2015 

Carla Bender

4th District Appellate

Court, IL
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II, filed December 17, 2013, charged defendant with aggravated driving with a BAC greater than 

0.08, alleging defendant drove a vehicle with a BAC greater than 0.08. Both charges alleged 

defendant had four times previously committed DUI, making the charges Class 1 felonies 

pursuant to statute. 625 ILCS 5/11-501(d)(2)(D) (West 2012). 

¶ 4 After denying defendant's pretrial motion to suppress his BAC, the trial court held 

a stipulated bench trial based on a stipulation of facts drafted by the State and signed by defense 

counsel. The trial court found defendant guilty beyond a reasonable doubt on both charges. 

Defendant then filed a posttrial motion for a new trial and a motion to vacate the conviction and 

enter a judgment of not guilty notwithstanding the verdict. The court denied both motions and 

sentenced defendant to 13 years' imprisonment following a sentencing hearing. Defendant filed 

a motion to reconsider his sentence, which the court also denied. 

¶ 5 A. The Underlying Events 

¶ 6 On the evening of October 3, 2013, Cameron Garney called 9-1-1 to report a gray 

Volvo with Illinois license plate L845333 driving in the wrong lane of traffic and through stop 

signs without stopping. Urbana police officer Ronald Timmons received a dispatch at 9:35 p.m. 

concerning a possible DUI. Timmons found a gray Volvo in the reported area going 

approximately 10 miles per hour. Timmons attempted to initiate a traffic stop and activated his 

siren multiple times as he followed the Volvo. The Volvo entered the wrong lane of traffic, 

veered back into the proper lane, and came to a halt. Timmons approached the vehicle and

knocked on the window to get defendant's attention. 

¶ 7 Upon initiating contact with defendant, Timmons observed the following 

indicators of impairment: defendant had coordination issues when trying to remove the keys 

from the vehicle's ignition; defendant spoke in a soft mumble; defendant smelled strongly of 
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alcohol and had bloodshot eyes; defendant admitted drinking two beers; defendant lacked the 

basic dexterity to retrieve his driver's license and insurance without concentrated effort; and 

defendant had trouble following questions and answering appropriately. Timmons asked 

defendant to perform field sobriety tests and defendant agreed, but he advised the officer he had 

problems with the right side of his body due to a stroke, necessitating the use of a cane. 

Timmons explained and demonstrated the finger-to-thumb test before asking defendant to 

perform the test. After defendant was told to begin the test, he counted to four while touching 

the tips of his fingers to his tongue. Timmons again explained the test and defendant performed 

the test, touching his fingers to his thumb slowly and counting out of sequence. 

¶ 8 Defendant performed the ABC test with no issues. Finally, Timmons asked 

defendant to count backward from 77 to 54. "The defendant started with the test but quickly 

started mumbling. He recited some random numbers, some of which were not in the sequence 

requested or even in a counting manner." Timmons performed no further field sobriety tests 

because defendant was unable to stand or balance. 

¶ 9 Urbana police officers Shaun Cook and Matthew McKinney arrived at the scene 

at about 9:54 p.m. Timmons advised the officers he believed defendant was under the influence 

of alcohol. McKinney noticed the defendant smelled of alcohol, had bloodshot eyes, and had 

problems balancing. McKinney and Timmons arrested defendant and McKinney transported 

defendant to Carle Foundation Hospital at 10:10 p.m. Once there, McKinney wrote defendant a 

DUI citation and then read defendant the warning to motorist. He explained the chemical tests to 

be conducted and "defendant indicated he understood and was willing to provide the samples." 

At 11:31 p.m., Julie Hankins took a blood sample from defendant. At 11:36 p.m., Hankins took 
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a urine sample from defendant. Ultimately, these samples showed defendant had a BAC of 

0.303. 

¶ 10 At 11:43 p.m., McKinney advised defendant of his rights pursuant to Miranda v. 

Arizona, 384 U.S. 436 (1966). Thereafter, defendant admitted he ate dinner around 5 p.m. and 

began drinking around 8 p.m. He stated he consumed three or four beers. He stated he was on 

his way to Merry Ann's Diner for breakfast. McKinney transported defendant to the Champaign 

County jail, where defendant was booked and given copies of his DUI citation and the warningto-motorist form.

¶ 11 B. Pretrial Motion To Suppress 

¶ 12 Prior to the stipulated bench trial, defendant filed a motion to suppress evidence 

of his BAC. Defendant argued no exigent circumstances justified a warrantless blood draw, and 

McKinney did not obtain a warrant for the blood test. Because the body naturally metabolizing

alcohol does not present a per se exigency, nothing justified an exception to the warrant 

requirement. Defendant also argued he did not consent to the blood test and, even if he did 

consent, any consent was invalid as it was not informed consent nor was it voluntary consent. 

