No. 2-09-0685 Filed: 11-29-10

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_____________________________________________ _ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

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_____________________________ _ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Du Pa ge Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 09--DT--1751 ) JO HN P . BR UNI, ) Honorab le ) Daniel P. Guerin, Defend ant-App ellant. ) Judge , Pres idin g.

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______________________________________________________________________ _ _ JUSTICE HUDSON de livered

the opinion of the c ourt: After being a rrest ed for driving u

nder the influenc e of alc ohol (DUI ) (625 I LCS 5/11--501(a)(2) (West 2008 )), def endant, John P. Brun

i, refused chemical testing to determine the content of alcohol in his bloo d. His refus al result ed in the s tatutory

summary suspension of his driving privileges. See 625 IL CS 5/11--501.1(d) ( West 2008). Defendant now appeals from an order de nyi ng his pe tition to re scind the

suspension. We aff

irm. Defend ant

was arr ested after b eing st opped at a so briet y checkpoi nt. At the he aring o n defend ant's r escissi on petition, Officer Pogvara of the L isle police department testified that he encountered

defendant at the checkpoint at ab o ut 1 a.m. on May 2, 2009. He notice d nothing unusual about the

manner i n which de fendant

operate d his vehicle. Pogvara gre eted defendant and asked him for his driver's license and insurance c ard. Defendant provided both items . Pogvara testified that def endant's lice nse was valid and that his insurance was up to date. Pogvar a askedNo. 2--09--0685

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defendant where he was coming from. De fendant responded that he had been at a ka raoke party

at

a friend' s house. D efenda nt added t

hat ther e had be en a kar

aoke co ntest and

th at he had won it. While speaking

with defenda nt, Pogvara noticed a "faint" odor of alcohol coming from the passeng er compartment

of defe ndant 's vehicle. He also noticed that defendant's ey

es were "glossy," meaning (in Pogvar a's wor ds) "[t]ha t there w as like a

haze over

them" a nd that " [t]hey

appear ed glossy in nature." Pogvara asked defendant if he had been drinking. Defendant re sponded that he had had one beer. Pogvar

a then as ked defe

ndant if h e would ste

p out of the

car and perfor m field sobriety

tests. Defendant

complied. Based on defendant's pe rformance of the tests, Pogvara concluded that defenda nt was und

er the in fluence

of alcohol, and he

placed d efenda nt under a rrest. Defendant

argues that the period during which he was detained at the c heckpoint for

initial screening before being a sked to step out o f his vehicle and to perform field sobriety tests was

unreasonably

long and that the detention was therefore unlawful. During direct examination of

the arresting officer by

defendant's attorney, the following exchange occurre d: "Q. So *** from the t

ime y ou initiall y spoke with

[defenda nt] until y ou had him walk over to where y

ou were about to conduct the field sobriety tests, approximately how much time had lapsed? A. I c ouldn't s ay

accura tely , may be possibl

y a matter of a few min

utes. Q. Would y

ou say over or u nder ten minutes? A. Probab ly u

nder ten minutes. Q. Over or under f

ive minute s? A. Probably under f

ive minutes."No. 2--09--0685

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Indetermining whether stopping motorists at a sobriety checkpoint in the absence of individualized suspicion

of wrongdoing is c onstitutionally permissib le, cour

ts have balanced the public interest

agains t the intru siveness to motorist s who are

stopped un

der a pa rticular sobriety checkpoint

program. See Michiga

n Depar tment of Sta

te Police v. Sitz , 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990). In Sitz , the Court assessed the intrusiveness of a

sobriety chec

kpoint stop partly in terms of its duration and intensity. Sitz , 496 U.S. at 452, 110 L. Ed . 2d at 421 , 110 S. Ct. at 248 6. Ci ting Si tz and People v. Bartley , 109 Ill. 2d 273 (1985), defendant a rgues that "the length of deten tion at a roa dblock tha

t has bee n found re asonable

is betwee

n fiftee n to twenty seconds." Defe ndant insi sts that, to pass cons titutional

muster, the "stop m

ust be ver y br ief as a general procedu re in tha t the stop c an be mea sured in a matter of

