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

_________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Du Page County.

)

Plaintiff-Appellee, )

)

v. ) No. 09--DT--1751

)

JOHN P. BRUNI, ) Honorable

) Daniel P. Guerin,

Defendant-Appellant. ) Judge, Presiding.

_________________________________________________________________________________

JUSTICE HUDSON delivered the opinion of the court:

After being arrested for driving under the influence of alcohol (DUI) (625 ILCS

5/11--501(a)(2) (West 2008)), defendant, John P. Bruni, refused chemical testing to determine the

content of alcohol in his blood. His refusal resulted in the statutory summary suspension of his

driving privileges. See 625 ILCS 5/11--501.1(d) (West 2008). Defendant now appeals from an

order denying his petition to rescind the suspension. We affirm.

Defendant was arrested after being stopped at a sobriety checkpoint. At the hearing on

defendant's rescission petition, Officer Pogvara of the Lisle police department testified that he

encountered defendant at the checkpoint at about 1 a.m. on May 2, 2009. He noticed nothing

unusual about the manner in which defendant operated his vehicle. Pogvara greeted defendant and

asked him for his driver's license and insurance card. Defendant provided both items. Pogvara

testified that defendant's license was valid and that his insurance was up to date. Pogvara asked
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defendant where he was coming from. Defendant responded that he had been at a karaoke party at

a friend's house. Defendant added that there had been a karaoke contest and that he had won it.

While speaking with defendant, Pogvara noticed a "faint" odor of alcohol coming from the passenger

compartment of defendant's vehicle. He also noticed that defendant's eyes were "glossy," meaning

(in Pogvara's words) "[t]hat there was like a haze over them" and that "[t]hey appeared glossy in

nature." Pogvara asked defendant if he had been drinking. Defendant responded that he had had one

beer. Pogvara then asked defendant if he would step out of the car and perform field sobriety tests.

Defendant complied. Based on defendant's performance of the tests, Pogvara concluded that

defendant was under the influence of alcohol, and he placed defendant under arrest.

Defendant argues that the period during which he was detained at the checkpoint for initial

screening before being asked to step out of 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 occurred:

"Q. So *** from the time you initially spoke with [defendant] until you had him walk

over to where you were about to conduct the field sobriety tests, approximately how much

time had lapsed?

A. I couldn't say accurately, maybe possibly a matter of a few minutes.

Q. Would you say over or under ten minutes?

A. Probably under ten minutes.

Q. Over or under five minutes?

A. Probably under five minutes."
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In determining whether stopping motorists at a sobriety checkpoint in the absence of

individualized suspicion of wrongdoing is constitutionally permissible, courts have balanced the

public interest against the intrusiveness to motorists who are stopped under a particular sobriety

checkpoint program. See Michigan Department of State 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 checkpoint

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 2486. Citing Sitz and People v. Bartley, 109 Ill. 2d 273 (1985), defendant argues that "the

length of detention at a roadblock that has been found reasonable is between fifteen to twenty

seconds." Defendant insists that, to pass constitutional muster, the "stop must be very brief as a

general procedure in that the stop can be measured in a matter of seconds rather than minutes."

Defendant's reliance 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 motorists stopped at a driver's license checkpoint "were

detained for only 15 to 20 seconds, as long as there was no need for additional questioning."

(Emphasis added.) Bartley, 109 Ill. 2d at 287-88; see also Commonwealth v. Yastrop, 564 Pa. 338,

768 A.2d 318 (2001) (upholding constitutionality of roadblock where police stopped drivers for

roughly 30 seconds each and detained for field testing only those drivers who smelled of alcohol);

State v. Leighton, 551 A.2d 116 (Me. 1988) (upholding constitutionality of roadblock where each

stop lasted 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 any arbitrary limit on how long

a motorist may be detained when an officer's observations during the initial screening warrant a

further investigation.
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The Sitz Court was careful to note that the case involved "only the initial stop of each

motorist passing through a checkpoint and the associated preliminary questioning and observation

by checkpoint officers." Sitz, 496 U.S. at 450-51, 110 L. Ed. 2d at 420, 110 S. Ct. at 2485. The

Court added that "[d]etention of particular motorists for more extensive field sobriety testing may

require satisfaction of an individualized suspicion standard." Sitz, 496 U.S. at 451, 110 L. Ed. 2d

at 420, 110 S. Ct. at 2485. The leading fourth amendment scholar has stated that " 'the officer