Because the warning to motorist did not inform the defendant the results of the blood test could 

be used against him in a criminal trial, his consent was not informed. 

¶ 13 At a hearing on the motion to suppress, defendant testified he was given a copy of 

the warning to motorist but no one explained the results of the blood test could be used against 

him in a criminal prosecution. He testified he was "[j]ust following orders" when he agreed to 

the testing, and he felt he had no choice in the matter. On cross-examination, defendant testified 

he did not tell the nurse or the officer he did not want the blood test or the urine test. 
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¶ 14 McKinney testified he arrived at the scene after Timmons performed the field 

sobriety tests. He noticed defendant smelled of alcohol and had slurred speech. He arrested 

defendant for DUI and took defendant into custody. McKinney then placed defendant in the 

back of the squad car and took him to Carle Foundation Hospital. McKinney testified he 

provided defendant with the warning to motorist and Cook provided a lay explanation of the 

contents of the warning. McKinney further testified he did not recall explaining to defendant the 

results of the tests could be used against him in a criminal prosecution. 

¶ 15 The trial court found the only discrepancy in the testimony was whether defendant 

received an oral explanation of the warning to motorist. The court also found defendant's 

testimony, both on direct and cross, showed he consented to the testing. The court denied the 

motion to suppress. Following the court's ruling, defense counsel told the court, "There's a very 

high percent, chance that this case will be presented to you as a stipulated bench trial."

¶ 16 C. Stipulated Bench Trial and Posttrial Motions

¶ 17 The parties presented the trial court with a 35-paragraph stipulation. Of the 35 

paragraphs, 34 began with either the phrase "That if called as a witness, [witness] would [state, 

testify, indicate]" or the phrase "That if called to testify, [witness] would [state, testify, indicate]" 

followed by the facts summarized in Part I, A, of this disposition. No paragraph stipulated to the 

sufficiency of the evidence. 

¶ 18 After reading the stipulation, the trial court proceeded to admonish defendant in 

accordance with Illinois Supreme Court Rule 402 (eff. July 1, 2012). The court found the 

stipulation was entered into knowingly and voluntarily. Ultimately, the court found defendant 

guilty of both charges beyond a reasonable doubt. 
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¶ 19 Defendant filed two posttrial motions, one for a new trial and one for a judgment 

of not guilty notwithstanding the verdict. Defendant reiterated his suppression argument, i.e., the 

blood test, performed without a warrant and without consent, was an illegal search. He further 

argued the stipulation contained only hypothetical statements witnesses might make if called to 

testify and was an insufficient and inappropriate basis for a conviction. The court denied both 

motions. 

¶ 20 D. Sentencing

¶ 21 The presentence investigation report indicated defendant's previous DUI 

convictions. The first DUI occurred in May 1988; the second in October 1990; the third 

sometime in 1997; and the fourth in March 1998. His intensive probation for the 1990 DUI was 

revoked in 1991, with no explanation in this record as to the reasons for revocation. He was 

ordered to complete substance-abuse treatment in connection with the 1997 DUI. Probation for 

that offense was revoked; however, the date and circumstances of the revocation are unclear 

from the record. He was ordered to obtain a substance-abuse evaluation in connection with the 

March 1998 DUI. Probation for that DUI was revoked in 1999 for failure to report and obtain a 

substance-abuse evaluation and defendant was sentenced to 30 months' imprisonment. In 

connection with a 2004 misdemeanor domestic-battery charge, defendant was ordered to obtain a 

substance-abuse evaluation and follow all treatment recommendations. The presentence 

investigation report indicates defendant complied with the requirement. 

¶ 22 Prior to a sentencing hearing, defendant submitted eight letters for mitigation 

evidence. Psychologists from the Department of Veterans Affairs hospital (VA) wrote letters to 

confirm defendant voluntarily enrolled in the Substance Abuse Rehabilitation Program in early 

December 2013. The letters confirmed he successfully completed the entire six-week intensive 
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outpatient program, was an active and willing participant, and offered pertinent insights and 

questions during the program. He continued attending outpatient aftercare treatments twice a 

week until his incarceration for the charges in this case.

¶ 23 A different psychologist wrote a letter confirming defendant sought his care in 

October 2013. Defendant reported having run out of his antidepressant medications due to an 

issue with the VA and through no fault of his own. The letter noted the possibility defendant 

relapsed because his depression returned without his medications. 

¶ 24 Letters from various friends and family indicated defendant served in the military 

for 14 years and had struggled with alcoholism for many years. Sometime in the late 1990s, 

defendant entered into substance-abuse treatment and completed inpatient treatment in 2003. He 

achieved and maintained sobriety for more than 10 years. During that time, defendant enrolled 

in community college and eventually graduated with a bachelor's degree from Eastern Illinois 

University. Upon graduation, he was immediately accepted into a master's program, which he 

had not completed. 

