2024 IL App (2d) 230568 

No. 2-23-0568 

Opinion filed March 4, 2024 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 23-CF-2617 

) 

ISMAEL LUNA, ) Honorable 

) Salvatore LoPiccolo, Jr.,

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

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

Justices Hutchinson and Mullen concurred in the judgment and opinion. 

OPINION

¶ 1 On December 5, 2023, the defendant, Ismael Luna, was charged with two counts of 

aggravated driving under the influence (DUI), sixth or more subsequent violation (625 ILCS 5/11-

501(a)(1)-(2), (d)(2)(E) (West 2022)), and two counts of aggravated DUI based on his license 

being suspended or revoked (id. § 11-501(a)(1), (d)(1)(G)). The circuit court of Kane County 

granted the State’s verified petition to deny the defendant’s pretrial release pursuant to section 

110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)). 

The defendant appeals. We affirm.
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¶ 2 This appeal is brought pursuant to Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), 

commonly known as the Pretrial Fairness Act (Act).1 See Pub. Act 102-1104, § 70 (eff. Jan. 1, 

2023) (amending various provisions of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay 

and setting effective date of Act as September 18, 2023). The Act abolished traditional monetary 

bail in favor of pretrial release on personal recognizance or with conditions of release. Pub. Act 

101-652 (eff. Jan. 1, 2023) (amending 725 ILCS 5/110-1.5, 110-2(a)).

¶ 3 In Illinois, all persons charged with an offense are eligible for pretrial release. 725 ILCS 

5/110-2(a), 110-6.1(e) (West 2022). Pretrial release is governed by article 110 of the Code as 

amended by the Act.Id. §§ 110-1 to 110-14. Under the Code, as amended by the Act, a defendant’s 

pretrial release may only be denied in certain statutorily limited situations (qualifying offenses). 

Id. §§ 110-2(a), 110-6.1(e). 

¶ 4 Upon filing a verified petition requesting denial of pretrial release, the State has the burden 

to prove, by clear and convincing evidence, that (1) the proof is evident or the presumption great 

that the defendant has committed a qualifying offense (id. § 110-6.1(e)(1)), (2) the defendant’s 

pretrial release would pose a real and present threat to the safety of any person or persons or the 

community (id. § 110-6.1(e)(2)), and (3) no condition or combination of conditions can mitigate 

the real and present threat to the safety of any person or the community or prevent the defendant’s 

willful flight from prosecution (id. § 110-6.1(e)(3)). “Evidence is clear and convincing if it leaves 

1The Act has also been referred to as the “Safety, Accountability, Fairness and EquityToday (SAFE-T) Act.” Neither of those names is official, as neither appears in the Illinois 

Compiled Statute or the public act. Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 
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no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in question 

***.” Chaudhary v. Department of Human Services, 2023 IL 127712, ¶ 74. 

¶ 5 In his appeal, the defendant argues that the State did not show, by clear and convincing 

evidence, that any of these three requirements were met. 

¶ 6 The State filed charges against the defendant after he was found in the driver’s seat of a 

vehicle passed out with an empty Jack Daniel’s bottle next to him. The vehicle was in a parking 

lot and had several areas of damage, including the front driver’s side, rear taillight, and the 

passenger’s side body panel, which was mostly off the vehicle. A utility pole near the parking lot’s 

exit showed indications of collision. Also, near the metal sign for the business in the parking lot, 

there were broken pieces of red taillight where the metal post for the sign appeared to have been 

struck. After observing all this damage, a police officer concluded that the vehicle attempted to 

leave the parking lot and then struck a utility pole. The vehicle then backed into the sign, breaking 

the rear taillight. The defendant was taken to the hospital, which determined he had a blood alcohol 

content of 0.27. The record reveals that the defendant had seven prior DUI convictions and that he 

had not had a driver’s license since 1989. 

