Opinion
No. 1-12-0666
03-31-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD AMADOR, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. TT 354-572 Honorable Russell W. Hartigan, Judge Presiding. PRESIDING JUSTICE PALMER delivered the judgment of the court.
Justices McBride and Reyes concurred in the judgment.
ORDER
¶ 1 Held: Defendant's convictions for driving under the influence of alcohol and driving under the combined influence of alcohol and cannabis are affirmed over defendant's arguments that he received ineffective assistance of counsel and the State failed to prove him guilty beyond a reasonable doubt. However, as both offenses are based upon the same single physical act, we vacate the conviction for driving under the influence of alcohol pursuant to the one-act-one-crime doctrine and order the mittimus be corrected to reflect a single conviction for driving under the combined influence of alcohol and cannabis. ¶ 2 Following a bench trial, the trial court convicted defendant Ronald Amador of driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)) and driving under the combined influence of alcohol and cannabis (625 ILCS 5/11-501(a)(5) (West 2012)) and sentenced him to 24 months supervision. Defendant appeals, arguing (1) he was denied effective assistance of counsel by his counsel's failure to move in limine to exclude the arresting officer's testimony regarding defendant's performance on the horizontal gaze nystagmus (HGN) test and to object to this testimony at trial, (2) he was not proved guilty beyond a reasonable doubt of either offense as the field sobriety tests were not reliable determinants of sobriety, (3) he was not proved guilty beyond a reasonable doubt of being under the combined influence of alcohol and cannabis as there was no evidence he was under the influence of cannabis and (4) his conviction for driving under the influence of alcohol should be vacated under the one-act-one crime doctrine. We affirm in part, vacate in part and order the mittimus corrected.
¶ 3 BACKGROUND
¶ 4 The record shows Officer Jeffrey Kriv stopped defendant for a traffic violation and ticketed him for driving under the combined influence of drugs and alcohol (625 ILCS 5/11-501(a)(5) (West 2012)), as well as for failing to stop at a stop sign, failing to have a valid driver's license and operating an uninsured vehicle. The State subsequently added charges for driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)) and driving with "any amount of a drug, substance, or compound in [his] breath, blood, or urine resulting from the unlawful use or consumption of cannabis" (625 ILCS 5/11-501(a)(6) (West 2012)). The case proceeded to a bench trial. ¶ 5 At trial, Officer Kriv testified that he was sitting alone in his squad car at the three-way intersection of Chicago Avenue and Campbell Street at approximately 1:48 a.m. on March 17, 2010, with his squad car's video equipment activated. He saw a red Ford Explorer vehicle "blow through the stop sign" westbound on Chicago Avenue. The vehicle did not stop or slow down at the intersection. Kriv activated his emergency equipment and pulled the vehicle over "a block-and-a-half" past the intersection. He identified defendant in court as the driver of the vehicle. ¶ 6 Officer Kriv testified that he requested proof of insurance and driver's license from defendant but defendant told him he did not have insurance and he thought his license was suspended. He asked defendant whether he had had anything to drink and defendant told him "he had a couple of beers." Kriv testified that defendant's speech was "slurred" and "difficult to understand." On cross-examination, Kriv acknowledged that it is possible that people can have a natural slurred speech if they have an accent but stated he did not find defendant's accent to be "strong." ¶ 7 Officer Kriv testified he asked defendant to step out of the car, at which point he noticed the smell of alcohol coming from defendant's breath. Once defendant was outside the car, Kriv patted him down. Kriv then returned to his squad car to run defendant's name through the car's portable data terminal. Two plain-clothes officers, Anthony Green and Jamie Velez, had arrived at the scene. Upon checking the information in the data terminal, Kriv informed defendant that his driver's license was not suspended because he had never had a license. He told defendant that he wanted to perform field sobriety tests. The video recording of the traffic stop shows Officer Kriv then asked defendant whether he had any injuries and defendant told him he had none. Kriv turned off his squad car's emergency lights and blinking headlights and had defendant perform three sobriety tests standing between the squad car and the rear of defendant's vehicle. Kriv testified on cross-examination that cars were passing six feet away in the next traffic lane but that traffic was "very light." ¶ 8 The first test that Officer Kriv administered was the horizontal gaze nystagmus (HGN) test. Kriv testified he had undergone at least 24 hours of training on the HGN test and passed both written and practical examinations on the test. He explained how he conducted an HGN test, by standing a few feet