¶ 25 In 2012, defendant's older brother, Gregory, was diagnosed with cancer. 

Defendant was Gregory's main caretaker, driving him to appointments and caring for him until 

his death in March 2013. Defendant took Gregory's death hard, and his sister's letter indicates 

this loss contributed to defendant's relapse. Defendant also owns his own home and regularly 

volunteers at the Salvation Army. Multiple neighbors wrote letters indicating defendant is a 

dependable and respectful neighbor. Defendant also takes care of his elderly mother, driving her 

to doctor's appointments and running errands for her due to her failing health. 

¶ 26 Additionally, four witnesses testified in mitigation at defendant's sentencing 

hearing. First, the Reverend Cypress Hughes testified he advised defendant on his education, 
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first at community college and later when defendant enrolled at Eastern Illinois University. 

Hughes testified he talked to defendant regularly, sometimes multiple times a day. He testified 

defendant is a compassionate, interesting, decent person. Second, Robert Sally testified he had 

served in the military with defendant and defendant was dedicated to his education and believes 

strongly in helping people. Third, Michael Angel testified he had known defendant for 43 years. 

Defendant's father was an alcoholic, who eventually passed away due to that disease. Angel 

testified Gregory was instrumental in helping defendant achieve and maintain sobriety in the late 

1990s. Angel testified defendant maintained his sobriety for a time after Gregory's death, but 

also attributed this loss to defendant's relapse. Finally, defendant's neighbor and significant 

other, Kathleen Golding, testified. Golding described defendant as "responsible and 

conscientious, good hearted, and generous." In her opinion, defendant is a useful, contributing 

member of society and his family, especially his mother, depends on his support. 

¶ 27 The State argued defendant's past criminal history shows multiple opportunities to 

address his substance-abuse problems. The State also noted the prior interventions with the 

criminal justice system failed to deter defendant from driving drunk. The State asked for a 

sentence of 11 years' imprisonment. Defense counsel highlighted defendant's substantial period 

of sobriety, his ailing health, his network of community support, and his own voluntary efforts to 

achieve sobriety following this DUI. Defendant asked for a sentence between four and seven 

years. The court sentenced defendant to 13 years' imprisonment, with two years' mandatory 

supervised release and a $6,000 fine. Thereafter, the court denied defendant's motion to 

reconsider the sentence. 

¶ 28 This appeal followed. 

¶ 29 II. ANALYSIS
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¶ 30 On direct appeal, defendant argues (1) the trial court erred in finding defendant 

guilty beyond a reasonable doubt; (2) the court erred in refusing to suppress evidence illegally 

seized; and (3) the court abused its discretion in sentencing defendant to 13 years' imprisonment. 

Specifically, defendant contends the parties stipulated only to what the witnesses, if called, 

would testify and did not stipulate as to the evidence in the case. Because they stipulated only to 

conditional statements, defendant argues the trial court did not have any evidence of the 

underlying facts sufficient to convict him beyond a reasonable doubt. Defendant also argues the 

warrantless blood test violated his fourth-amendment rights, no exception to the warrant 

requirement is applicable, and the evidence of his BAC should have been suppressed. 

Alternatively, defendant argues his consent was uninformed and therefore involuntary and 

invalid as an exception to the warrant requirement. Finally, defendant argues the court abused its 

discretion in sentencing him to an excessive term of 13 years' imprisonment. 

¶ 31 A. Stipulated Bench Trial

¶ 32 For decades, courts in Illinois have grappled with stipulated bench trials. See, 

e.g., People v. Rowell, 229 Ill. 2d 82, 890 N.E.2d 487 (2008); Thornton v. Illinois Founders 

Insurance Co., 84 Ill. 2d 365, 418 N.E.2d 744 (1981); People v. Stepheny, 56 Ill. 2d 237, 306 

N.E.2d 872 (1974); People v. Manuel, 242 Ill. App. 3d 20, 609 N.E.2d 995 (1993); People v. 

Sullivan, 72 Ill. App. 3d 533, 391 N.E.2d 241 (1979). A stipulated bench trial is attractive 

because it provides a defendant the benefits and convenience of a guilty plea, yet preserves any 

pretrial objections, such as a motion to suppress, for appellate review. People v. Horton, 143 Ill. 