[conducting the sobriety checkpoint stop] should have an articulable suspicion that the motorist is

intoxicated before 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 officer may

effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and

articulable facts, that the person detained has committed or is about to commit a crime. Accord

Commonwealth v. Murphy, 454 Mass. 318, 325-26, 910 N.E.2d 281, 288 (2009) ("The only factor

that distinguishes a secondary screening stop from the more traditional Terry stop *** is that the

information that gave rise to reasonable suspicion was obtained from observations made during the

brief initial suspicionless stop at the sobriety checkpoint"). "[P]olice conduct occurring during an

otherwise lawful seizure does not render the seizure unlawful unless it either unreasonably prolongs

the duration of the detention or independently triggers the fourth amendment." People v. Baldwin,

388 Ill. App. 3d 1028, 1033 (2009).

Here, defendant argues that Pogvara unreasonably prolonged the seizure. In particular,

defendant takes issue with the length of the interval from the moment he entered the checkpoint until
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he was asked to exit his vehicle so that field sobriety tests could be administered. Pogvara testified

that he could not accurately say how much time elapsed. 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 five minutes, he testified that it was "probably" under five minutes. Thus,

according to Pogvara's best recollection, defendant was most likely detained less than five minutes

before being asked to submit to field sobriety testing. There is nothing in the record to suggest that

Pogvara engaged in any conduct that was not reasonably related to the objective of confirming or

dispelling the suspicion that defendant might be impaired as a result of alcohol consumption.

Although defendant protests that Pogvara's "vague estimation of time cannot possibly render a

roadblock stop 'brief,' " it was not the State's burden to establish the brevity of the stop. Rather, it

was defendant's burden to establish that the stop was unreasonably prolonged. Cf. People v. Paige,

385 Ill. App. 3d 486, 490 (2008) (defendant bore burden of showing that roadblock was

unreasonable). Accordingly, we find that defendant has failed to establish that Pogvara unreasonably

prolonged the seizure.

Defendant also challenges the ruling of the trial court on the basis that Pogvara did not have

a reasonable, articulable suspicion that he was under the influence of alcohol. Pogvara testified that

defendant's eyes were "glossy." He further testified that he detected a faint odor of alcohol coming

from the passenger compartment of defendant's vehicle and that defendant had stated that he had

consumed one beer. Defendant first contends that "glossy" (as opposed to "glassy") eyes are not a

sign of intoxication. As the State points out, however, the trial court found that, in its experience,

the terms are sometimes used interchangeably. Indeed, there is case law to support the trial court's

observation. In People v. Hood, 213 Ill. 2d 244 (2004), one witness described the defendant's eyes
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as "glassy and bloodshot" (Hood, 213 Ill. 2d at 248), while another described his eyes as "bloodshot

and 'glossy' " (Hood, 213 Ill. 2d at 249). However, in holding that the evidence was sufficient to

sustain the defendant's conviction of reckless homicide, the Hood court indicated that both witnesses

had testified that the defendant's eyes were "glassy and bloodshot." Hood, 213 Ill. 2d at 263.

Defendant further argues that the faint odor of alcohol coming from the passenger

compartment of his vehicle, and his admission to Pogvara that he had one beer, indicated only that

he had consumed alcohol, not that he was under the influence of alcohol. Because driving after

consuming alcohol is not illegal in itself (see People v. Brodeur, 189 Ill. App. 3d 936, 943 (1989)

(McLaren, J., dissenting) ("Mere consumption of alcoholic beverages does not establish

intoxication")), defendant insists that there was no basis for administering field sobriety tests. We

are not aware of any Illinois decisions, nor have any been called to our attention, that address the

propriety of administering field sobriety tests to a motorist stopped at a sobriety checkpoint under

circumstances similar to those present here. 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 Lincolnshire v. Kelly, 389 Ill. App. 3d 881 (2009), the motorist was stopped

for speeding. During the officer's initial conversation with the motorist, she exhibited no problems

with her speech and was able to comply with the officer's orders without any problems. However,

the officer noted 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 officer had a reasonable articulable suspicion that the motorist

had committed DUI and thus the administration of the field sobriety tests was justified. Village of

