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Criminal Law FLASHPOINTS October 2019

October 15, 2019Print This Post Print This Post

Matthew R. Leisten, Winnebago County State’s Attorney’s Office
815-319-4700 | E-mail Matthew R. Leisten

Updates in DUI Drug Cases: Can Police Officers Serve as Drug Recognition Experts?

It is fair to say that most of the general public’s understanding of driving under the influence (DUI) comes from DUIs involving alcohol. Public awareness groups such as Mothers Against Drunk Driving, slogans such as “Don’t drink and drive,” dramshop lawsuits, and the breathalyzer are often associated with alcohol-related DUIs. However, Illinois courts increasingly have had to deal with DUI issues involving drugs and intoxicating compounds.

One of these issues has been whether a police officer needed to be an expert before testifying as to whether he or she believed a driver was under the influence of drugs. Although it has been long settled that an officer could give his or her own lay opinion as to whether a driver was under the influence of alcohol, the appellate court had previously held that police officers must be qualified as drug recognition experts (DREs) before they could give their opinion as to whether a driver was under the influence of drugs. See People v. Shelton, 303 Ill.App.3d 915, 708 N.E.2d 815, 237 Ill.Dec. 12 (5th Dist. 1999), overruled by People v. Gocmen, 2018 IL 122388, 115 N.E.3d 153, 425 Ill.Dec. 598; People v. Workman, 312 Ill.App.3d 305, 726 N.E.2d 759, 244 Ill.Dec. 784 (2d Dist. 2000).

In its 2018 decision in Gocmen, the Supreme Court overruled Shelton and subsequently held that expert testimony is not required in every case for an officer to testify about his or her opinion that a motorist was under the influence of drugs under the totality of the circumstances. Gocmen, supra, 2018 IL 122388 at ¶¶29, 62.

First, to better understand the Gocmen holding and the recently released decision by the Second District of the Illinois Appellate Court in People v. Castino, 2019 IL App (2d) 170298, which applied Gocmen, here is a quick overview of the drug, combination, and intoxicating compound-related DUI charges under 625 ILCS 5/11-501(a).

A person shall not drive or be in actual physical control of any vehicle within this State while:

* * *

(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;

(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;

(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving;

(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, other bodily substance, or urine resulting from the unlawful use or consumption of a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act.

In Gocmen, the defendant was arrested for DUI drugs after his car was partially off the road and he failed to respond to paramedics’ commands to exit his vehicle. 2018 IL 122388 at ¶2. The arresting officer testified at the statutory summary suspension hearing that he observed a cut and burned Red Bull can in the car that had a brown residue. A “NARK swipe” on the residue revealed the presence of “opiates.” 2018 IL 122388 at ¶6. The officer also saw a used syringe on the passenger seat and found a granular substance in the defendant’s wallet that was in the center console. 2018 IL 122388 at ¶¶6 – 7. The officer had received DUI alcohol-related training but did not have any specific DUI drug detection training. 2018 IL 122388 at ¶1.

The trial court and the appellate court both found that the officer lacked reasonable grounds to believe that the defendant was under the influence of drugs in part because the officer lacked specialized drug training to for him to detect the presence of controlled substances. 2018 IL 122388 at ¶¶13 – 14,16.

In reversing the lower courts’ rulings, the Supreme Court noted that an officer’s experience or level of specialized training goes to the credibility of the officer. 2018 IL 122388 at ¶34. The Supreme Court rejected the appellate court’s determination and prior appellate holdings that held an officer was prohibited from giving his or her opinion on whether a motorist was under the influence of drugs unless the officer was an expert witness. 2018 IL 122388 at ¶38. The Supreme Court concluded that probable cause existed, like in Gocmen, when the totality of the circumstances at the time of arrest is sufficient to lead a reasonably cautious person to believe that an individual was driving under the influence of drugs. 2018 IL 122388 at ¶62.

The Second District Appellate Court recently applied Gocmen in affirming a DUI conviction under §11-501(a)(6) when the officer was not certified as a DRE. Castino, supra, 2019 IL App (2d) 170298 at ¶1.