2d 11, 22, 570 N.E.2d 320, 325 (1991). However, if a stipulated bench trial amounts to a guilty 

plea, any nonjurisdictional pretrial objections are forfeited on appeal. Horton, 143 Ill. 2d at 22, 

570 N.E.2d at 325. The supreme court has held there are two specific circumstances in which a 
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stipulated bench trial is tantamount to a guilty plea: "(1) the State presents its entire case by 

stipulation and defendant fails to preserve a defense; or (2) the stipulation concedes that the 

evidence is sufficient to support a guilty verdict." (Emphases in original.) People v. Clendenin, 

238 Ill. 2d 302, 324, 939 N.E.2d 310, 323 (2010). 

¶ 33 1. Evidence Before the Trial Court

¶ 34 The majority of Illinois cases involve the question whether a stipulated bench trial 

is tantamount to a guilty plea. However, here defendant sets forth a rather novel argument 

regarding what constitutes evidence from stipulated testimony in what appears to be a stipulated 

bench trial. Defendant argues the only evidence before the court consists of the fact that various 

witnesses would testify if called. Defendant further argues the substance of the testimony is not 

in evidence before the court because defendant did not stipulate to the truth of the underlying 

statements. Defense counsel phrased the argument before the trial court as follows: 

"The evidence before you right now consists only of what 

is before you in the stipulation, and *** the stipulation I think is a 

little unusual in that it says it presents the following stipulation of 

facts: *** that if these various witnesses were called they would 

state the following. So the question then becomes, based upon the 

stipulation before you, do you have evidence before you as to what 

they would say or simply what a witness if called would state. 

There is a difference between *** stipulating as to the evidence in 

the case and stipulating as to what a witness[,] if called[,] would 

testify." (Emphasis added.) 
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¶ 35 While we agree a difference exists between stipulating as to the evidence in a case 

and stipulating as to what a witness would testify, we emphatically disagree the latter stipulation 

removes the substance of a witness's testimony from the evidence a trial court may consider in a 

stipulated bench trial. As an initial matter, and contrary to defendant's argument, we note the 

language used in the stipulation is not unusual at all. Many cases discuss stipulations to 

testimony a witness, if called, would give. See, e.g., Clendenin, 238 Ill. 2d at 308, 939 N.E.2d at 

314 (A portion of the stipulation read, " '[i]f called as a witness, [the detective] would testify 

***.' "); People v. Woods, 214 Ill. 2d 455, 461, 828 N.E.2d 247, 251 (2005) (The stipulation 

began, " '[i]f called to testify, [the witness] would be qualified as an expert *** and would testify 

***.' "); People v. Hare, 25 Ill. 2d 321, 323, 185 N.E.2d 178, 179 (1962) ("The record discloses 

that defense counsel stipulated to what certain witnesses would testify if they were present in 

court."); People v. Echavarria, 362 Ill. App. 3d 599, 602, 840 N.E.2d 815, 819 (2005) (Fourth 

District: "The parties then stipulated, if called as a witness, John Martin would testify ***."). 

While none of these cases called for consideration of the implication of the conditional 

statement, using the phrase "if called" or "if present" before setting forth the stipulated witness 

testimony is clearly a common practice and does not warrant the scrutiny defendant requests. 

¶ 36 Defendant argues the "potential facts that might or could be before the trial 

court[,] *** dependent and conditioned upon the occurrence of another fact[,]" are an 

inappropriate basis for a finding of proof beyond a reasonable doubt. We disagree. Defendant 

stipulated to the admission of the State's summary of the testimony and did not present any 

further evidence. "Having not presented evidence to controvert the stipulated testimony, 

defendant may not now complain that this stipulated testimony was not worthy of consideration 

and that the court's judgment, based upon such consideration, was error." People v. Kane, 2013 
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IL App (2d) 110594, ¶ 19, 5 N.E.3d 737. Defendant is bound by the stipulation he entered into 

and if he wanted to challenge the weight or adequacy of the testimony, he should have done so 

before the trial court. See People v. Phillips, 217 Ill. 2d 270, 284, 840 N.E.2d 1194, 1202 (2005) 

("Since an evidentiary stipulation is, in effect, nothing more than an acknowledgement of what a 

witness would testify to if called, and a concomitant decision not to challenge the testimony the 

witness would give, a stipulation is not much different from a decision not to cross-examine." 

(Emphasis in original.)). See also United States v. Spann, 515 F.2d 579, 583 (10th Cir. 1975) 

("Of course, a stipulation as to the testimony of a witness would give if called, although it may 

constitute evidence of the facts covered, is not an admission of the truth of such testimony and 

does not prevent a party from attacking it as he might attack the testimony itself, had it been 

given."). Counsel cannot on one hand argue this proceeding was a genuine stipulated bench trial 

preserving appellate review of the suppression issue without actually going to trial, then turn 

around and argue on the other hand the nature of the stipulation is inappropriate for proof beyond 

a reasonable doubt. 

¶ 37 Stipulations should be construed to give effect to the intent of the parties, and 

stipulations are "binding and conclusive on the parties." People v. Early, 158 Ill. App. 3d 232, 

239, 511 N.E.2d 847, 852 (1987). See also People v. Baynes, 88 Ill. 2d 225, 239, 430 N.E.2d 

1070, 1076 (1981); People v. Calvert, 326 Ill. App. 3d 414, 419, 760 N.E.2d 1024, 1028 (2001). 

