NO. 4-09-0878 Filed 11/1/10 

 IN THE APPELLATE COURT 

 OF ILLINOIS 

 FOURTH DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, 

 Plaintiff-Appellee, 

 v. 

DREW M. JACOBS, 

 Defendant-Appellant. 

 

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Appeal from 

Circuit Court of 

Champaign County 

No. 07DT625 

Honorable 

Charles McRae Leonhard, 

Judge Presiding. 

________________________________________________________________ 

JUSTICE TURNER delivered the opinion of the court:

In May 2009, a jury found defendant, Drew M. Jacobs, 

guilty of driving under the influence of alcohol and driving with 

an alcohol concentration of 0.08 or more. In October 2009, the 

trial court sentenced him to 24 months' conditional discharge. 

On appeal, defendant argues (1) evidence of chemical 

testing was improperly admitted, (2) the State failed to prove 

him guilty beyond a reasonable doubt, (3) the trial court should 

have entered judgment on the count of driving under the influence, (4) the State deprived him of a fair trial, and (5) the 

court erred in giving certain jury instructions. We affirm. 

I. BACKGROUND 

In September 2007, defendant was charged by citation 

with two counts of driving under the influence (625 ILCS 5/11-

501(a) (West 2006)). Defendant pleaded not guilty. 

In December 2007, defendant filed a petition to rescind 
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statutory summary suspension and a motion to quash arrest and 

suppress evidence. In April 2008, the trial court denied the 

petition and the motion. Defendant appealed, and this court 

affirmed the trial court's judgment. People v. Jacobs, No. 4-08-

0330 (April 15, 2009) (unpublished order under Supreme Court Rule 

23). 

In May 2009, defendant filed several motions in limine, 

asking the trial court to prohibit the State from proffering 

testimony pertaining to the horizontal gaze nystagmus (HGN) test 

and a preliminary breath test (PBT). The court allowed the 

motion regarding the HGN test and also allowed the motion as to 

the PBT, subject to the defense opening the door at trial. 

At defendant's jury trial, Monica Strandberg testified 

she was a trooper with the Illinois State Police. On September 

13, 2007, Strandberg was on routine patrol in Champaign County 

when she observed a white Ford with its "bright lights on." 

Strandberg stated it was a violation of the Vehicle Code to have 

"your high beams on within 500 feet of another vehicle," so she 

initiated a traffic stop at 2:50 a.m. As the driver of the Ford 

entered a parking lot, "the rear tire hit the curb." 

Trooper Strandberg approached the driver, identified as 

defendant, and noticed "he had a flush face" and "red and glossy 

eyes." She could also "smell a strong odor of an alcoholic 

beverage coming from his breath." When she asked defendant 
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whether he had been consuming alcohol, he responded he had two 

beers. Defendant did not have any trouble producing his driver's 

license and proof of insurance. 

Strandberg then asked defendant to exit the vehicle to 

perform field-sobriety tests. Defendant performed the nine-stepwalk-and-turn test, and Strandberg stated he did "fine." Defendant then performed the one-legged-stand test, and Strandberg 

considered his performance a failure because he "swayed slightly" 

and "raised his arms more than six inches past his side." She 

then placed defendant under arrest for driving under the influence of alcohol based on the strong smell of alcohol coming from 

his breath, his failure on the field-sobriety test, his flush 

face and red glassy eyes, and his "driving up over the curb." 

Trooper Strandberg transported defendant to the police 

station, issued him a citation, and read to him the warning to 

motorists. Defendant then agreed to take a Breathalyzer test. 

Strandberg testified she was certified to administer the test. 

She used the Intox EC/IR and testified to a logbook the police 

department maintains on the use of the machine. The test result 

showed 0.11 at 4 a.m. Strandberg then issued defendant a second 

citation for driving under the influence of alcohol over 0.08. 

The State played the tape of the stop to the jury. 

