2021 IL App (1st) 180218-U

No. 1-18-0218 

Order filed January 29, 2021 

SIXTH DIVISION

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).

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee, 

 v. 

JAMES McCOMB, 

Defendant-Appellant.

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Appeal from the

Circuit Court of 

Cook County. 

Nos. 38741320 

 38741321 

 38741322 

 38741323 

Honorable 

Devlin Schoop, 

Diann K. Marsalek, and

Marina E. Ammendola,

Judges, presiding.

JUSTICE HARRIS delivered the judgment of the court.

Justice Connors and Justice Oden Johnson concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s conviction for transportation of alcohol in a motor vehicle is reversed 

where the evidence was insufficient to establish the presence of alcoholic liquor in 

his vehicle. 
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¶ 2 Following a bench trial, defendant James McComb was found guilty of driving under the 

influence (DUI), aggravated speeding, improper lane change, and transportation of alcohol, and 

was sentenced to 12 months’ supervision on each count, to be served concurrently.

1 On appeal, 

defendant contends his conviction for transportation of alcohol should be reversed where the 

evidence only established there were empty alcohol containers, and no actual alcohol, inside his 

vehicle. We reverse.

¶ 3 Defendant was ticketed for one count each of DUI (625 ILCS 5/11-501(a)(2) (West 2014)), 

aggravated speeding (625 ILCS 5/11-601.5(a) (West 2014)), improper lane usage (625 ILCS 5/11-

709(a) (West 2014)), and illegal transportation of alcohol (625 ILCS 5/11-502(a) (West 2014)). 

As defendant challenges only his conviction on the illegal transportation of alcohol count, we recite 

only those facts necessary to decide this appeal.

¶ 4 At trial, Illinois State Police trooper Sniady testified he was on duty, in uniform, and 

driving a marked police vehicle at approximately 2:30 a.m. on May 18, 2015.2 As he traveled 

westbound on I-290, he saw a silver vehicle traveling over the speed limit, “between the first and 

second lane from the right shoulder,” and “onto the right shoulder itself.” He determined the 

vehicle was driving 84 miles per hour in a 55 mile per hour zone.

¶ 5 Sniady pulled the vehicle over and approached the driver side. The driver was defendant, 

whom Sniady identified in court. Defendant was alone in the vehicle. While speaking with 

defendant, Sniady noticed that his speech was “thick-tongued and slurred” and his “eyes were 

glassy and bloodshot.” Sniady also “detected a strong odor of alcoholic beverage emanating from 

1 Different judges presided at the trial, motion to reconsider, and sentencing hearings.

2 Sniady did not provide his first name. 
No. 1-18-0218 

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the vehicle.” Sniady asked defendant if he had been drinking, and defendant stated he had one 

Long Island iced tea approximately one hour prior. Defendant exited his vehicle at Sniady’s 

request, and Sniady “detected an odor of alcoholic beverage emanating from his exhaled breath.” 

Sniady administered the Horizontal Gaze Nystagmus test and observed defendant exhibit six of 

six possible clues of alcohol consumption. As defendant walked with a crutch, Sniady did not 

administer the two standing tests.

¶ 6 Sniady found “two cans of beer in the front compartment” of defendant’s vehicle; “[o]ne 

was an empty can of Icehouse, another one was an empty can of Miller Genuine Draft.” In the 

same area, he also found “multiple plastic cups;” Sniady testified he did not recall if there was any 

liquid in the cups, and that “the liquid was gone.” The empty cans and the cups had “a strong odor 

of an alcoholic beverage emanating from within.” Sniady did not inventory the cans or the cups, 

and did not document them in his police report. 

¶ 7 Sniady testified a video recording from his police vehicle’s camera accurately depicted this 

incident. The video depicts a vehicle, which Sniady identified as defendant’s vehicle, traveling 

and then pulling over on the shoulder of an expressway after Sniady activates the lights and sirens 

of his vehicle. Sniady is seen approaching the driver side of defendant’s vehicle and speaking to 

the driver, necessarily defendant. Defendant exits the vehicle when ordered by Sniady to do so, 

and stands on the shoulder of the expressway. Sniady questions defendant on the shoulder and 

conducts field sobriety tests. 

