ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Kiertowicz, 2013 IL App (1st) 123271

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

MATTHEW KIERTOWICZ, Defendant-Appellant.

 District & No. First District, Sixth Division

Docket No. 1-12-3271

Filed August 23, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s DUI conviction was upheld over his contention that the State

did not prove beyond a reasonable doubt that he had physical control of

his car, since the arresting officer testified that defendant was alone in the

car and was sleeping, the rear windows were down, the engine was

running, the taillights were on, and smoke was coming from the exhaust

pipe, and despite the absence of any reference to the ignition key, the

testimony was sufficient to establish that defendant had actual physical

control of his car.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. YT-688486, YT688487, YT-688488; the Hon. Thomas P. Fecarotta, Jr., Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Amanda N. Graham and Katie J. Kizer, both of Law Office of Kizer &

Graham, and Terrence P. LeFevour, both of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and

Anne L. Magats, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE GORDON delivered the judgment of the court, with opinion.

Justices Hall and Reyes concurred in the judgment and opinion.

OPINION

¶ 1 Following a bench trial, defendant Matthew Kiertowicz was convicted of driving under

the influence of alcohol (DUI). In reaching a guilty verdict, the trial court found that

defendant, who failed three field sobriety tests, was in actual physical control of his parked

vehicle when police officers found him alone and asleep in the driver’s seat while the engine

was running. After hearing factors in aggravation and mitigation, the trial court sentenced

defendant to 18 months’ conditional discharge, to undergo significant risk treatment, to

attend a victim impact panel, and to pay a $1,250 fine. On this direct appeal, defendant does

not challenge the trial court’s finding that he was driving under the influence, but instead

claims that the State failed to prove beyond a reasonable doubt that he had actual physical

control of his vehicle because there was no evidence that he possessed the ignition key or that

he was locked alone in the vehicle. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 The evidence at trial established that, on April 1, 2010, Harwood Heights police officer

Edward Smith (Smith) observed defendant asleep in the driver’s seat of his vehicle, which

was idling at a stop sign with the taillights illuminated and smoke emitting from the exhaust

pipe. Smith woke defendant and requested he perform three field sobriety tests, which he

failed. Defendant was then arrested and charged with driving under the influence of alcohol

(625 ILCS 5/11-501(a)(2) (West 2006)), transportation of alcoholic liquor in a motor vehicle

(625 ILCS 5/11-502 (West 2006)), failure to have insurance (625 ILCS 5/7-601 (West

2006)), failure to wear a seatbelt (625 ILCS 5/12-603.1 (West 2006)), and parking where

prohibited (625 ILCS 5/11-1303 (West 2006)). As a result, defendant’s driver’s license was

suspended for a minimum of 12 months pursuant to section 11-501.1 of the Illinois Vehicle

Code. 625 ILCS 5/11-501.1 (West 2006).

¶ 4 Prior to trial, defendant filed a petition to rescind the statutory suspension of his license,

and the trial court held a summary suspension hearing. At the hearing, Smith, a 12-year

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police veteran who has conducted between 50 to 75 DUIinvestigations, testified that, on the

morning of April 1, 2012, he was on patrol in Harwood Heights in a marked police vehicle

and in uniform. At approximately 6:30 a.m., Smith observed a black BMW convertible

stopped in the roadway about eight feet behind a stop sign at the intersection of Natchez and

Sunnyside Avenues. Smith was 100 yards away when he first observed the vehicle, and it

was dawn and the lighting was “very good.” As Smith drove toward the vehicle, he observed

that “the rear taillights [were] illuminated and smoke [was] coming from the exhaust pipe,”

but the vehicle did not move for over 30 seconds. Smith, along with his partner, exited the 1

police vehicle and approached the BMW on foot. Smith observed that both rear windows

were down and that water had puddled in the back seats, presumably due to a recent

rainstorm. Defendant was asleep in the driver’s seat, and the gear was shifted in park. Smith

identified defendant in court.