In the context of the record, the parties clearly intended to stipulate to the evidence in this case. 

Indeed, defense counsel initially brought the likelihood of a stipulated bench trial to the court's 

attention. By stipulating to the testimony, defense counsel placed the State in a position of 

believing the substance of the testimony was in evidence. "It is unlikely that the State would 

have agreed to [the witness's] stipulated testimony, and thereby forfeit the opportunity to place 
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the [witness] on the witness stand[,] *** had not the stipulation been intended to eliminate the 

need for defending this testimony against a challenge ***." Woods, 214 Ill. 2d at 474, 828 

N.E.2d at 259 (2005). Moreover, were we to adhere to defendant's position, stipulated bench 

trials would become get-out-of-jail-free cards. Any stipulation to a witness's testimonial 

evidence would be deficient under this view. This argument is untenable, and we hold 

stipulations to testimony a witness would give if called may properly form a basis for a finding 

of guilt beyond a reasonable doubt by a trial court in the course of a bench trial.

¶ 38 We note the stipulation did not have a paragraph stipulating to the sufficiency of 

the evidence; in which case it would have forfeited, that is, procedurally defaulted, all 

nonjurisdictional issues. Counsel properly alerted the trial court to defendant's objection to the 

sufficiency of the stipulated testimony. Counsel also preserved defendant's constitutional claim, 

so this stipulated bench trial was not tantamount to a guilty plea and defendant has not forfeited

his claims on appeal. Clendenin, 238 Ill. 2d at 324, 939 N.E.2d at 323. 

¶ 39 2. Sufficiency of the Stipulated Testimony

¶ 40 We will briefly address the sufficiency of the stipulated testimonial evidence 

before the trial court. When addressing the sufficiency of the evidence, we view the evidence in 

the light most favorable to the State. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 

277 (1985). "The testimony of the arresting officer by itself may be sufficient to sustain a DUI 

conviction." People v. Hires, 396 Ill. App. 3d 315, 318, 920 N.E.2d 1083, 1085 (2009). It is not 

this court's function to retry a defendant who challenges the sufficiency of the evidence. People 

v. Beauchamp, 241 Ill. 2d 1, 8, 944 N.E.2d 319, 322 (2011). Rather, we must determine whether 

any rational trier of fact could have found the essential elements of the crime proved beyond a 

reasonable doubt. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277. 
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¶ 41 Driving under the influence of alcohol has two elements: (1) the defendant was 

driving or in physical control of an automobile; and (2) the defendant was under the influence of 

alcohol. 625 ILCS 5/11-501(a)(2) (West 2012). See also Hires, 396 Ill. App. 3d at 318, 920 

N.E.2d at 1085. DUI with a BAC over 0.08 also has two elements: (1) the defendant was driving 

or in physical control of an automobile; and (2) the defendant's BAC was over 0.08. 625 ILCS

5/11-501(a)(1) (West 2012). See also People v. Martin, 2011 IL 109102, ¶ 26, 955 N.E.2d 1058. 

"[P]rior DUI convictions do not constitute an element of an aggravated DUI charge." People v. 

Lush, 372 Ill. App. 3d 629, 634, 867 N.E.2d 1199, 1203 (2007). 

¶ 42 "A person is under the influence of alcohol when, as a result of drinking any 

amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to 

think and act with ordinary care." Illinois Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. 

2000). The stipulation reflected defendant's coordination issues and officers' observations that 

defendant smelled of alcohol, had bloodshot eyes, and had difficulty following questions and 

answering appropriately. Moreover, defendant's finger-to-tongue interpretation of the finger-tothumb sobriety test and his trouble with the backward-counting test further evidence his 

intoxication and inability to think and act with ordinary care. The stipulation also reflected 

defendant's BAC was 0.303. Defendant does not dispute he was driving a motor vehicle. A 

rational trier of fact clearly could have found defendant was under the influence of alcohol, his 

BAC was over 0.08, and he was driving or in actual physical control of a motor vehicle. The 

evidence was sufficient to find guilt beyond a reasonable doubt on both DUI charges. 

¶ 43 B. Suppression of Defendant's BAC 

¶ 44 In reviewing a trial court's denial of a motion to suppress, we apply the two-part 

standard of review the Supreme Court set forth in Ornelas v. United States, 517 U.S. 690, 699 
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(1996). See also People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d 187, 195 (2006) 

(adopting the two-part standard of review from Ornelas). We give deference to a trial court's 

findings of fact, unless such findings are against the manifest weight of the evidence. People v. 