After the State rested its case, defense counsel moved for a 

directed verdict, which the trial court denied. 
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The defense then called Dr. Ronald Henson, who testified as an expert in impaired-driving enforcement, field-sobriety 

testing and blood- and breath-alcohol testing. Dr. Henson 

reviewed documents relating to defendant's arrest. After reviewing the video, Dr. Henson stated he did not notice any recognized 

cues that would indicate defendant did not perform the onelegged-stand test or the walk-and-turn test correctly. He then 

opined there existed a "disconnect" between defendant's performance and his 0.11 breath-alcohol reading. 

On rebuttal, Todd Savage testified he was a breathalcohol technician with the Illinois State Police. The trial 

court recognized him as an expert in the operation, maintenance, 

and repair of the EC/IR instrument. Savage stated he travels 

around to police agencies and sheriff's departments to make sure 

the EC/IR devices are accurate and working properly. Upon 

checking the devices for accuracy, he would note the results in a 

logbook. He checked the accuracy of the EC/IR at the Champaign 

County satellite jail on September 6, 2007, and again on October 

4, 2007. 

Following Savage's testimony, defense counsel moved for 

a directed verdict at the close of all the evidence, which the 

trial court denied. Following closing arguments, the jury found 

defendant guilty. 

In June 2009, defendant filed a posttrial motion, which 
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the trial court denied. In October 2009, the court entered 

judgment on the count of driving with a blood- or breath-alcohol 

concentration (BAC) of 0.08 or more (625 ILCS 5/11-501(a)(1) 

(West 2006)) and sentenced defendant to 24 months' conditional 

discharge. This appeal followed. 

II. ANALYSIS 

A. Chemical Testing 

Defendant argues the State improperly introduced the 

results of the Breathalyzer test in its case in chief by failing 

to provide a proper foundation that the device was tested regularly for accuracy and was working properly. We disagree. 

In determining the foundational requirements of breathtest results, our supreme court has noted as follows: 

"Such a foundation will include: (1) evidence that the tests were performed according 

to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the 

tests was certified by the Department of 

Public Health, (3) evidence that the machine 

used was a model approved by the Department 

of Health, was tested regularly for accuracy, 

and was working properly, (4) evidence that 

the motorist was observed for the requisite 
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20 minutes prior to the test and, during this 

period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that the 

results appearing on the 'printout' sheet can 

be identified as the tests given to the motorist." People v. Orth, 124 Ill. 2d 326, 

340, 530 N.E.2d 210, 216-17 (1988). 

Evidence that the Breathalyzer was regularly tested for 

accuracy is among the elements of the foundation required for the 

admission of the breath-test results. People v. Black, 84 Ill. 

App. 3d 1050, 1052, 406 N.E.2d 23, 24 (1980). A "police officer's testimony about the inspection of the [B]reathalyzer may be 

documented by introduction into evidence of the instrument 

logbook, which is a public or official record." People v. 

Boughton, 268 Ill. App. 3d 170, 173, 644 N.E.2d 471, 473 (1994); 

see also People v. Thomas, 200 Ill. App. 3d 268, 281, 558 N.E.2d 

656, 665-66 (1990) (finding copies of certification stamps and 

logbook entries, along with an officer's testimony of inspection 

dates, established proper foundation that Breathalyzer machine 

was reliable and accurate); People v. White, 167 Ill. App. 3d 

439, 442, 521 N.E.2d 563, 564 (1988) (finding logbook entries 

constituted official documents); People v. Hester, 88 Ill. App. 

3d 391, 395, 410 N.E.2d 638, 641 (1980) (holding "a page from the 

instrument log book is admissible to satisfy a foundation re-
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quirement requisite to the admission of breath[-]test results 

into evidence, namely, that the [B]reathalyzer was properly 

tested for accuracy and in proper working condition"). 

In the case sub judice, Trooper Strandberg testified 

that a logbook was maintained at the jail in relation to the 

breath-test device. Every time the device is used, the test 

subject's name is written down and the result entered. Over 

defense counsel's objections, Strandberg testified the device was 

required to be certified every 62 days and the certification 

listed in the logbook. She indicated the device had been certified as accurate by a state trooper on September 6, 2007, and 

again on October 4, 2007. The logbook entries were admitted into 

evidence. We find the State established a proper foundation 

through Trooper Strandberg that the device was tested regularly 

for accuracy and was working properly. See Hester, 88 Ill. App. 