In Castino, Hanover Park police pulled over a car for traveling 10 miles per hour in a 40-mile-per-hour zone with expired plates and drifting between lanes. 2019 IL App (2d) 170298 at ¶4. The officer noticed that the defendant driver had very red eyes, constricted pupils, fresh and old track marks on his arms, and swelling on his arms and hands. 2019 IL App (2d) 170298 at ¶5. The officer also observed that the defendant’s nose was bleeding with a white powdery substance under the nostril. Id. The defendant was charged with DUI under §§11-501(a)(4) and 11-501(a)(6).

At trial, the officer testified about his experience and training. His drug training included several classes with one that covered heroin. He also had taken a drugged-driver certification class, which covered heroin and the cues that a person exhibits when they are under the influence of narcotics. The officer explained he had observed people under the influence of narcotics over 100 times in his personal and professional life and had investigated people who had recently used drugs that left fresh track marks on their arms. The officer said that he had been involved in 15 traffic stops involving heroin. 2019 IL App (2d) 170298 at ¶6.

The officer was not qualified as a DRE. However, the officer was allowed to give his opinion (based on his training and experience) that the defendant’s track marks were both fresh and old and that the swollen arms and hands and constricted pupils indicated narcotics use. The officer also opined that heroin can cause the nose to bleed when snorted. Id. The officer also noted the significance of a hypodermic needle that he saw in the driver’s side door pocket. The defendant told the officer that he had used a few hours earlier. 2019 IL App (2d) 170298 at ¶7. After searching the defendant, the officer found a rubber band, a bloodied paper towel, and a cotton swab. In the defendant’s car, the officer found several hypodermic needles. 2019 IL App (2d) 170298 at ¶8.

During field sobriety testing, the defendant’s eyes remained red with small pupils, and the pupils did not track back and forth smoothly. One of the eyes displayed a lack of convergence, and the defendant was unable to look upward to the officer’s finger. The defendant also stepped off the line during the walk-and-turn test, swayed on the one-leg stand test, and overestimated a 30-second interval during the Romberg test. 2019 IL App (2d) 170298 at ¶8.

The trial court initially allowed the officer to testify that he believed the defendant was under the influence but later reversed itself. 2019 IL App (2d) 170298 at ¶11. The trial court dismissed the §11-501(a)(4) impairment to a degree that rendered him incapable of safely driving charge but found the defendant guilty under the §11-501(a)(6) “any amount” charge. 2019 IL App (2d) 170298 at ¶14.

The appellate court affirmed the §11-501(a)(6) DUI conviction. The appellate court cited Gocmen in reiterating that expert testimony is not required in every DUI drug case. 2019 IL App (2d) 170298 at ¶19. The court noted that circumstantial evidence can be used to prove the presence of a substance in a defendant’s breath, blood, or urine. 2019 IL App (2d) 170298 at ¶19. The court found that there was sufficient circumstantial evidence that showed the defendant drove with heroin in his breath, blood, or urine, specifically, the fresh track marks on his arms, his swollen arms and hands, his constricted pupils, the white powder and blood under his nose, and the drug paraphernalia on his person and in the car. 2019 IL App (2d) 170298 at ¶22.

The court also found that the defendant exhibited signs of impairment (notwithstanding the fact that the trial court ruled that the state did not prove he was impaired to a degree that rendered him incapable of safely driving). The signs of impairment included the defendant’s slow driving, swaying and raising his arms during the field sobriety tests, and stepping off the line during the tests. 2019 IL App (2d) 170298 at ¶23. Although the trial court did not consider the officer’s opinions based on those tests, the appellate court stated there was sufficient evidence without those tests and the other opinions given by the officers were based on their experiences instead of specialized knowledge by an expert, citing Gocmen. 2019 IL App (2d) 170298 at ¶24.

Gocmen and Castino hardly mean that the prosecution can win DUI drug convictions under every suspicious circumstance of driving and drug use. Instead, these decisions simply allow officers to testify about their opinions on why they believe a driver was under the influence of drugs — just as they have been allowed to express their opinions as to whether a driver was under the influence of alcohol. Officers still must have proper foundations for their opinions (i.e., indications of drug use, erratic driving, etc.) just as they would in a DUI alcohol case. Expert testimony could still be necessary, and even extremely beneficial, in some cases in explaining the indicators of drug use or the effects or lack of effects of certain narcotics on a driver.

For more information about criminal law, see DEFENDING DUI: PRACTICE AND PROCEDURE — 2016 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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