¶ 5 Smith testified that, after he knocked on the window, defendant woke up and opened the

driver’s side door. Smith inquired as to what defendant was doing there and he replied that

he was waiting for a friend. Smith observed that defendant’s speech was slurred, his eyes

were bloodshot and glassy, and his breath smelled of alcohol. Smith inquired of defendant

if he had been drinking that evening and defendant responded that he had consumed two

beers. Smith observed a glass container next to defendant that appeared to contain beer.

Smith asked defendant if the beer was his, and defendant responded that it belonged to a

friend. Based on these observations, Smith requested defendant to exit his vehicle and

perform three field sobriety tests. Smith determined that defendant failed all three tests and

placed him under arrest. Defendant refused a Breathalyzer test.

¶ 6 After Smith’s testimony, the trial court denied the State’s motion for a directed finding.

The State then introduced into evidence a videotape from the police vehicle’s dashboard

camera, which recorded defendant’s field sobriety tests. For the purposes of the hearing, the

parties stipulated that the videotape was a true and accurate depiction of the traffic stop. The

trial court then admitted the videotape into evidence without objection and it was played

before the court. The 11-minute videotape did not record the entire encounter and began

sometime after defendant exited his vehicle to perform the field sobriety tests. The videotape

starts with a depiction of defendant’s vehicle on the side of Natchez Avenue, stopped several

feet behind the stop sign at the intersection with Sunnyside Avenue. The vehicle’s lights are

off and there is no visible exhaust emitting from the tail pipe. The dashboard camera is then

shifted slightly to the right, revealing two other vehicles parked behind defendant’s vehicle.

The remainder of the video depicts defendant performing the three field sobriety tests.

¶ 7 The State rested and the trial court denied defendant’s petition, finding that reasonable

grounds existed for the initial inquiry that subsequently led to the discovery that defendant

was under the influence of alcohol.

¶ 8 Following the hearing, defendant filed a motion in limine that sought to bar the State

from introducing evidence pertaining to defendant’s statements made prior to the time the

The appellate record does not reveal the name of the other police officer, nor did he testify

1

at trial.

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dashboard camera began recording the incident; however, the appellate record does not

reflect the disposition of the motion. Defendant also filed a motion to quash the arrest,

claiming: (1) that his arrest was illegal because Smith did not observe him violate any local,

state, or federal law; (2) that he was legally parked in his vehicle at the time of his arrest; (3)

that Smith lacked probable cause for requiring defendant to perform the field sobriety tests;

(4) that he passed all three sobriety tests; and (5) that all the evidence obtained from his arrest

should be suppressed. The motion to quash was denied.

¶ 9 At trial, Smith testified that he had received DUI training at the police academy and

through a field-training program, and had made between 50 to 75 DUI arrests in his 13 years

as a Harwood Heights police officer. On April 1, 2012, Smith was patrolling the area near

the intersection of Natchez and Sunnyside Avenues in Harwood Heights. At approximately

6 a.m. that morning, he observed a black BMW stopped eight feet from the stop sign with

its taillights illuminated. It took Smith 30 seconds to drive 100 yards toward the BMW,

which did not move during that time. Smith drove up behind the BMW and waited another

five seconds for it to move, which it did not.

¶ 10 Smith testified that he observed “someone in the driver’s seat, the only occupant of the

vehicle in the driver’s seat not moving.” The vehicle was running with its taillights

illuminated and smoke emitting from the exhaust pipe. Smith exited his vehicle and,

accompanied by another officer, approached the BMW on foot. Defendant was asleep in the

driver’s seat with his head leaned back and eyes closed. Smith identified defendant in court.

Before waking defendant, Smith checked to make sure the gearshift was in park. After Smith

knocked on the vehicle’s window, defendant awoke and Smith began a conversation with

him. Defendant had an odor of liquor on his breath, slurred his speech, and had glassy,

bloodshot eyes. Smith observed that defendant had a clear glass halfway filled with a yellowcolored liquid, and when he asked defendant what the beverage was, defendant responded

that it was beer.