¶ 7 To be convicted of aggravated DUI, sixth or more violations, the State needed to show, 

inter alia, that the defendant (1) was in physical control of a vehicle (2) while intoxicated or while 

having a blood alcohol level exceeding 0.08. 625 ILCS 5/11-501(a) (West 2022). The defendant

challenges only the first element, arguing that the State did not prove by clear and convincing 

evidence that he had actual physical control of the car, because the State’s only evidence was that 

he was in the driver’s seat. He insists there was no evidence that he drove the car, that the car was 

running or had recently been running, that the keys were in the ignition, that he possessed the keys, 

or that the keys belonged to him. 
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¶ 8 The defendant need not be observed driving a vehicle. People v. Niemiro, 256 Ill. App. 3d 

904, 909 (1993). Rather, the State must show that the defendant wasin actual physical control of 

a vehicle while intoxicated. Id. Whether a defendant was in control of a vehicle is considered on a 

case-by-case basis. People v. Davis, 205 Ill. App. 3d 431, 435 (1990). 

¶ 9 The fact that the defendant was found passed out in the driver’s seat of a crashed vehicle

is one indicium that he was in physical control of a vehicle. Niemiro, 256 Ill. App. 3d at 909. For 

the purposes of the detention hearing, this was sufficient for the State to meet its burden that the 

defendant had committed a qualifying (or detainable) offense. We note that the evidence required 

at a detention hearing is less than required at trial. See 725 ILCS 5/110-6.1(f)(4) (West 2022) (the 

pretrial detention hearing is not to be used for purposes of discovery, and the postarraignment rules 

of discovery do not apply); see also id. § 110-6.1(f)(5) (the rules concerning the admissibility of 

evidence in criminal trials do not apply to the presentation and consideration of information at the 

hearing). At trial, the State can produce additional evidence that the defendant committed the 

charged offenses, and the defendant can challenge the sufficiency of that evidence.

¶ 10 The defendant next argues that the State did not show, by clear and convincing evidence, 

that his release would pose a real and present threat to anyone’s physical safety, and thus, the trial 

court erred in finding that this element was met. As noted, “[e]vidence is clear and convincing if 

it leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in 

question ***.” Chaudhary, 2023 IL 127712, ¶ 74. We review the court’s decision to deny pretrial 

release under a bifurcated standard. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. 

Specifically, we review under the manifest-weight-of-the-evidence standard the court’s factual 

findings as to dangerousness, flight risk, and whether conditions of release could mitigate those 

risks. Id. A finding is against the manifest weight of the evidence only where it is unreasonable or 
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not based on the evidence presented.2 Id. We review for an abuse of discretion the trial court’s 

ultimate determination regarding pretrial release. Id. An abuse of discretion occurs when the trial 

court’s decision is unreasonable. Id.

¶ 11 A trial court making a determination of a defendant’s dangerousness must base its 

conclusion on the “specific articulable facts of the case,” not merely generalizations, and it may 

consider, among other things, (1) the nature and circumstances of any charged offense, including 

whether it is a crime of violence or a sex crime or involved a weapon; (2) the defendant’s 

characteristics and history, including any criminal history indicative of violent, abusive, or 

assaultive behavior and any psychological history indicative of a violent, abusive, or assaultive 

nature or the lack of any such history; (3) the identity of the person believed to be at risk from the 

defendant and the nature of the threat; (4) statements by the defendant and the circumstances of 

such statements; (5) the age and physical condition of the defendant; (6) the age and physical 

condition of any victim or complaining witness; (7) the defendant’s access to any weapon;

(8) whether the defendant was on probation, parole, or the like at the time of the charged offense 

or any other arrest or offense; and (9) any other factors that have a reasonable bearing on the 

defendant’s propensity for violent, abusive, or assaultive behavior or the lack of such behavior.

725 ILCS 5/110-6.1(g) (West 2022). 

2There may be instances in which a trial court’s factual findings are reviewed de novo

because of the nature of the evidence presented. See Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 

453 (2009). But see Evans v. Cook County State’s Attorney, 2021 IL 125513, ¶ 38. Neither party 

contends that is the case here, however.
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¶ 12 The defendant argues that the State did not show that he posed a real and present threat to 

public safety. The defendant insists that the trial court did not make an individualized finding of 

his threat to community safety but instead relied on the general dangerousness of the charged 

offenses. Our review of the record shows that the defendant’s assertion is incorrect. In determining 

that the defendant was a danger to others, the trial court noted that the defendant had seven prior 

DUI convictions. Additionally, the trial court noted that the defendant’s vehicle “crashed on 2 

separate posts and signs trying to exit the parking lot” where he was found. This latter finding 

demonstrates that the trial court made an individualized determination that the defendant was a 

danger to others and did not just rely on the inherent dangerousness of his past DUI convictions. 