Almond, 2015 IL 113817, ¶ 63. However, we review de novo the ultimate legal question of 

whether suppression of the evidence was required. People v. Gherna, 203 Ill. 2d 165, 175, 784 

N.E.2d 799, 805 (2003). 

¶ 45 The fourth amendment of the United States Constitution and article I, section 6, of 

the Illinois Constitution of 1970 both protect the right of individuals to be free from 

unreasonable searches. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. "[A] warrantless 

search of the person is reasonable only if it falls within a recognized exception." Missouri v. 

McNeely, 569 U.S. ___, ___, 133 S. Ct. 1552, 1558 (2013). Exceptions to the warrant 

requirement include, inter alia, exigent circumstances and consent. McNeely, 569 U.S. at ___, 

133 S. Ct. at 1559; People v. Hasselbring, 2014 IL App (4th) 131128, ¶ 42, 21 N.E.3d 762 (" 'A 

well-settled, specific exception to the fourth amendment's warrant requirement is a search 

conducted pursuant to consent.' " (quoting People v. Pitman, 211 Ill. 2d 502, 523, 813 N.E.2d 93, 

107 (2004) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)))). A blood test to 

determine a defendant's BAC is a search subject to the warrant requirement. McNeely, 569 U.S. 

at ___, 133 S. Ct. at 1558. See also Schmerber v. California, 384 U.S. 757 (1966). 

¶ 46 Defendant contends McNeely calls the constitutionality of Illinois's impliedconsent statute into question because (1) the only warning the statute requires does not inform a 

defendant the results of a blood test may be used in a criminal prosecution; and (2) the statute 

affords no right to refuse consent; therefore, any consent implied by the statute is constitutionally 

infirm because it is not informed and voluntary consent. Defendant assumes McNeely requires a 
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defendant's informed consent to qualify as an exception to the warrant requirement and argues 

the implied-consent statute does not produce such consent. However, McNeely requires no such 

thing. 

¶ 47 In McNeely, the Supreme Court considered whether the natural dissipation of 

alcohol in the bloodstream qualified as "a per se exigency that justifies an exception to the 

Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving 

cases." McNeely, 569 U.S. at ___, 133 S. Ct. at 1556. The Court found the metabolization of 

alcohol did not present a per se exigency allowing all nonconsensual, warrantless blood tests in 

DUI cases. McNeely, 569 U.S. at ___, 133 S. Ct. at 1563. While the metabolization of alcohol 

"may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so 

categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be 

determined case by case based on the totality of the circumstances." McNeely, 569 U.S. at ___, 

133 S. Ct. at 1563. The Supreme Court did not overrule Schmerber; rather, it upheld the 

application of the totality-of-the-circumstances test in determining whether an exigency exists, 

and it declined to find a categorical exception to the warrant requirement for blood tests in DUI 

cases. McNeely, 569 U.S. at ___, 133 S. Ct. at 1563. See also Hasselbring, 2014 IL App (4th) 

131128, ¶ 41, 21 N.E.3d 762. 

¶ 48 Again, McNeely addressed the very narrow question of whether a nonconsensual, 

warrantless blood test is categorically reasonable under the fourth amendment because the 

natural dissipation of alcohol in the bloodstream presents a per se exigency. McNeely, 569 U.S. 

at ___, 133 S. Ct. at 1556. That the Supreme Court declined to accept a categorical exigentcircumstances exception to the warrant requirement has no bearing on whether implied-consent

statutes are constitutional. Indeed, the splintered opinions in McNeely "make clear a majority of 
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the Supreme Court justices do not question the constitutionality of implied-consent statutes." 

People v. Gaede, 2014 IL App (4th) 130346, ¶ 26, 20 N.E.3d 1266. 

¶ 49 Consent to a blood test need only be voluntary in order to provide a valid basis 

for an exception to the warrant requirement. See, e.g., People v. Alvarado, 268 Ill. App. 3d 459, 

464, 644 N.E.2d 783, 787 (1994) (An intentional abandonment or relinquishment of a known 

right to refuse testing "did not apply to fourth amendment rights designed to protect the security 

of one's privacy against arbitrary intrusion by the police." (Emphasis in original.)). A 

defendant's consent is involuntary if " 'his will has been overborne and his capacity for selfdetermination critically impaired.' " Schneckloth, 412 U.S. at 225 (quoting Culombe v. 

Connecticut, 367 U.S. 568, 602 (1961)). "[C]ustody alone does not render consent involuntary 

***." Alvarado, 268 Ill. App. 3d at 467, 644 N.E.2d at 789. Factors surrounding the 

circumstances of the custody inform the voluntariness inquiry, including the time of the arrest, 

the use of force, whether " 'the police used the custody to make repeated requests for consent, 

and *** [whether] the custody was used as leverage, in the sense that the arrestee was told he 

would be released if he gave consent.' (Emphasis in original.)" Alvarado, 268 Ill. App. 3d at 

467, 644 N.E.2d at 789 (quoting 3 Wayne Lafave, Search & Seizure § 8.2(b), at 183 (2d ed. 