from the test taker and moving a pen or pointed object from side to side 12 to 16 inches from the test taker's eyes in order to distinguish nystagmus in the eyes. Kriv explained that nystagmus is an involuntary jerking of the eyes which helps an officer determine whether or not the test taker has been drinking. He stated he performed the test on defendant as he had been trained to do and in compliance with National Highway Transportation and Safety Administration (NHTSA) standards. ¶ 9 Officer Kriv testified that he observed defendant had "maximum deviation in both eyes," and "onset of nystagmus at 45 degree angle in both eyes," which "clearly showed that defendant had been consuming alcohol." On cross-examination, Officer Kriv admitted that nystagmus can be caused by many things, including physical impairments, and he did not ask defendant whether he had any such physical problems. ¶ 10 Officer Kriv then asked defendant to perform the walk-and-turn test. He demonstrated the test to defendant and explained it, asking defendant to put his right foot in front of his left, touching heel-to-toe with his arms down to the side and walk on an imaginary straight line. Kriv testified that defendant "did really well standing there heel-to-toe *** but that was pretty much the only thing that he well." Kriv stated defendant "missed heel-to-toe on all the steps," "took wrong [sic] number of steps," "almost fell turning around," "used his arms for balance" and stepped off the imaginary line "several times." Kriv testified that there are eight clues of impairment on the walk-and-turn test, display of two of the eight clues indicates impairment and defendant displayed four of the clues. On cross-examination, Kriv admitted that, although he asked defendant whether "he was injured or ill," he did not explain to him that he was asking for this information in order to determine whether there was any reason defendant might have trouble keeping his balance and defendant therefore had no context for the question. ¶ 11 Officer Kriv lastly administered the one-legged-stand test. He testified that he demonstrated and explained the test to defendant, asking him to raise his leg for several seconds, count up to 30 seconds in increments of "1, one thousand" and, instructing him that, "if you put your foot down at all during this test, lift it back up and continue counting where you left off." Kriv testified defendant "had trouble keeping his balance," "put his foot down numerous times" perhaps as many as 5 times total, counted to 10, stopped and asked whether he was supposed to count backwards and started counting over after he counted to 10. Officer Kriv stated that there are four clues of impairment in the one-legged-stand test, display of two of these clues indicates impairment and defendant displayed three of the clues. ¶ 12 After administration of the tests, Officer Kriv placed defendant in custody and put him in the back of the squad car in order to take him to the police station. Kriv testified that, while he was administering the standard field sobriety tests, he observed a smell of alcohol from defendant's breath. He originally observed it when defendant first got out of his car but also noticed it during the tests. On the drive to the police station, Kriv conversed with defendant and found him "still very difficult to understand" and "kind of confused." Kriv stated defendant was insistent that he did not run the stop sign. ¶ 13 Once they arrived at the police station, Officer Kriv took defendant into the station's interview room and read him "his Warning to Motorists." Kriv testified he noticed "an odor of cannabis also emanating from [defendant's] breath in addition to the alcoholic beverage." He stated he had been trained on the effects and identification of cannabis, passed written and practical examinations regarding the odor of cannabis and other narcotics and "been around burnt cannabis" during numerous traffic stops and arrests and that the smell was "unmistakable." He stated the smell on defendant's breath was the same as the odor he had smelled in his training and experience. ¶ 14 A second officer entered the interview room to perform the "breath test." After the breath test, Officer Kriv told defendant that he wanted to take him to the hospital to perform alternative testing. Kriv testified defendant then "stated that he'd been smoking marijuana all this [sic] life and that the result would come back positive so he wanted to speak to a lawyer before he went to the hospital." Kriv explained to defendant that, in civil matters regarding a driver's license, a defendant does not have an option to speak to a lawyer beforehand and "[t]his is a decision you have to make on your own." Kriv then read defendant the Miranda warnings at 3:00 a.m. He asked defendant whether he had been driving and on what street. Defendant replied he had been driving on Division Street. Kriv stated defendant had actually been driving on Chicago Avenue, a "half mile away." ¶ 15 Officer Kriv testified he then asked defendant whether he had been drinking or using drugs and defendant replied that he'd smoked "half a blunt of marijuana" at his girlfriend's. Kriv stated a "blunt" is "like a rolled up cigar" with the insides taken out and replaced with marijuana. Defendant did not know when he had started smoking the blunt and when he had stopped. On cross-examination, Kriv testified that he had not noticed the odor of cannabis when he had first spoken to defendant while defendant was still sitting in his car or when he had initially noticed the odor of alcohol on defendant's breath. ¶ 16 Officer Kriv testified his video equipment recorded both video and audio of the traffic stop and accurately depicted the events of the evening. He stated he had been trained regarding DUI investigations, traffic violations, the effects of alcohol on the body and had passed written and practical tests regarding this training. He had made approximately 1,000 arrests for DUI in his 15-year career as a police officer and it was his opinion that defendant was under the influence of alcohol. Kriv stated he had stopped defendant for running the stop sign but, standing alone, this conduct was not enough on which to base a finding that defendant was under the influence of alcohol. He testified he based his opinion that defendant was under the influence of alcohol on speaking with defendant at the scene and "listening to him slur his words," defendant's bloodshot eyes, the "strong odor of alcoholic beverage" he originally observed on defendant's breath and the results of the sobriety tests. ¶ 17 Officer Kriv testified he saw defendant had bloodshot eyes but admitted on cross-examination that, at 1:48 in the morning, it is possible that a tired person's eyes can appear bloodshot. He admitted he could not tell from the odor of alcohol on defendant's breath how many drinks defendant had consumed or when he consumed them or what defendant was drinking. Kriv testified that he can estimate a person's blood alcohol content from their performance on the sobriety tests and, based on defendant's performance on the tests, he would have guessed defendant's blood alcohol content to be .11. The parties stipulated that defendant's breath alcohol test results showed defendant had a blood alcohol content of .063. ¶ 18 At the close of the State's evidence, defendant moved for directed findings on the three counts of driving under the influence. The court denied the motion. ¶ 19 Natsvlish Vili then testified for defendant. She stated she was defendant's girlfriend and had known him for two years. She and her friend "Julia" were passengers in defendant's car when police pulled him over. Vili testified she and Julia were at Vili's home waiting for defendant to arrive home from work so that he and Vili could drive Julia home. Defendant arrived home at 6 p.m. and drank "a beer" around 9 p.m. Vili denied seeing defendant smoke marijuana at her house or in the car. She testified that defendant's speech is "like a child's" and that "he takes his time to say his words" and "speaks slowly." She stated English is defendant's second language, he speaks with an accent and sounds like "Rocky Balboa" from the "Rocky" movies "all the time." Vili testified defendant had trouble with his knees due to a football injury in high school, she has seen him limping and lose his balance "very frequently," "every week," and he had trouble going up stairs because he "couldn't bend his knee." She said that defendant had worked before coming to her house that night and his construction job required him to be on his knees which "pressure[s] [the] knees all the time." ¶ 20 Following closing argument, the court found defendant guilty of driving under the influence of alcohol (625 ILCS 5/11-501(a)(2)) and driving under the combined influence of alcohol and drugs (625 ILCS 5/11-501(a)(5)). It found him not guilty of driving under the influence of drugs (625 ILCS 5/11-501(a)(6)). It also found there was no question defendant went through the stop sign, had no driver's license and was uninsured. ¶ 21 The court found the video "rather significant in terms of the story being told that night." It stated it saw the vehicle driven by defendant "definitely go through a stop sign without any stopping at all" and noted Officer Kriv's testimony that he could see 10 feet before the stop sign and description of defendant's conduct as "going through the stop sign." The court stated with regard to Officer Kriv's testimony:
"we do have the officer testifying to the field sobriety tests, the horizontal gaze - or even before that, I think that the Defendant here had an accent, there's certainly significant, and I emphasize significant, slurring in this video. And the Defendant was unable really at times to put a full sentence together which is reflected in the video. Coupled with the fact that he had difficulty with the walk-and-turn -- the court observed his difficulty, trouble keeping his balance, observed him starting over again, observed him placing his foot down to gain his balance."The court also noted Officer Kriv's testimony regarding defendant's bloodshot eyes, the odor of alcohol and the difficulty defendant had walking, which the court stated it had observed when defendant "almost fell in the video and also the wrong number of steps." The court stated "there's a significant amount of