¶ 8 On two separate occasions, Sniady opens the passenger side door of defendant’s vehicle 

and leans inside it. The second time, Sniady returns to his vehicle and places two aluminum cans 

on the hood of his police vehicle. He holds the cans up to the camera and says that one is “Ice 
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House” and the other is “Miller Genuine Draft.” The labels on the cans are not legible, but the can 

Sniady says is “Miller Genuine Draft” is crushed. When Sniady is talking to defendant, defendant’s 

responses are difficult to hear. Sniady is apparently repeating defendant’s answers, and at one point 

states defendant said he drank one Long Island an hour before the stop. 

¶ 9 Sniady transported defendant to the Westchester police station. After reading the Warnings 

to Motorist, defendant refused a breathalyzer or alternate chemical testing for DUI. Based on all 

of Sniady’s observations and interaction with defendant, it was his opinion defendant was driving 

under the influence of alcohol. 

¶ 10 On cross-examination, Sniady testified he did not recall what defendant said about the 

contents of the cups, and that he did not recall whether there was any liquid in the cups. 

¶ 11 Defendant made a motion for directed finding on the DUI count, which the court denied. 

¶ 12 Defendant testified he was driving home on I-290 when he was pulled over by a trooper. 

He was driving 55 miles per hour, did not make any unsafe movements between lanes, and did not 

almost cause an accident. When the trooper asked if he had consumed any alcohol, defendant said 

he had a Long Island. The trooper asked defendant about the cups in his vehicle, and he “said 

people have been sitting – you know, those cups have been there. It’s been stepped on. It’s, like, a 

sleeve of cups with maybe six of them that’s all together, and they were smashed.” 

¶ 13 On cross-examination, defendant testified he drank a “sample cup” of Long Island iced tea 

at dinner at a friend’s house the night he was pulled over. At the police station, Sniady did not ask 

him if he wanted to take a breathalyzer test.
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¶ 14 The court found defendant guilty on all counts, stating it found Sniady highly credible, and 

defendant fairly credible, but with notable inconsistencies. Regarding the transportation of alcohol 

count, the court stated: 

“I do believe that the empty can of alcohol with the combination that the – the empty beer 

cans along with the trooper’s testimony about the alcohol on your breath and the glassy 

eyes, I do believe that’s significant circumstantial evidence to find you guilty. *** 

I do believe that you consumed that beer. That’s why it was empty. *** The mere 

fact that you have a beer can in your car empty with the testimony of your breath and the 

manner in which you’re driving, all combined, is circumstantial evidence that you were 

under the influence, you were drinking. And if I believe, based on those circumstances, 

that you actually consumed the beer that was in that can, then yes, it was full. I can infer 

that reasonably, and therefore, you’re transporting it.” 

¶ 15 Defendant was sentenced to 12 months’ supervision on all four counts, to run concurrently. 

¶ 16 On appeal, defendant only challenges his conviction for transportation of alcohol. 

Specifically, defendant contends his conviction should be reversed where the evidence only 

established there were empty containers, not actual alcohol, in his vehicle. 

¶ 17 The parties disagree on the standard of review. Defendant claims that, because the relevant 

facts are not in dispute, we must review his conviction de novo as the question is whether those 

facts establish a violation of the statute under which he was convicted. The State argues defendant 

is challenging the sufficiency of the evidence supporting his conviction for transportation of 

alcohol. We agree with the State. De novo review applies “only when the facts are not in dispute 

and the defendant’s guilt is a question of law.” People v. Curry, 2018 IL App (1st) 152616, ¶ 16. 
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The facts were disputed at trial in this case. Defendant denied he committed any traffic violations, 

and denied he drank any alcohol other than one “sample cup” of Long Island iced tea 

approximately an hour before he was pulled over. He admitted there were cups in his vehicle, but 

claimed they were “crushed,” and was silent as to the beer cans. His guilt is not a question of law, 

as he is challenging the sufficiency of the evidence to prove an element of transportation of alcohol, 

which is whether there was alcoholic liquor in his vehicle. 