3d at 395, 410 N.E.2d at 640 (finding even that "personal knowledge, as to the events and procedures summarized in the log, is 

not required of the testifying officer"). 

Defendant, however, argues the foundation testimony 

regarding the accuracy of a Breathalyzer instrument violated the 

confrontation clause of the United States Constitution in light 

of the Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. , 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009). 

The confrontation clause provides that "[i]n all 
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criminal prosecutions, the accused shall enjoy the right *** to 

be confronted with the witnesses against him." U.S. Const., 

amend. VI. This sixth-amendment right applies to the states 

through the fourteenth amendment. People v. Stechly, 225 Ill. 2d 

246, 264, 870 N.E.2d 333, 346 (2007). 

In Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 

320, 129 S. Ct. at 2530, the defendant was charged with distributing and trafficking cocaine. At trial, the prosecution "submitted three 'certificates of analysis' showing the results of 

the forensic analysis performed on the seized substances," 

including the weight of the seized bags and that the substance 

contained cocaine. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d 

at 320, 129 S. Ct. at 2531. The certificates were sworn to 

before a notary public by state lab analysts as required by 

Massachusetts law and were admitted as prima facie evidence of 

the composition, quality, and net weight of the contraband 

analyzed. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 320, 

129 S. Ct. at 2531. 

The defendant objected to the admission of the certificates and argued the Supreme Court's confrontation-clause 

decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 

177, 124 S. Ct. 1354 (2004), required the analysts to testify in 

person. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 320, 

129 S. Ct. at 2531. The objection was overruled, and a jury 
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found the defendant guilty. 

The Supreme Court noted the confrontation clause covers 

testimonial statements and "[a] witness's testimony against a 

defendant is thus inadmissible unless the witness appears at 

trial or, if the witness is unavailable, the defendant had a 

prior opportunity for cross-examination." Melendez-Diaz, 557 

U.S. at , 174 L. Ed. 2d at 320-21, 129 S. Ct. at 2531, citing 

Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 194, 124 S. Ct. at 

1365-66. Examples of testimonial statements include (1) ex parte

in-court testimony; (2) extrajudicial statements in formal 

testimonial materials such as affidavits, depositions, prior 

testimony, and confessions; (3) statements made under circumstances that would lead an objective witness reasonably to 

believe the statements would be available for use at a later 

trial; and (4) statements taken by police officers in the course 

of interrogations. Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at 

193, 124 S. Ct. at 1364. 

The Supreme Court found the certificates were "functionally identical to live, in-court testimony, doing 'precisely 

what a witness does on direct examination.'" (Emphasis omitted.) 

 Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 321, 129 S. Ct. 

at 2532, quoting Davis v. Washington, 547 U.S. 813, 830, 165 L. 

Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). The Court held 

that "under our decision in Crawford the analysts' affidavits 
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were testimonial statements, and the analysts were 'witnesses' 

for purposes of the Sixth Amendment. Absent a showing that the 

analysts were unavailable to testify at trial and that petitioner 

had a prior opportunity to cross-examine them, petitioner was 

entitled to '"be confronted with"' the analysts at trial." 

Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 321-22, 129 S. 

Ct. at 2532, quoting Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 

194, 124 S. Ct. at 1365. 

In his concurring opinion, Justice Thomas reiterated 

his view that "'the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, 

prior testimony, or confessions.'" Melendez-Diaz, 557 U.S. at 

___, 174 L. Ed. 2d at 333, 129 S. Ct. at 2543 (Thomas, J., 

concurring), quoting White v. Illinois, 502 U.S. 346, 365, 116 L. 