As such, the trial court did not abuse its discretion in determining that the defendant was dangerous 

to others. 

¶ 13 The defendant’s last argument is that the State failed to prove that no conditions or 

combination of conditions could have mitigated the threat to the community and that the trial 

court failed to adequately consider alternatives to pretrial detention. Specifically, the defendant

contends that the trial court erred in rejecting conditions that would mitigate any purported threat 

to the community, such as ordering he wear a secure continuous remote alcohol monitor 

(SCRAM) device and be subject to electronic home monitoring (EHM). 

¶ 14 Under section 110-6.1(e)(3) of the Code, an order for pretrial detention must be based on, 

among other things, clear and convincing evidence that “no condition or combination of 

conditions” of pretrial release can mitigate the real and present threat to safety posed by the 

defendant. Id. § 110-6.1(e)(3). If the trial court finds that the State proved a valid threat to 

someone’s safety or the community’s safety, it must then determine what pretrial release 

conditions, “if any, will reasonably ensure the appearance of a defendant as required or the safety 
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of any other person or the community.” Id. § 110-5(a). In making this determination, the trial court 

should consider (1) the nature and circumstances of the offense charged; (2) the weight of the 

evidence against the defendant;(3) the history and characteristics of the defendant;(4) the nature 

and seriousness of the specific, real, and present threat to any person that the defendant’s release 

would pose; and (5) the risk that the defendant will obstruct or attempt to obstruct the criminal 

justice process. Id. No single factor is dispositive. Trottier, 2023 IL App (2d) 230317, ¶ 12. As 

with the finding of dangerousness, we review under the manifest-weight-of-the-evidence standard 

a trial court’s finding of whether the imposition of conditions on a defendant’s pretrial release 

would mitigate the safety risk posed by the defendant. Id. ¶ 13. 

¶ 15 In considering this factor, the trial court noted that the defendant had not had a valid 

driver’s license since 1989, yet he continued to drive and had accumulated five DUI convictions 

since that date. The trial court found that there was a “real and present threat” of the defendant

drinking and driving. The trial court found that neither a SCRAM device nor EHM would prevent 

the defendant from drinking and driving. As such, the trial court ordered that the defendant be 

detained until trial. We cannot say that the trial court’s order was against the manifest weight of 

the evidence.

¶ 16 In so ruling, we are unpersuaded by the defendant’s reliance on People v. Herrera, 2023 

IL App (1st) 231801, and People v. Atterberry, 2023 IL App (4th) 231028. In Herrera, the trial 

court rejected the defendant’s suggestion that he be ordered to wear a SCRAM device as a 

condition of pretrial release, finding that it did not have the authority to order SCRAM under the 

Act. Herrera, 2023 IL App (1st) 231801, ¶ 25. The reviewing court vacated the trial court’s order, 

explaining that SCRAM was a viable condition of release. Id. ¶ 32. Here, the trial court did not 
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find it lacked the authority to order SCRAM. Instead, it determined that it was inappropriate under 

the circumstances. 

¶ 17 In Atterberry, the trial court relied in part on information outside the record in determining 

that pretrial release conditions were “loosely monitored” and, therefore, inadequate to protect 

others from the defendant. Atterberry, 2023 IL App (4th) 231028, ¶ 17. The reviewing court 

reversed the trial court’s decision, determining that “a court should not rule out pretrial release for 

a defendant based on a general perception that conditions of release are loosely monitored.” Id.

¶ 18. Here, the trial court’s concern was not that imposing SCRAM would be “loosely monitored.” 

Instead, it found that that condition would be ineffective based on the defendant’s long history of 

drinking and driving. 

¶ 18 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County. 

¶ 19 Affirmed.
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People v. Luna, 2024 IL App (2d) 230568

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 23-CF-2617; 

the Hon. Salvatore LoPiccolo Jr., Judge, presiding.

Attorneys

for

Appellant:

James E. Chadd and Carolyn R. Klarquist, of State Appellate 

Defender’s Office, of Chicago, for appellant.

Attorneys

for

Appellee:

Patrick Delfino and David J. Robinson, of State’s Attorneys 

Appellate Prosecutor’s Office, of Springfield, for the People.