1987), at 61 (Supp. 1994)). 

¶ 50 In this case, the record gives no indication the police repeatedly requested 

defendant submit to a blood test or used undue influence to obtain defendant's consent. While 

McKinney provided defendant the warning to motorist, consent to a chemical test is not coerced 

and is not rendered involuntary merely by a law-enforcement officer's reading of the warning to 

motorist that accurately informs defendant of the consequences for refusing the test. The 

Supreme Court has addressed the issue of voluntariness with respect to implied-consent statutes. 
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South Dakota v. Neville, 459 U.S. 553 (1983). The supreme court of Minnesota discussed 

Neville in a case remanded to it by the United States Supreme Court for reconsideration in light 

of McNeely. State v. Brooks, 838 N.W.2d 563 (Minn. 2013). The circumstances in Brooks were 

remarkably similar to those in the case at bar. The defendant was taken to a hospital after having 

been arrested for DUI. At the hospital, the officer read him the implied-consent warning, which 

"informs drivers that Minnesota law requires them to take a chemical test for the presence of 

alcohol, that refusing to take a test is a crime, and that drivers have the right to talk to a lawyer 

before deciding whether to take a test." Brooks, 838 N.W.2d at 565. We find the Minnesota 

supreme court's reliance on Neville persuasive and quote from the Brooks decision: 

"The Supreme Court and our court have addressed the issue 

of coercion within the context of implied consent statutes. In 

[Neville], the Supreme Court held that a driver is not coerced into 

testifying against himself in violation of the Fifth Amendment 

when the State introduces his refusal to submit to chemical tests 

into evidence in a criminal trial for driving under the influence. 

The Court concluded that 'the State did not directly compel 

respondent to refuse the test, for it gave him the choice of 

submitting to the test or refusing.' [Citation.] While the 'choice to 

submit or refuse to take' the test may be a 'difficult' one, the Court 

held that the decision was 'not an act coerced by the officer.' 

[Citation.] We followed the analysis in Neville when we held that 

Minnesota's implied consent law, even though it makes it a crime 
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to refuse testing, also does not coerce a driver into testifying 

against himself. [Citation.]

Neville and McDonnell examine the issue of coercion 

within the context of the Fifth Amendment privilege against selfincrimination. But the question in both cases was whether the 

existence of a consequence for refusing to take a chemical test 

rendered the driver's choice involuntary. [Citations.] We address 

the same question in the context presented here when we examine 

whether Brooks's consent was voluntary, as the State argues, or 

whether it was coerced, as Brooks argues." Brooks, 838 N.W.2d at 

570. 

The officers in Neville did not warn the defendant the test results could be used against him in a 

criminal prosecution. Nonetheless, the Court held "that such a failure to warn was not the sort of 

implicit promise to forego use of evidence that would unfairly 'trick' [defendant] if the evidence 

were later offered against him at trial." Neville, 459 U.S. at 566. While the evidence at issue in 

Neville was the defendant's refusal to take the test, in dicta the Court stated, "Even though the 

officers did not specifically advise respondent that the test results could be used against him in 

court, no one would seriously contend that this failure to warn would make the test results 

inadmissible, had respondent chosen to submit to the test." Neville, 459 U.S. at 565 n.16. This is 

precisely what defendant contends in the case at bar.

¶ 51 Defendant contends Illinois law affords no right to refuse chemical testing. 

People v. Jones, 214 Ill. 2d 187, 199-200, 824 N.E.2d 239, 246 (2005). Presumably, defendant 

argues consent cannot be voluntary where there is no option to refuse. This argument fails to
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persuade us defendant's fourth-amendment rights were violated in this case. Defendant has not 

established McKinney did or said anything to indicate defendant had no right to refuse. The 

warning to motorist reads, in pertinent part, "you are warned: 1. If you refuse or fail to complete 

all chemical tests requested *** 2. If you submit to a chemical test(s) ***." (Emphases added.) 

The warning then informs a defendant of the various civil consequences attendant to a refusal to 

submit to testing. The warnings clearly indicate a choice between consenting to testing and 

withdrawing consent to testing. Nothing in the record indicates defendant withdrew his consent. 

Moreover, this court recently decided a similar claim, stating, "defendant withdrew his consent 

after his arrest. As a result, there was no warrantless, nonconsensual search. Thus, defendant's 

fourth-amendment rights could not have been violated. *** Because the implied-consent statute 

allowed defendant to refuse the police officer's request to take the warrantless chemical breath 

test, we cannot find the statute facially unconstitutional." Gaede, 2014 IL App (4th) 130346, 

¶ 24, 20 N.E.3d 1266. 