Lincolnshire, 389 Ill. App. 3d at 886-87.
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Moreover, cases from other jurisdictions are instructive with respect to the circumstances

under which the administration of field sobriety tests to a motorist stopped at a sobriety checkpoint

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 checkpoint. The Bazinet court noted that the Supreme Judicial

Court of Massachusetts had upheld the constitutionality of a checkpoint procedure under which a

motorist would be subjected to further screening after the initial stop if the screening officer

observed " 'any articulable sign of possible intoxication.' " Bazinet, 76 Mass. App. Ct. at 908-09,

924 N.E.2d at 757, quoting Murphy, 454 Mass. at 321, 910 N.E.2d at 285. The Bazinet court further

noted that "[t]he [Murphy] court said that the 'odor of alcohol' was one of the 'clues of impaired

operation' for which the screening officers were to check and which, if observed, would provide a

basis for further screening and investigation." Bazinet, 76 Mass. App. Ct. at 909, 924 N.E.2d at 757,

quoting Murphy, 454 Mass. at 320, 328, 910 N.E.2d at 284, 289.

In People v. Rizzo, 243 Mich. App. 151, 622 N.W.2d 319 (2000), it was held that a strong

odor of an intoxicant on a motorist's breath, standing alone, is a sufficient basis for detaining the

motorist to conduct field sobriety testing. Rizzo, 243 Mich. App. at 152, 622 N.W.2d at 320-21.

Because the arresting officer testified that the defendant'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 contended that the odor of alcohol

on her breath did not necessarily mean that her blood alcohol content exceeded the legal limit.

Although the Rizzo court agreed with the contention, it held that in order to detain a motorist for
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field sobriety tests, the officer "merely must have a reasonable suspicion that the motorist has

consumed intoxicating liquor, which may have affected the motorist's ability to operate a motor

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 that he had been

to a club and was taking his girlfriend home. Smelling alcohol on the defendant's breath, the officer

asked the defendant to step out of the vehicle. The defendant stumbled and was unable to perform

a field sobriety test. The Thompson court rejected the defendant's argument that an unlawful seizure

occurred when the officer approached his vehicle. After explaining that the encounter was

consensual, the Thompson court stated:

"The 'seizure' of [the defendant] occurred only after the officer addressed [the defendant] and

noticed the odor of alcohol after [the defendant] volunteered that he had been at a club.

Then, the officer had a reasonable suspicion that [the defendant] had committed or was about

to commit a DWI and properly 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

Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 54 P.3d 532 (2002) (smell of alcohol on

defendant's breath while he was at police station because the police had "picked up" his daughter,

combined with his false statement to an officer that he was walking--not driving--home, did not give

rise to a reasonable suspicion that defendant was intoxicated and too impaired to drive); 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, drawn from the officer's experience or expertise, for
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1We note that defendant has cited several Florida trial court decisions. Because these

decisions do not create precedent under Florida law (Wood v. Fraser, 677 So. 2d 15, 19 (Fla. App.

1996)), we decline to consider them.

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correlating that odor with a level of intoxication that would likely impair the subject's driving ability,

is not enough to establish that the subject was driving under the influence"); see also State v.

Spillers, No. 1504 (Ohio App. March 24, 2000) (unpublished).1 We believe, however, that the

decisions from Massachusetts, Michigan, and Arkansas cited above reflect the better view.

Notwithstanding defendant's argument that driving after consumption of alcohol is not inherently

criminal, we conclude that defendant's admission that he had consumed a beer, coupled with the

officer's testimony that he detected the odor of alcohol emanating from the passenger compartment

of defendant's vehicle and the officer's observation that defendant's eyes were "glossy," was

sufficient to justify the relatively minor intrusion of requesting that a properly stopped motorist step

out of a vehicle to perform field sobriety tests. "Indeed, an officer faced with these facts would be

derelict in his duties if he chose not to conduct a further investigation." Village of Plainfield v.

Anderson, 304 Ill. App. 3d 338, 342 (1999); see also Village of Lincolnshire, 389 Ill. App. 3d at 887.

Because we find that the circumstances here were sufficient to create a reasonable articulable

suspicion that defendant was driving under the influence of alcohol, we affirm the judgment of the

circuit court of Du Page County.

Affirmed.

BOWMAN and O'MALLEY, JJ., concur.