clues in all these field sobriety tests here to indicate that the Defendant was driving a vehicle under the influence of alcohol." ¶ 22 The court also found "there's the marijuana present." It found the charge "a little troublesome" "even though there may have been an admission," as the marijuana was not "smelled *** at the scene" but continued that, "in this particular case, the video really shows all of the factors that arise in a driving under the influence." The court found defendant's "[going] through a stop sign *** significant" and "that's erratic driving." It noted the testimony regarding the odor of alcohol, the bloodshot eyes, the "unsteady gait, [and] the difficulty doing the test." The court stated that, "if [it] observed an accent, *** it was certainly slurring sound and that's not controlling." But, "coupled with all the other tests here that to me show that in many respects, the Defendant failed, that he was under the influence of alcohol." ¶ 23 The court denied defendant's motion to reconsider. On February 10, 2012, the court agreed with the sentence proposed by the parties and sentenced defendant to 24 months supervision on the "concurrent" convictions for driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)) and driving under the combined influence of alcohol and drugs (625 ILCS 5/11-501(a)(5) (West 2012)). The word "merges" is written on the sentencing order next to the sentence for the two convictions. Defendant filed a timely notice of appeal.
¶ 24 ANALYSIS
¶ 25 Defendant challenges his convictions for driving under the influence of alcohol and driving under the combined influence of alcohol and drugs. He raises four arguments on appeal: (1) he was denied effective assistance of counsel by his counsel's failure to move in limine to exclude Officer Kriv's testimony regarding defendant's performance on the HGN test and to object to this testimony at trial, (2) he was not proved guilty beyond a reasonable doubt of either offense as the field sobriety tests were not reliable determinants of his sobriety, (3) he was not proved guilty beyond a reasonable doubt of driving under the combined influence of alcohol and cannabis as there was no evidence he was under the influence of cannabis and (4) his conviction for driving under the influence of alcohol should be vacated under the one-act-one crime doctrine. ¶ 26 It is the State's burden to prove each element of the charged offense beyond a reasonable doubt. People v. Diaz, 377 Ill. App. 3d 339, 345 (2007). The elements required to prove driving under the influence of alcohol are (a) that the defendant was driving or in actual physical control of a vehicle (b) while under the influence of alcohol. 625 ILCS 5/11-501(a)(2) (West 2012). "A person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care." Diaz, 377 Ill. App. 3d at 344 (quoting Illinois Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. Supp.2009)). "Testimony concerning drinking, standing alone, cannot be equated with intoxication nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated." People v. Shackles, 44 Ill. App. 3d 1024, 1026 (1977). Instead, to find a defendant guilty of driving under the influence, the prosecution must establish that the defendant was under the influence of a drug or alcohol to a degree that renders him or her incapable of driving safely. People v. Workman, 312 Ill. App. 3d 305, 310 (2000). ¶ 27 "The State need not present chemical evidence of intoxication in the form of a Breathalyzer or blood test to obtain a conviction." Diaz, 377 Ill. App. 3d at 345. Instead, the credible testimony of the arresting officer may be sufficient to prove the offense of driving under the influence of alcohol. Id (citing People v. Janik, 127 Ill. 2d 390, 402 (1989)). The trial court may also find a conviction for driving under the influence of alcohol based on circumstantial evidence. Id. An officer's testimony that the defendant's breath smelled of an alcoholic beverage, his eyes were glassy and bloodshot, his speech was slurred, he was staggering and he failed a field sobriety test is relevant evidence of physical and mental impairment. People v. Elliott, 337 Ill. App. 3d 275, 281 (2003). Further, a defendant's refusal to submit to chemical testing shows a consciousness of guilt. People v. Garriott, 253 Ill. App. 3d 1048, 1052 (1993); 625 ILCS 5/11 -501.2(c)(1) (West 2012). Intoxication is a question for the trier of fact to resolve on the basis of having assessed the credibility of the witnesses and the sufficiency of the evidence. Janik, 127 Ill. 2d at 401. ¶ 28 The elements required to prove driving under the combined influence of alcohol and drugs are (a) that the defendant was driving or in actual physical control of a vehicle (b) while under the combined influence of alcohol and drugs and (c) to a degree that renders that person incapable of driving safely. 625 ILCS 5/11-501(a)(5) (West 2012). In order to sustain a conviction under section 11-501(a)(4), the State need not show the same level of alcohol intoxication as would be necessary to sustain a conviction for driving under the influence of alcohol (section 11-501(a)(2)). People v. Vanzandt, 287 Ill. App. 3d 836, 844 (1997).