¶ 11 At that point, the trial court stopped Smith’s testimony, and the trial was continued.

During the next proceeding, the parties stipulated that the remainder of Smith’s testimony

would be the same as his testimony from the prior hearing on defendant’s motion to rescind.

The State then introduced into evidence the same dashboard video that the trial court viewed

in the previous hearing. Both parties stipulated that the video was a fair and accurate

depiction of the investigation and arrest of defendant. The video was admitted into evidence

and the trial court viewed the recording in its entirety.

¶ 12 The State rested, and defendant moved for a directed finding, claiming: (1) that Smith’s

testimony was not credible because he testified that the traffic stop took place on April 8,

2012, when defendant was in fact arrested on April 1, 2012; and (2) that the State failed to

prove defendant had actual physical control of his vehicle because Smith never mentioned

the ignition key in his testimony and the dashboard video did not show the vehicle’s lights

on or smoke emitting from the tail pipe. The State responded that it had met its burden of

proof because Smith testified that defendant was alone in the driver’s seat of his vehicle,

which had its taillights illuminated and exhaust smoke emitting from the tail pipe. Defendant

replied that Smith could not have observed that because the video showed that there was

another vehicle parked behind defendant’s vehicle.

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¶ 13 Following arguments, both parties rested, and the trial court denied defendant’s motion

to quash, finding that the police had probable cause to arrest him. The parties then waived

further arguments, and the trial court found defendant guilty of driving under the influence

of liquor and parking where prohibited, but found defendant not guilty of transporting ethyl

alcohol, driving without insurance, and not wearing a seatbelt. In finding defendant guilty

of driving under the influence, the trial court found that there was no doubt that he was under

the influence and that the evidence, notably Smith’s testimony, established that defendant

had actual physical control of his vehicle.

¶ 14 At the next proceeding, defendant filed a posttrial motion for a “New Trial, Judgment of

Acquittal, and/or Arrest of Judgment,” arguing that his guilty finding should be vacated

because: (1) Smith never observed defendant’s vehicle in motion, and the finding was

contrary to case law on physical control; (2) Smith never mentioned the ignition key in his

testimony; (3) the dashboard video showed that the vehicle’s lights were off and that there

was no smoke emitting from the tail pipe; and (4) the videotape showed that Smith did not

have an unobstructed view of the back of defendant’s vehicle and could not have observed

2

the taillights illuminated and smoke emitting from the exhaust pipe. Defendant argued each

of these points at the hearing on his motion, and the State responded that Smith’s testimony

sufficiently established that defendant had actual physical control of his vehicle. After

arguments, the trial court denied defendant’s motion, finding that Smith’s testimony alone

was sufficient to convict. The trial court noted that “the police officer does not have to see

the defendant drive the vehicle physically; clearly he was driving or additionally he was in

actual physical control of the vehicle.”

¶ 15 The trial court then held a sentencing hearing, and after considering factors in

aggravation and mitigation, sentenced defendant to 18 months’ conditional discharge,

ordered significant risk treatment, and for defendant to attend a victim impact panel, and

levied a $1,250 fine. Defendant appeals his conviction.

¶ 16 ANALYSIS

¶ 17 On appeal, defendant claims that the State failed to prove him guilty beyond a reasonable

doubt because the evidence at trial did not establish that he had actual physical control of his

vehicle. Defendant argues that the State failed to meet its burden because there was no

evidence that he possessed the ignition key or that he was locked alone in his vehicle. In

response, the State argues Smith’s testimony was sufficient to support a conviction because

he testified that the vehicle’s taillights were illuminated and smoke was emitting from the

exhaust pipe, and that defendant was alone in the vehicle.