Ed. 2d 848, 865, 112 S. Ct. 736, 747 (1992) (Thomas, J., concurring in part and concurring in the judgment, joined by Scalia, 

J.). Justice Thomas joined the Court's opinion because the 

certificates were affidavits and therefore testimonial statements. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 333, 129 

S. Ct. at 2543 (Thomas, J., concurring). 

The Supreme Court also stated the analysts' affidavits 

did not qualify as official or business records. Melendez-Diaz, 

557 U.S. at , 174 L. Ed. 2d at 328, 129 S. Ct. at 2538. 
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"Business and public records are generally admissible absent 

confrontation not because they qualify under an exception to the 

hearsay rules, but because--having been created for the administration of an entity's affairs and not for the purpose of 

establishing or proving some fact at trial--they are not testimonial." Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 329, 

129 S. Ct. at 2539-40. The Court found the analysts' affidavits 

were testimony against the defendant because they were prepared 

specifically for use at trial. Melendez-Diaz, 557 U.S. at , 

174 L. Ed. 2d at 329-30, 129 S. Ct. at 2540. 

We note the Supreme Court did not hold "that anyone 

whose testimony may be relevant in establishing the chain of 

custody, authenticity of the sample, or accuracy of the testing 

device, must appear in person as part of the prosecution's case." 

 Melendez-Diaz, 557 U.S. at n.1, 174 L. Ed. 2d at 322 n.1, 

129 S. Ct. at 2532 n.1. Thus, in this case, the question becomes 

whether the testimony pertaining to the testing of the 

Breathalyzer for accuracy was testimonial in nature. 

We find the testimony and logbooks provided in this 

case as to the certification of the Breathalyzer were not testimonial and established a sufficient foundation that it was 

regularly tested and accurate. We also find our decision is not 

contravened by the Supreme Court's decision in Melendez-Diaz. We 

find support for this contention in a recent case from the Oregon 
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Court of Appeals. In State v. Bergin, 231 Or. App. 36, 39, 217 

P.3d 1087, 1088 (2009), the defendant argued the admission of 

certificates attesting to the accuracy of the Intoxilyzer was in 

error under Melendez-Diaz. The Oregon Court of Appeals disagreed 

and stated, in part, as follows: 

"The analyst certificates in Melendez-Diaz

were 'quite plainly affidavits,' that is, 

fact statements sworn before an officer authorized to administer oaths, and, for that 

reason, within the core class of testimonial 

statements described in Crawford. [Citation.] Intoxilyzer certificates of accuracy, 

on the other hand, are not sworn under oath. 

 Further, the analyst certificates in 

Melendez-Diaz served to prove directly a fact 

that is an element of the crime that the 

defendant was convicted of. Intoxilyzer 

certificates bear a more attenuated relationship to conviction: They support one fact 

(the accuracy of the machine) that, in turn, 

supports another fact that can establish 

guilt (blood[-]alcohol level). Finally, the 

Melendez-Diaz majority opinion emphasizes 

that[,] when an analyst swears to the result 
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of a substance test, he or she knows that it 

is for use at a specific later trial against 

a specific defendant. [Citation.] The substance that was subjected to analysis was 

seized from a particular defendant and the 

sole purpose of the test was for use against 

that defendant. Although Intoxilyzers produce evidence that is used only in criminal 

prosecutions or administrative hearings, the 

person who performs the test of a machine's 

accuracy does so with no particular prosecutorial use in mind, and, indeed, there is no 

guarantee that the machine will ever, in 

fact, be used." (Emphases in original.) 

Bergin, 231 Or. App. at 40-41, 217 P.3d at 

1089. 

The certifications of accuracy at issue here differ 

from the affidavits in Melendez-Diaz and do not establish an 

element of the offenses. The certifications were not compiled 

during the investigation of a particular crime and do not 

establish the criminal wrongdoing of defendant. Cf. People v. 

McClanahan, 191 Ill. 2d 127, 133, 729 N.E.2d 470, 474 (2000) 

(finding unconstitutional as violative of confrontation clause a 

statute that allowed for the introduction of lab reports in lieu 
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of actual testimony as prima facie evidence of the contents of 

the substance at issue as the reports, inter alia, were not 

business records because they were prepared during the course of 

criminal investigations and requested by the State in anticipation of prosecutions). Instead, the certification does nothing 

more than establish the machine had been tested and was working 

properly. Thus, the evidence was not testimonial and its introduction did not violate defendant's right to confront witnesses. 

B. Sufficiency of the Evidence 

Defendant argues the State failed to prove him guilty 

beyond a reasonable doubt. We find this issue forfeited. 