seconds r

ather th an mi nutes." Defend ant's relianc e on these decisions is misplaced. In Sitz , the Court noted that the average delay for each vehicle was 25 seconds. Sitz , 496 U.S. at 448 , 110 L. Ed. 2d at 419, 110 S. Ct. at 2484. In Bartley , our supreme court noted that motoris ts stopped at a driver's license checkpoint " were detained for only 15 to 20 seconds, as long a s there w as no nee d for add itio nal question ing ." (Emphasi s added.) Bartley , 109 Ill. 2d at 287-88; see also Commonwea lthv. Yastrop , 564 Pa. 338, 768 A.2d 3 18 (20 01) (u phol ding consti tutionality of roadblock wher e police stopped drivers for roughly 30 seconds each and detained for field tes ting only

those drivers who smelled of alcohol); State v. Leighton , 551 A.2d 116 (Me. 1 988) (uph

olding c onstitutionality

of roadblock whereeach

s top l asted for less than a minute unless the officer detected the odor of alcohol or saw an open container of alcohol in the vehicle). Neither Sitz nor Bartley places a ny a rbitrar y lim it onhow long

a motorist may be detained whe n an officer's observ ations during t he initial screen ing war rant a further investigation.No. 2--09--0685

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The Sitz Court was careful to note that the case involved " only th e initial stop of each motorist passi ng thro ugh a checkpoint and the associated preliminary questioning and observation by checkp oint office rs." Sitz , 496 U.S. at 450-51, 110 L. Ed. 2d at 420, 110 S. Ct. at 2485. Th e Court added that "[d]etention of particular motorists for more extensive field sobriety testing may require satisfaction of an

individu alized su spicion s tandard." Sitz , 496 U.S. at 451, 110 L. Ed. 2d at 420, 110 S. Ct. at 2485. The leading fourth amendment schol ar ha s stated that " 'the officer [conducting the sobriety che ckpoint stop] should

have an articula ble suspic ion that the

motorist is i ntoxicatedbefore detaining the motorist for an extended [DUI ] investigation.' " 5 W . LaFave , Search and Seizure §10.8(d), at 378 (4th ed. 2004), quoting Note, 71 Geo. L.J. 1457, 1486 (1983). When such a suspicion

exists, the detention is tantamount to an investigatory detention under Terry v. Ohio , 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which held that a police office r may effect a limited inv estiga

tory stop wher

e there exists a re asonable

suspicion , based u

pon spec ific and articula ble facts, that the person detained has committed or is about to commit a c rime . Accord Commonwea

lthv. Murphy , 454 Mass. 318, 325-26, 910 N.E.2d 281, 288 (2009) ("The only factor that distingu ishes a se condary

screen ing stop f rom the mor

e traditi onal Terry

stop *** is that the informationthat ga

ve rise to reasona ble suspicion was obtained from observations made during the brief initial suspicionless stop at the sobriety chec kpoint"). "[P]olice conduct occurring during a n otherwis e lawful seizure does not render the seizur

e unlawf ul unlessit ei ther u nreaso nably pro longs the duration

of the de tention or independ ently trigg ers the f

ourth amendment. " People v. Baldwin , 388 Ill. App. 3d 1028, 1033 (2009). Here , def endant argues that Pogvara unre asonably prolong ed the seizure. In particular , defendant takes issue with

the length of the interval from the moment he entere d the checkpoint untilNo. 2--09--0685

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he was asked

to exit his ve

hicle so that field s obriety tests could be administered. Pogvara testified that he could not accurately

say how much time elapse d. When asked whether this period was over or under 10 minutes, he testified that it was "probably " under 10 minutes. When asked whether it

was over or under f

ive minutes , he testif

ied that it was "pr obably " under

five minut

es. Thus, according to Pogvara's best recollection, defendant was most likely de tained less than five minutes before being a sked to submit to fi eld sobri ety testing. There is nothing in the record to sug gest that Pogvara eng aged in any

conduct that was not reasonably related to the objective of confirming or dispelling the suspic ion that de fendant might be

impair ed as a result of alcohol consumption. Alth ough def

endan t protests that Pogvara's "vag ue estimation of time cannot possibly rende r a roadblock stop 'brief,' " it was not the State's burden to

establish the brev ity o f the stop . Rather, it

was defenda

nt's bur den to est ablish that the stop was unreasonably prolonged. Cf. Peoplev. Pai ge , 385 Ill. A

pp. 3d 486, 490 (2008 ) (defe ndant bor

e burden of showin

g t hat roadblock was unreasonable). Accord

ingly , we find

that def endant ha s failed t

o esta blish that Pog vara unr

easonab ly prolonged the seizure. Defendant

also cha llenge s the rulin

g of the trial cou rt on the b asis that Pogvara did not have

a reasonable, articulable suspicion that he was under the influence of alcohol. Pogvara testified that defend ant's eyes we