¶ 18 When a defendant challenges the sufficiency of the evidence, the standard of review is

“ ‘whether, after viewing the evidence in the light most favorable to the [State], any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

Defendant did not raise this argument on appeal. However, we note that, regardless of 2

whether Officer Smith had an obstructed view at the time he first observed the vehicle, he

subsequently approached the vehicle on foot and inspected it at a close distance.

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doubt.’ ” (Emphasis omitted.) People v. Cunningham, 212 Ill. 2d 274, 278 (2004) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Under this standard, the reviewing court

does not retry the defendant, and the trier of fact remains responsible for making

determinations regarding the credibility of witnesses, the weight to be given their testimony,

and the reasonable inferences to be drawn from the evidence.” People v. Ross, 229 Ill. 2d

255, 272 (2008). “[A] reviewing court will not reverse a criminal conviction unless the

evidence is so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of

the defendant’s guilt.” People v. Rowell, 229 Ill. 2d 82, 98 (2008); People v. McGee, 398 Ill.

App. 3d 789, 793 (2010).

¶ 19 In a bench trial, the trial judge has the responsibility to determine the credibility of

witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any

conflicts in the evidence. People v. Spann, 332 Ill. App. 3d 425, 445 (2002) (citing People

v. Slim, 127 Ill. 2d 302, 307 (1989)). A reviewing court must give the State the benefit of all

reasonable inferences. People v. Wheeler, 226 Ill. 2d 92, 116-17 (2007) (citingCunningham,

212 Ill. 2d at 280). The evidence of a single witness is sufficient to convict if the witness is

found to be credible. People v. Smith, 185 Ill. 2d 532, 541 (1999). Testimony may be found

insufficient to convict only where the record evidence compels the conclusion that no

reasonable person could accept it beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280.

¶ 20 Circumstantial evidence that proves the elements of the crime charged beyond a

reasonable doubt is sufficient to sustain a criminal conviction. People v. Hall, 194 Ill. 2d 305,

330 (2000). “Circumstantial evidence is ‘proof of facts and circumstances from which the

trier of fact may infer other connected facts which reasonably and usually follow according

to common experience.’ ” People v. McPeak, 399 Ill. App. 3d 799, 801 (2010) (quoting

People v. Stokes, 95 Ill. App. 3d 62, 68 (1981)). When assessing circumstantial evidence,

“the trier of fact is not required to disregard inferences which flow normally from the

evidence and to search out all possible explanations consistent with innocence and raise them

to a level of reasonable doubt.” Hall, 194 Ill. 2d at 332 (citing People v. McDonald, 168 Ill.

2d 420, 447 (1995)).

¶ 21 Section 11-501(a)(2) of the Illinois Vehicle Code states: “(a) A person shall not drive or

be in actual physical control of any vehicle within [the State of Illinois] while: *** (2) under

the influence of alcohol.” 625 ILCS 5/11-501(a)(2) (West 2006). “A person need not drive

to be in actual physical control of a vehicle, nor is the person’s intent to put the car in motion

relevant to the determination of actual physical control.” City of Naperville v. Watson, 175

Ill. 2d 399, 402 (1997). The issue of actual physical control is determined on a case-by-case

basis, giving consideration to factors such as whether defendant: (1) possessed the key to the

ignition; (2) had the physical capability of operating the vehicle; (3) was positioned in the

driver’s seat; and (4) was alone in the vehicle with the doors locked. People v. Slinkard, 362

Ill. App. 3d 855, 859 (2005). These factors merely provide a guideline to determine whether

defendant had actual physical control of the vehicle; the list is neither exhaustive, nor is the

absence of one individual factor controlling. Slinkard, 362 Ill. App. 3d at 859. Illinois courts

have found individuals discovered sleeping in vehicles to be in actual physical control.

Watson, 175 Ill. 2d at 402.