"'A reviewing court is entitled to have 

issues clearly defined with pertinent authority cited and cohesive arguments presented 

[citation], and it is not a repository into 

which an appellant may foist the burden of 

argument and research [citation]; it is neither the function nor the obligation of this 

court to act as an advocate or search the 

record for error.'" People v. Williams, 385 

Ill. App. 3d 359, 368, 895 N.E.2d 961, 968 

(2008), quoting Obert v. Saville, 253 Ill. 

App. 3d 677, 682, 624 N.E.2d 928, 931 (1993). 

Points not raised in the defendant's initial brief are forfeited 

and cannot be raised in the reply brief. People v. Patel, 366 
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Ill. App. 3d 255, 268, 851 N.E.2d 747, 760 (2006). 

In his initial brief, defendant cites the relevant 

standard of review and then goes on to summarize eight cases from 

the 1960s and 1970s without making an argument on the issue. 

Defendant states the prior appellate court decisions would be 

helpful as we "independently review" the evidence. However, 

defendant has failed to develop his argument and cannot do so in 

his reply brief. Thus, defendant has forfeited review of this 

issue on appeal. 

C. Judgment on the Count of Driving With a BAC of 0.08 or More 

Defendant argues the trial court should have entered 

judgment on the count of driving under the influence of alcohol 

(625 ILCS 5/11-501(a)(2) (West 2006)). Defendant cites this 

court's decision in People v. Kizer, 365 Ill. App. 3d 949, 962, 

851 N.E.2d 266, 276 (2006), which vacated, without discussion, 

the conviction for driving with a BAC of 0.08 or more and affirmed the conviction for driving under the influence of alcohol. 

 Defendant offers no argument on how the trial court erred here 

or how the Kizer decision requires this court to grant his 

requested relief. We find no error. 

D. Prosecutorial Questions and Closing Remarks 

Defendant argues he was denied a fair trial as a result 

of the prosecutor's improper questioning of witnesses and closing 

argument. We disagree. 

"Every defendant is entitled to fair trial free from prejudicial comments by 
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the prosecution." People v. Young, 347 Ill. App. 3d 909, 924, 807 N.E.2d 1125, 1137 

(2004). A prosecutor can also overstep his bounds by conduct, including the improper 

questioning of witnesses. Young, 347 Ill. App. 3d at 925, 807 N.E.2d at 1138. 

Defendant argues Trooper Strandberg gave testimony on the HGN test in 

violation of the motion in limine. During the prosecutor's questioning of Strandberg, the 

following colloquy took place: 

"Q. What was the first test you asked the [d]efendant 

to perform? 

A. The horizontal gaze nystagmus--er, the nine[-

]step[-]walk[-]and[-]turn test. 

Q. The nine[-]step[-]walk[-]and[-]turn test. Can you 

describe for the jury what that is?" 

A violation of a ruling on a motion in limine will constitute grounds for a 

mistrial "only when the violation effectively deprived the defendant of his right to a fair 

trial." People v. Phillips, 383 Ill. App. 3d 521, 547, 890 N.E.2d 1058, 1081 (2008). "On 

appeal, the defendant must show that the prejudicial effect on the jury resulting from the 

violation of the motion in limine was so great as to constitute reversible error." People v. 

Davis, 223 Ill. App. 3d 580, 592, 585 N.E.2d 214, 222 (1992). We find no reversible 

error here as the prosecutor did not ask Strandberg about the HGN test and the remark 

appears to have been made in passing. 

Defendant also argues error occurred when Strandberg testified she "read 

Miranda to him." Defense counsel objected. Again, this remark was made in passing 

and not at the direction of the prosecutor. We find no error. 
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Defendant focuses most of his argument on the prosecutor's crossexamination of Dr. Henson. During his testimony, the following colloquy took place: 

"MR. LARSON [(prosecutor)]: I apologize to the 

Court. All right. Have you, yourself, ever been under the 

influence of alcohol, Doctor? 

MR. KIRCHNER [(defense counsel)]: Objection. 

THE COURT: The objection's sustained. The 

question's stricken. You may proceed, Mr. Larson. 