"Section 11-501(a)(4) does not require that the person have enough alcohol in his system to render him incapable of driving safely, or that he have sufficient drugs in his system so as to render him incapable of driving
safely, only that there be some alcohol present and some other drug or drugs present and that the combined influence of the two render him incapable of driving safely." (Emphasis in original.) Id.¶ 29 To prove the offense of driving under the combined influence of alcohol and other drugs, the State must prove the defendant "consumed alcohol, ingested some other drug or drugs, and be under the combined influence of both" and that "the alcohol and the other drug or drugs, acting together, render the person incapable of driving safely." Vanzandt, 287 Ill. App. 3d at 844. "It is axiomatic that the other drug or drugs must have some intoxicating effect, either on its own or because of being combined with alcohol." Id at 845. "[A] layman is competent to testify regarding intoxication from alcohol, because such observations are within the competence of all adults of normal experience." Id. With regard to drugs, the testimony of police officers that a defendant was under the influence of drugs would be sufficient, provided that the officers had relevant skills, experience, or training to render such an opinion." Id.
"If a person under arrest refuses to submit to a chemical test under the provisions of Section 11-501.1, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof was driving or in actual physical control of a motor vehicle." 625 ILCS 5/11-501.2(c)(1) (West 2012).
¶ 30 1. Ineffective Assistance of Counsel
¶ 31 Defendant first argues that he was denied effective assistance of counsel at trial when his defense attorney failed to move in limine to exclude Officer Kriv's testimony regarding defendant's performance on the HGN test and to object to this testimony at trial. He asserts, in considerable detail, that Kriv's testimony shows that he failed to administer the HGN test in accordance with the procedures set forth by the NHTSA in its "DWI Detection and Standardized Field Sobriety Testing Student Manual." He argues that Kriv's testimony regarding defendant's performance on the HGN test was, therefore, unreliable and inadmissible and his counsel was ineffective for failing to seek to move in limine or otherwise object to this testimony. ¶ 32 In order to establish ineffective assistance of counsel, defendant must prove that (1) his counsel's performance was deficient and (2) he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); see also People v. Albanese, 104 Ill. 2d 504, 525-26 (1984) (adopting the Strickland standard for use in Illinois). Although both prongs of the test must be satisfied, an ineffective assistance claim may be disposed of on the prejudice grounds alone, without an examination of whether counsel was deficient. People v. Munson, 171 Ill. 2d 158, 184-85, 662 N.E.2d 1265, 1276 (1996). To demonstrate prejudice, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Munson, 171 Ill. 2d at 184-85, 662 N.E.2d at 1276. A "reasonable probability" exists if that probability sufficiently undermines confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. We find no prejudice here. ¶ 33 Defendant argues he was prejudiced by his counsel's failure to seek to exclude Officer Kriv's HGN testimony where the court relied on the testimony and where the other evidence that defendant was intoxicated was not sufficient to convict. He is correct that, if Officer Kriv failed to conduct the HGN field sobriety test in accordance with the NHTSA standards, Kriv's testimony regarding the test results was inadmissible. However, looking at the totality of the evidence against defendant without Kriv's testimony regarding the HGN test, we find there is no reasonable probability that, but for counsel's failure to obtain exclusion of this testimony, the result of the proceeding would have been any different as, even without the HGN test evidence, the evidence against defendant was overwhelming. ¶ 34 The State's evidence showed Officer Kriv stopped defendant's vehicle after observing defendant drive through a stop sign at an intersection without slowing down. It showed Kriv observed defendant with bloodshot eyes, slurred speech and an odor of alcohol on his breath and that defendant admitted to Kriv that he "had a couple beers." Excluding the HGN test, the evidence showed defendant failed two other field sobriety tests, the walk-and-turn test and one-legged stand test as he was unable to maintain his balance