¶ 52 McKinney, by providing defendant with only the warning to motorist, did not 

coerce or force defendant to agree to the blood test such that defendant's consent was rendered 

involuntary. Defendant voluntarily consented to the blood test and clearly had a choice whether 

to consent to testing. We hold the consensual blood test conducted in this instance did not 

violate defendant's fourth-amendment rights and affirm the trial court's denial of defendant's 

motion to suppress. 

¶ 53 C. Abuse of Discretion in Sentencing 

¶ 54 When imposing sentence, a trial court must balance a defendant's rehabilitative 

potential with the seriousness of the offense. Ill. Const. 1970, art. 1, § 11; People v. Bien, 277 

Ill. App. 3d 744, 756, 661 N.E.2d 511, 520 (1996). Each sentencing decision must be based on 
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the particular circumstances of the case and the court must consider factors such as "the 

defendant's credibility, demeanor, general moral character, mentality, social environment, habits, 

and age." People v. Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209 (1999). The trial court, having 

observed the defendant and proceedings, is better able to consider these factors. Fern, 189 Ill. 2d 

at 53, 723 N.E.2d at 209. The trial court's sentencing decision is afforded substantial weight 

upon review, and a court of review must not substitute its judgment simply because it would 

have balanced the factors differently. Fern, 189 Ill. 2d at 53, 723 N.E.2d at 209. See also 

People v. Snyder, 2011 IL 111382, ¶ 36, 959 N.E.2d 656. 

¶ 55 The presentence investigation report reflects defendant's four prior DUI 

convictions. Aggravated DUI for a fifth DUI conviction is a nonprobational Class 1 felony. 625 

ILCS 5/11-501(d)(2)(D) (West 2012). The statute provides for a term of imprisonment of not 

less than 4 years and not more than 15 years. 730 ILCS 5/5-4.5-30 (West 2012). The State 

asked for an 11-year sentence. Defendant asked for a term of imprisonment between four and 

seven years in light of his potential for rehabilitation and other mitigating evidence. The trial 

court imposed a 13-year sentence. A sentence within the statutory range will not be deemed 

excessive, and will not be disturbed, unless it is greatly at variance with the spirit and purpose of 

the law or manifestly disproportionate to the nature of the offense. People v. Romero, 387 Ill. 

App. 3d 954, 978, 901 N.E.2d 399, 419-20 (2008). 

¶ 56 The trial court expressly stated it "considered the presentence report, the drug and 

alcohol evaluation, the documentary evidence submitted in mitigation, the testamentary [sic] 

evidence submitted in mitigation, [the] arguments, and the defendant's exercise of his right of 

allocation [sic]." The court also noted defendant's previous DUI convictions and defendant's 

previous chances to deal with substance-abuse issues. The court found it "blindingly obvious" 
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defendant was "a clear and present danger to the public because he will drink and drive, and I 

cannot permit that to be the case." 

¶ 57 Defendant argues the trial court did not actually consider the substantial 

mitigation evidence or defendant's potential for rehabilitation. A court is not required to 

expressly outline every factor it considers for sentencing and we presume the court considered all 

mitigating factors on the record in the absence of explicit evidence to the contrary. People v. 

Meeks, 81 Ill. 2d 524, 534, 411 N.E.2d 9, 14 (1980). There is no such explicit evidence the court 

did not consider the mitigating evidence here.

¶ 58 The trial court noted defendant had been previously convicted of DUI four times. 

Moreover, defendant had a BAC of 0.303, indicating, as the trial court stated, "either he was 

sober for a significant period of time prior to the time that he engaged in this behavior, in which 

case he was severely under the influence of alcohol, or what I am hearing is not accurate, which 

is that he wasn't sober for that period of time and he did have a tolerance for alcohol. It can't be 

both." The trial court considered defendant's period of sobriety and his struggle with alcoholism. 

The court also noted, "Clearly Mr. Harris has people who love him," indicating the court 

considered defendant's family ties and obligations. While we may not have weighed the factors 

in mitigation and aggravation in the same way the trial court here did, we cannot say the court 

abused its discretion in sentencing defendant to 13 years' imprisonment on his fifth felony DUI 

conviction. Simply because rehabilitative and mitigating factors are present does not entitle 

them to greater weight than the seriousness of the offense. People v. Coleman, 166 Ill. 2d 247, 

261, 652 N.E.2d 322, 329 (1995). The trial court did not abuse its discretion in imposing a 

within-guidelines sentence of 13 years' imprisonment. 

¶ 59 III. CONCLUSION
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¶ 60 For the reasons stated, we affirm the trial court's judgment. As part of our 

judgment, we grant the State its $75 statutory assessment against defendant as costs of this 

appeal.

¶ 61 Affirmed.