* * * 

Q. So you have observed other people who you have 

known to be under the influence of alcohol before? 

A. Yes. It's [a] common tactic to use videotapes in 

training. And they do such at the Police Training Institute 

today. 

Q. And to go along with that, have you, yourself, ever 

been under the influence of alcohol? 

MR. KIRCHNER: Objection. The Court's already 

ruled on this. 

THE COURT: The objection's sustained. It's not a 

relevant inquiry, and I don't believe the inquiry would be of 

any assistance to the jury in resolving the issues in the case. 

 And accordingly, the question's once again stricken. The 

jury's instructed to disregard it. Mr. Larson, you may other-
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wise proceed with your cross-examination." 

"Generally, the prompt sustaining of an objection by a 

trial judge is sufficient to cure any error in a question or 

answer before the jury." People v. Alvine, 173 Ill. 2d 273, 295, 

671 N.E.2d 713, 723 (1996). While questions about whether Henson 

had ever been under the influence of alcohol were not relevant 

here, we find the trial court cured any prejudicial impact at the 

time of the objection. Moreover, the court instructed the jury 

that it was to disregard testimony that was refused or stricken. 

Defendant argues the prosecutor tried to discredit 

Henson by asking him if it was true that "other courts in other 

counties in this State have not qualified [him] as an expert in 

EC/IR breath test matters." Henson stated that was untrue. 

After defense counsel objected and requested a bench conference, 

the prosecutor stated he had a "reference to Bridgeview Courthouse in Cook County" where Henson was disqualified as an expert 

in a specified case. After further discussion, the trial court 

sustained the objection, ordered the question stricken, and 

instructed the jury to disregard the question. Again, any error 

was cured by the court's actions. See People v. Redd, 173 Ill. 

2d 1, 28-29, 670 N.E.2d 583, 597 (1996). 

Defendant also complains of remarks made by the prosecutor during closing arguments. "A prosecutor has wide latitude 

in making a closing argument and is permitted to comment on the 
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evidence and any fair, reasonable inferences it yields." People 

v. Glasper, 234 Ill. 2d 173, 204, 917 N.E.2d 401, 419 (2009). A 

reviewing court "will find reversible error only if the defendant 

demonstrates that the improper remarks were so prejudicial that 

real justice was denied or that the verdict resulted from the 

error." People v. Runge, 234 Ill. 2d 68, 142, 917 N.E.2d 940, 

982 (2009). "Error is cured by sustaining an objection, admonishments[,] and jury instructions." People v. Alksnis, 291 Ill. 

App. 3d 347, 358, 682 N.E.2d 1112, 1120 (1997). 

Defendant argues the prosecutor improperly commented on 

defendant's decision not to testify when he said Strandberg was 

"the only witness [the jury] heard from today that was actually 

there" at the time of the field-sobriety tests. "A criminal 

defendant has a fifth[-]amendment right not to testify as a 

witness in his or her own behalf, and the prosecutor is forbidden 

to make direct or indirect comment on the exercise of that 

right." People v. Bannister, 232 Ill. 2d 52, 88, 902 N.E.2d 571, 

593 (2008); U.S. Const., amend. V. To determine whether a 

comment improperly highlights defendant's decision not to testify, courts look at "whether the reference was intended or 

calculated to direct the jury's attention to the defendant's 

neglect to avail himself of his legal right to testify." Bannister, 232 Ill. 2d at 88, 902 N.E.2d at 594. 

In looking at the entire arguments, the prosecutor's 
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statements regarding Strandberg being the only testifying witness 

who observed the field-sobriety tests did not seek to direct the 

jury's attention to defendant's decision not to testify. 

Strandberg was the State's sole witness in its case in chief, and 

Henson was the only witness for the defense. The prosecutor's 

remarks sought to highlight that Strandberg was the only one who 

observed defendant firsthand after the stop as Henson was not 

present. We find no error. 