re "glossy ." He further testified that he detected a f aint odor of alcohol coming fromthe passenger compartment of def endant's vehicle and that defenda n t had stated that he had consumed

one beer. Defendant first contends that "g lossy " (as op

posed to "glas sy" ) ey

es are n ot a sign of intoxication. As the St

ate point s out, howe

ver, the trial cou rt found t hat, in its experience, the terms are sometimes used i nterch angeabl y. Indeed, th ere is case la w to su pport the tr ial co urt's observation. In People v. Hood , 213 I ll. 2d 244 (2004 ), one witn ess de scrib ed the defend ant's eyesNo. 2--09--0685

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as "glas sy a

nd bloodshot" ( Hood , 213 Ill. 2d at 248), while another desc ribed his eyes a s "bloodshot and 'glossy' " ( Hood , 213 Ill. 2d at 249). Howeve r, in holdi ng that t he evide nce was sufficie nt to sustain the defe ndant' s convict

ion of re ckless homicide, the Hood court indicated that both

witnesses had testifi ed that the d efendant's eyes were "glassy and blood shot." Hood , 213 Ill. 2d at 263. Defendant

further argues that the faint odor of alcohol comin g f

rom the passenger compartment

of his vehicle, and his admission to Pogvara that he had one beer , indicate d only that he had consumed alcohol, not that he was under t he influence of alcohol. Because driving after consuming alcohol is not illeg al in itself (see People v. Brodeur , 189 Ill. App. 3d 936, 943 (1989) (Mc Laren, J., dissentin

g) (" Mere consumption o f alcoho lic beve rages does not e stablis h intoxication")), defendant insists that there was no basis

for a dmini ster ing f ield s obrie

ty tests . We

are not aware of any

Illinois decisions , nor h ave any been called to our attention, that address the propriety of administering field sobriety tests to amotorist stopped at a sobriety chec kpoint under circumstances similar to t hose pre sent h er e. However, this court has approved the administration of field sobriety tests based on similar indicia of intoxication following a stop for a routine traffic violation. In Village

of Li ncolnshir e v. Kelly , 389 Ill. App. 3d 881 (2009), the motorist was stopped for speed ing. Du ring th e offi cer's initial conversat ion with the

motorist, she exhibite d no proble ms with her speech and

was able to comply

with the officer's orders without any problems. However, the officer not ed a "strong " odor of alcohol and the motorist admitted having one glass of wine. Thereafter, the officer

asked the motorist to exit the car and perform field sobriety tests. Based on this evidence, we determined that the office r had a reasonable articulable suspicion that the mo torist had committed DUI and

thus the administration of the field sobriety tests was justified. Village of Lincolnshire , 389 Ill. App. 3d at 886-87.No. 2--09--0685

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Moreover, cases from other j urisdictions are instructive with respect to the circumstances under which the

administr

ation of f ield sobr iety tests to a motorist stoppedat a sobriety c heckpoint is warranted. In Commonwealth v. Bazinet , 76 Mass. App. Ct. 908, 924 N.E.2d 755 (2010), the court held that the "mere odor of alcohol" gives rise to reasonable suspicion warranting further detention of a motorist stopped at

a sobriety che ckpoint. The Bazinet court noted that the Supreme Judicial Co urt of Massachusetts had upheld the constitutionality of a checkpoint procedure unde r which a motorist would be subjected to further screening after the initial stop if the screening office r observed " 'any articulable sign of possibl e intoxi cation.' " Bazinet , 76 Mass. App. Ct. at 908-09, 924 N.E.2 d at 75 7, quo ting Murphy , 454 Mass. at 321, 910 N.E.2d at 285. The Bazinet court further noted that "[t]he [ Murphy ] court sai d that the 'odor o f alcoho l' was one of the 'clues of impaired operation' for

which the screening

officers were to check and w hich, if observed, would provide a basis for further screening and invest igation." Bazinet , 76 Mass. A pp. Ct. at 909, 924 N.E.2d at 757, quot ing Murphy , 454 Mass. at 320, 328, 910 N.E.2d at 284, 289. In Peopl e v. Ri zzo , 243 Mich. App. 151, 622 N.W.2d 3 19 (2000) , it was held that a strong odor of an into xicant on a