¶ 22 In the case at bar, Smith’s testimony was sufficient to prove beyond a reasonable doubt

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that defendant had actual physical control of his vehicle. Smith testified that he observed the

vehicle stopped in the road several feet behind a stop sign, and that the taillights were

illuminated and smoke was emitting from the tail pipe. Smith noted that it was dawn and the

lighting was “very good,” and that he observed the stationary vehicle for 30 seconds while

he approached it from a distance of 100 yards. Smith then inspected the vehicle on foot and

observed defendant sleeping alone in the driver’s seat. Smith’s testimony establishes that

defendant had actual physical control of his vehicle because he was positioned in the driver’s

seat with the engine running, and thus had the physical capability to drive his vehicle.

Slinkard, 362 Ill. App. 3d at 859.

¶ 23 Defendant claims that the State did not meet its burden of proof because Smith never

mentioned the ignition key in his testimony, nor was the key mentioned in the arrest and

inventory reports. Neither the key nor the reports were admitted into evidence at trial.

Defendant argues that, since the State did not show the location of the ignition key, it failed

to prove that he was physically capable of starting the engine and driving his vehicle.

However, while Smith did not explicitly mention the ignition key in his testimony, he did

state that he observed the vehicle’s taillights illuminated and that exhaust smoke was

emanating from the tail pipe. The trial court drew the reasonable inference from Smith’s

observations that the vehicle’s engine was running and thus the key was in the ignition, or

the court could have concluded that the key was the new type that only needs to be in the

vehicle for the vehicle to start. Spann, 332 Ill. App. 3d at 445.

¶ 24 In addition, the dashboard video showed that the vehicle was no longer running after

defendant exited the vehicle. This gives rise to the reasonable inference that defendant turned

off the vehicle before exiting, and thus provides further proof that defendant was in

possession of the ignition key. Since we give the State the benefit of all reasonable

inferences, we cannot say that Smith’s testimony was insufficient to sustain defendant’s

conviction. Wheeler, 226 Ill. 2d at 116-17.

¶ 25 Defendant argues that, in determining actual physical control, the trial court’s focus

should be on the location of the ignition key. In support, defendant cites People v. Long, 351

Ill. App. 3d 821, 825 (2004), which recognized that the typical case in which courts have

upheld the conviction of a sleeping driver has involved a defendant who left the key in the

ignition. Long, however, is distinguishable from the case at bar because, in that case, the

defendant was arrested for a DUI when police found him asleep in his vehicle lying across

the front seat, with the ignition key on the floor beneath the steering column. Long, 351 Ill.

App. 3d at 822. The trial court granted the defendant’s motion to quash his arrest, and the

appellate court reversed, finding that he had actual physical control of his vehicle. Long, 351

Ill. App. 3d at 822. While the appellate court noted the importance of the location of the

ignition key in its analysis, it did so because the defendant’s vehicle was not running when

the police discovered him. Long, 351 Ill. App. 3d at 822. In the instant case, though there was

no explicit testimony concerning the location of the ignition key, Smith testified that the

vehicle’s taillights were illuminated and smoke was emitting from the tail pipe, which

supports a reasonable inference that the key was in the ignition. Moreover, possession of the

ignition key is just one of numerous factors that the trial court may consider when

determining actual physical control, and the factors are weighed on a case-by-case basis.

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Slinkard, 362 Ill. App. 3d at 859. Regardless of whether Smith testified to the exact location

of the ignition key, he indicated that defendant was in the driver’s seat with the engine

running, which established that he had actual physical control over his vehicle. Slinkard, 362

Ill. App. 3d at 859.