¶ 18 Because this is a challenge to the sufficiency of the evidence, we review “ ‘whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.’ ” People v. Davidson, 

233 Ill. 2d 30, 43 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We draw all 

reasonable inferences in favor of the State (Davidson, 233 Ill. 2d at 43), and we do not retry 

defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). We will not reverse a conviction “unless 

the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s 

guilt.” People v. Givens, 237 Ill. 2d 311, 334 (2010). 

¶ 19 To prove defendant guilty of transportation of alcohol, the State had to establish he 

transported, carried, possessed or had “any alcoholic liquor within the passenger area of any motor 

vehicle upon a highway in this State except in the original container and with the seal unbroken.” 

625 ILCS 5/11-502(a) (West 2014). “ ‘Alcoholic liquor’ includes alcohol, spirits, wine and beer, 

and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer, and capable of 

being consumed as a beverage by a human being.” 235 ILCS 5/1-3.05 (West 2014). 

¶ 20 We find the State did not prove defendant transported alcoholic liquor beyond a reasonable 

doubt. “[S]ection 11-502(a) turns on the actual presence of alcohol, not merely the container.” 
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People v. Bailey, 2019 IL App (3d) 180396, ¶ 27. The State introduced no evidence the open beer 

cans or cups in defendant’s vehicle contained any substance when defendant was driving that 

vehicle on the highway, let alone contained an alcoholic liquor. On the contrary, Sniady testified 

both beer cans were empty. He also testified the cups were empty, then claimed he did not recall 

whether there was liquid in them. No part of Sniady’s testimony established there was alcoholic 

liquor in defendant’s vehicle while he was driving on a highway. The evidence established only 

the presence of empty containers, and the presence of empty alcohol containers does not constitute 

a violation of section 11-502. See People v. Angell, 184 Ill. App. 3d 712, 717 (1989) (“possession 

of empty beer cans is not proscribed by [section 11-502].”). 

¶ 21 A review of the limited authority on this issue reveals no cases in which a conviction for a 

violation of section 11-502(a) has been affirmed when the State introduced no evidence of any 

kind of substance in the suspected alcoholic container. See, e.g., People v. Miller, 339 Ill. App. 3d 

990, 993 (2003) (conviction reversed where officer found empty container of alcohol outside the 

driver side door of the defendant’s vehicle and an unopened can of beer inside the vehicle). Rather, 

a conviction under section 11-502(a) appears to require evidence that some type of substance, 

which a factfinder could reasonably conclude was alcohol, was present in the suspected alcohol 

container. See, e.g., Angell, 184 Ill. App. 3d at 714-18 (officer recovered two beer cans containing 

liquid he identified as beer); People v. Hood, 343 Ill. App. 3d 1245, 1257 (2003) (officer recovered 

a beer can partially full of a substance that smelled like beer); People v. Gore, 115 Ill. App. 3d 

1054, 1056-57 (1983) (officer recovered can labeled “Pabst Blue Ribbon Beer” with liquid in it). 

Because the State introduced no such evidence in this case, it failed to prove beyond a reasonable 

doubt that defendant committed the offense of transportation of alcohol.
No. 1-18-0218 

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¶ 22 The State argues “sufficient circumstantial evidence supported the trial court’s reasonable 

inference that defendant had recently drunk the beer from [the] beer cans and thus had been in 

violation of section 11-502(a).” We disagree. The evidence did support an inference that alcohol 

had been present in the cans and cups at some point, as Sniady testified they smelled like alcohol.

However, the evidence did not support a conclusion, beyond a reasonable doubt, that the cans and 

cups contained alcohol while defendant was “upon a highway.” See 625 ILCS 5/11-502(a) (West 

2014). In a prosecution for transportation of alcohol based on empty containers, “there are too 

many uncertainties to find defendant was proven guilty of this charge beyond a reasonable doubt.” 

Miller, 339 Ill. App. 3d at 993. Accordingly, we reverse defendant’s conviction for transportation 

of alcohol. 

¶ 23 For the foregoing reasons, we reverse defendant’s conviction for transportation of alcohol.

¶ 24 Reversed.