motoris t's bre ath, standing alone, is a sufficient basis for detaining the motorist to conduct field sobr iety testing. Rizzo , 243 Mich. App. at 152, 622 N.W.2d at 320-21. Becau se the arresting officer testified that the de f endant 's breath smelled strongly of alcohol, the Rizzo court rejected the defendant' s argument that the odor might have been " created by the consumption of desserts, candy , or mouthwash containing trace amounts of alcohol." Rizzo , 243 Mich. App. at 160, 622 N.W.2d at 324. The defendant further contend ed that the odor of alcohol

on her breath di d not ne cessar ily mean that

her blood

alcohol c ontent exc eeded the lega l limit. Althou gh the Rizzo court ag reed wit h the cont

ention, it held that in

order to detain a motorist fo rNo. 2--09--0685

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field sobriety tests, the office r "mer ely must have a r easonable suspicion that the motorist has consumedintoxicatin

g liquor , which ma

y ha ve affe cted the

motorist' s ability

to opera te a mo to r vehicle." Rizzo , 242 Mich. App. at 161, 622 N.W.2d at 325. In Thompson v . State , 303 Ark. 407, 797 S.W.2d 450 (1990), a police officer approached a parked vehicle occupied by

the defendant

and a woman. The defendant volunteered tha t he had been to a club an

d was tak ing his girlfriend home. Smelling alcohol on the defenda nt's breath, the officer asked the defendant to step out of the vehicle. The defendant stumbled and was unable to pe rform

a field sobriety test. The Thompson court reject ed the defend ant's argument that an unlawful seizure occurred when the office r approach ed his vehicle. After explaining that the encounter wa s consensual, the Thompson court stated: "The 'seizure' of [the defendant] occurred only after the

officer addressed [the defendant] and noti ced the odor of alcohol after [the defendant] volunteered that he ha d been at a club. Then, the officer had a reasonable suspicion that [the defe ndant] had committed or

was about to commit

a DWI and prop erly

asked him

to exit his car. " (Emphasis added.) Thompson , 303 Ark. at 410, 797 S.W.2d at 452. We are aware that

courts in Kansas and Ohio have reached the opposite result. See City of Hutchinsonv. Davenport , 30 Kan. App. 2d 1097, 54 P.3d 532 (2002) (smell of al cohol on defendant's breath while he was at police station because the police had "pic ked up" his daughter, combined with his false statement to an officer that he was walking--not driving--home , did notgive rise to a reasonable suspicion that defendant was intoxicated and too impaired to dr ive); State v. Dixon , No. 2000--CA--30 (Ohio App. December 1, 2000) ( unpublished) ("The mere detection of an odor of alcohol, unaccompanied by any basis, draw

n from the officer's experience or expertise, forNo. 2--09--0685

1 We note that

defenda nt has cite d severa

l Florida trial cou rt decisi ons. Bec ause the se decisions do not create precedent under F lorida law ( Wood v. Fraser , 677 So. 2d15, 19 (Fla. App. 1996)), we decline to consi der them

. -9- correlating

that odor with a level of

intoxication that wou

ld likely impair th e s ub je ct 's dr iv in g a bi li ty, is not enough to establish that the subject was driving under the influenc e" ); see a ls o State v. Spillers , No. 1504 (Ohio App. March 24, 2000) (unpublished). 1 We believe, however, that the decisions from M assach usett s, Mi chiga n, andArkansas cited above reflect the be tter view. Notwithstanding d efenda nt's ar gument t hat drivin g afte r consump tion of alc ohol is not in herentl y criminal , we concl ude th at defendant's admission that he had consumed a bee r, coupled with the offic er's testimony that he detected the odor of alcohol emanating from the passenger compartment of defendant's vehicle and the off icer's observation

that def endant's ey

es were "glossy," was sufficient to justify the relatively minor intrusion of re questing that a properly stopped motorist step outof a vehi cle to pe

rform fi eld sobri ety

tests. "Indeed, an officer faced with these fa cts would be derelict in his duties if he chose not to cond uct a further i nvestigatio n." Village of Plainfield v. Anderson , 304 Ill. App. 3d 338, 342 (1999); see also Village of Lincolnshire , 389 Ill. App. 3d at 887. Becau se we find that the cir cumstanc es here

were sufficien

t to crea te a rea sonable a

rticulab le suspicion that defendant was driving under the influenc e of alcohol, we affirm the judgment of the ci rc ui t c ou rt of

Du Pa ge Co un ty. Affirmed. BOWMAN and O'MAL

LEY, JJ., concur.