Defendant argues the prosecutor improperly argued 

defendant could "clearly hold his liquor," which explained why 

there might have been a "disconnect" with his physical actions 

during the stop and his blood-alcohol level. However, a prosecutor may comment on any inferences the evidence yields. Runge, 

234 Ill. 2d at 142, 917 N.E.2d at 982. Moreover, jurors are 

often instructed that they are to consider the evidence in light 

of their own observations and experiences. See People v. Hopp, 

209 Ill. 2d 1, 17, 805 N.E.2d 1190, 1200 (2004), citing Illinois 

Pattern Jury Instructions, Criminal, No. 1.01[10] (4th ed. 2000). 

 The statement here was a legitimate comment on the evidence and 

a matter of common knowledge such that the jurors could utilize 

their experiences in life to decide whether defendant was guilty 

of the offenses. We find no error. 

Defendant also argues the prosecutor attacked Dr. 

Henson on rebuttal by calling him a "peacock" and a "hired gun." 
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 Defense counsel objected to the "peacock" characterization, and 

the trial court overruled the objection finding it a comment on 

demeanor. We find no error. See People v. Nitz, 143 Ill. 2d 82, 

120, 572 N.E.2d 895, 912 (1991) (finding it "a fair comment on 

the evidence to argue that a witness is believable because of 

[his] demeanor while testifying"). 

During his rebuttal argument, the prosecutor noted the 

pay Dr. Henson received for his expert testimony and referred to 

him as a "hired gun." While the prosecutor's comment was error 

(see People v. Johnson, 208 Ill. 2d 53, 110, 803 N.E.2d 405, 438 

(2003) (noting it was "error to refer to defense counsel as a 

'hired gun'")), the trial court ordered the comment stricken and 

instructed the jury that it should not be considered in arriving 

at a verdict. Moreover, the court instructed the jury that 

closing arguments are not evidence and arguments not based on 

evidence were to be disregarded. Accordingly, the court sufficiently cured the error. 

Defendant sets forth other comments or questions that 

were either not objected to at trial or were sustained and 

stricken by the trial court. We find he was not denied a fair 

trial. 

E. Jury Instruction 

Defendant argues the trial court erred by giving 

Illinois Pattern Jury Instructions, Criminal, No. 23.30 (4th ed. 
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2000) (hereinafter IPI Criminal 4th). We disagree. 

The instruction at issue states, in part, as follows: 

"If you find that at the time the defendant drove a vehicle that the amount of alcohol concentration in the defendant's blood or 

breath was 0.08 or more, you may presume that 

the defendant was under the influence of 

alcohol. You never are required to make this 

presumption. It is for the jury to determine 

whether the presumption should be drawn. You 

should consider all of the evidence in determining whether the defendant was under the 

influence of alcohol. This presumption, 

however, has no application to the offense of 

driving with an alcohol concentration of 0.08 

or more. Therefore, you should not consider 

this presumption in your deliberation on the 

offense of driving with an alcohol concentration of 0.10 or more." IPI Criminal 4th No. 

23.30. 

Our supreme court has found the presumption did not violate a 

defendant's constitutional rights as it was a permissive presumption and not a mandatory one. See People v. Hester, 131 Ill. 2d 

91, 101, 544 N.E.2d 797, 802 (1989). 
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The decision to give certain jury instructions rests 

with the trial court, and that decision will not be reversed on 

appeal absent an abuse of that discretion. People v. Lovejoy, 

235 Ill. 2d 97, 150, 919 N.E.2d 843, 872 (2009). Defendant 

argues the trial court should not have given the instruction at 

issue here or, if it did, the jury should have been instructed 

that it was required to find "beyond a reasonable doubt" that 

defendant's BAC was 0.08 or more before it presumed he was under 

the influence of alcohol. 

We find the instructions given to the jury, taken as a 

whole, properly instructed the jury on the State's burden of 

proof. The instruction on driving under the influence required 

the State to prove defendant was under the influence beyond a 

reasonable doubt. Thus, defendant has not shown the trial court 

erred in giving the permissive-presumption instruction. 

III. CONCLUSION 

For the reasons stated, we affirm the trial court's 

judgment. As part of our judgment, we award the State its $75 

statutory assessment against defendant as costs of this appeal. 

Affirmed. 

MYERSCOUGH, P.J., and KNECHT, J., concur. 
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