¶ 26 Furthermore, defendant claims that the dashboard video showed that the vehicle was not

running and that Smith never testified that anyone turned the ignition off. Defendant cites

People v. Kladis, 2011 IL 110920, ¶ 29, in support of his argument that video evidence is

more compelling than testimonial evidence and that the dashboard video contradicted

Smith’s testimonythat the engine appeared to be running.Kladis, however, is distinguishable

because, in that case, the defendant requested that the State produce a video recording of her

DUI traffic stop, but it subsequently destroyed the video. Kladis, 2011 IL 110920, ¶ 1. On

appeal, our supreme court found that the State had committed a discovery violation because

“the routine video recording of traffic stops has now become an integral part of those

encounters.” Kladis, 2011 IL 110920, ¶ 29. While the Kladis court found that video

recordings of traffic stops are discoverable (Kladis, 2011 IL 110920, ¶ 29), its finding does

not relate to the relevant issue in this case concerning the sufficiency of the evidence. As

noted, the testimony of a single witness is sufficient to convict if the witness is credible.

Smith, 185 Ill. 2d at 541. Furthermore, circumstantial evidence that proves the elements of

the crime charged beyond a reasonable doubt is also sufficient to sustain a criminal

conviction. Hall, 194 Ill. 2d at 330. Here, Smith testified that he observed defendant asleep

in the vehicle, which had its taillights illuminated and exhaust smoke emanating from the tail

pipe. The trial court found Smith to be a credible witness and it drew reasonable inferences

from his testimony. Spann, 332 Ill. App. 3d at 445. We cannot say that video evidence that

the vehicle was later shut off compels the conclusion that no reasonable person could accept

the sufficiency of Smith’s testimony. Cunningham, 212 Ill. 2d at 280.

¶ 27 This case is similar to People v. Robinson, 368 Ill. App. 3d 963, 983 (2006). In Robinson,

a police officer discovered the defendant unconscious in the driver’s seat, with the vehicle

parked and the engine running. Robinson, 368 Ill. App. 3d at 983-84. At trial, the defendant

was convicted of a DUI despite no mention of the ignition key in the officer’s testimony.

Robinson, 368 Ill. App. 3d at 965-70. On appeal, we found that the officer’s testimony that

he observed the defendant slumped over in the driver’s seat of the running vehicle was

sufficient to prove actual physical control beyond a reasonable doubt. Robinson, 368 Ill. App.

3d at 983-84. Here, a police officer similarly testified that he discovered defendant

unconscious in the driver’s seat of a parked vehicle that had its engine running, but did not

mention the location of the ignition key. As such, this case demands a similar result.

Regardless of Officer Smith’s failure to mention the ignition key in his testimony, the

evidence was sufficient to prove that defendant had actual physical control of his vehicle

because Smith’s testimonythat the vehicle was running supported a reasonable inference that

defendant was capable of driving his vehicle. Robinson, 368 Ill. App. 3d at 983-84.

¶ 28 Defendant also claims that the State failed to establish actual physical control because

it did not show evidence that defendant was the sole occupant of a locked vehicle. Defendant

argues that, though Smith explicitly testified that defendant was alone in the vehicle, he did

not say whether the doors were locked, and his testimony that the back windows were down

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supports the inference that the doors were unlocked. Recent case law, however, indicates that

courts tend to ignore this factor. See People v. Scapes, 247 Ill. App. 3d 848, 850 (1993)

(listing factor without applying it to facts); Slinkard, 362 Ill. App. 3d at 859-60 (same);

Robinson, 368 Ill. App. 3d at 983 (never mentioning factor); People v. Eyen, 291 Ill. App.

3d 38, 45 (1997) (same). In People v. Davis, 205 Ill. App. 3d 431, 433 (1990), we gave this

factor significant weight because the police officer testified that he observed the defendant

asleep in a sleeping bag on the backseat of his vehicle, which was not running. On appeal,

we found that the evidence established that no one but the defendant had actual physical

control of the vehicle because he was alone and locked inside and was readily able to turn

on the vehicle and drive. Davis, 205 Ill. App. 3d at 436. Here, the issue of actual physical

control is even stronger because Smith testified that, not only was defendant in the driver’s

seat, but the engine was running as well. As such, the evidence was sufficient to prove

beyond a reasonable doubt that defendant had actual physical control of his vehicle.

¶ 29 CONCLUSION

¶ 30 For the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 31 Affirmed.

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