and follow directions. The evidence showed that it was Kriv's opinion, as an officer trained in the effects of alcohol on the body and with approximately 1,000 arrests for DUI in his 15-year career, that defendant was under the influence of alcohol. It showed Kriv based his opinion on speaking with defendant at the scene and "listening to him slur his words," defendant's bloodshot eyes, the "strong odor of alcoholic beverage" he originally observed on defendant's breath, not just on the results of the field sobriety tests. The judge viewed and heard the video/audio of the traffic stop, defendant's performance on the tests and his conversation with Kriv in the squad car. ¶ 35 The evidence also showed that, in the interview room, Kriv recognized an odor of cannabis on defendant's breath and defendant admitted to Kriv that he had smoked "half a blunt of marijuana" at his girlfriend's house. The evidence showed Kriv was a police officer trained on the effects and identification of cannabis and had, in his own words, "been around burnt cannabis" during numerous traffic stops and arrests. He found the smell of cannabis "unmistakable" and recognized the smell on defendant's breath was the same as the odor he had smelled in his training and experience. The evidence showed defendant refused to go to the hospital for further testing because, as he told Kriv, he had been smoking marijuana his whole life and a test for the substance would most likely come back positive. ¶ 36 Intoxication is a question for the trier of fact, here the trial court, to resolve on the basis of having assessed the credibility of the witnesses and the sufficiency of the evidence. Janik, 127 Ill. 2d at 401. The evidence presented here, even without Officer Kriv's testimony regarding the results of the HGN test, was ample for the judge to find defendant guilty of driving under the influence of alcohol and driving under the combined influence of alcohol and cannabis beyond a reasonable doubt. A new trial without the HGN testing evidence would not produce a different result. ¶ 37 Further, although the trial court relied on Officer Kriv's testimony regarding the HGN test results in making its findings of guilt, it did not do so exclusively and does not appear to have relied on the HGN test in particular. The trial court's decision shows it took into account all of the considerable evidence against defendant as well as defendant's own evidence. The court specifically mentioned the HGN test only once in its decision, observing that "we do have the officer testifying to the field sobriety tests, the horizontal gaze - or even before that, I think that the defendant here had an accent, there's certainly significant, and I emphasize significant, slurring in the video." (Emphasis added). It did not expressly mention the HGN test again. Instead, it noted the "significant amount of clues in all these field sobriety tests" and, with regard to defendant's alleged accent, "if the court observed an accent, *** it was certainly slurring sound and that's not controlling *** but it's coupled with all the other tests here that to me show that in many respects, the Defendant failed, that he was under the influence." ¶ 38 The court also mentioned inter alia that it found the video "rather significant in terms of the story being told that night" as it saw defendant's vehicle "definitely go through a stop sign without any stopping at all," "significant, slurring" and defendant "unable really at times to put a full sentence together." It "observed his difficulty, trouble keeping his balance, observed him starting over again, observed him placing his foot down to gain his balance." The court mentioned Officer Kriv's testimony regarding defendant's bloodshot eyes, the odor of alcohol and the difficulty defendant had walking as well as defendant's admission regarding smoking cannabis. It also considered the fact that defendant's accent might explain the slurred speech and that his alleged knee injury might explain his inability to keep his balance. Further, in the trial court's denial of defendant's motion to reconsider, it made no specific mention of the HGN test, stating only that it thought there was "sufficient evidence" as "[t]here [were] plenty of clues in the field sobriety tests, many of the other indicia, finding a person guilty beyond a reasonable doubt were present at the scene." The court took all of the evidence into account in making its decision and did not "explicitly" rely on the HGN test as defendant asserts. ¶ 39 There being overwhelming evidence to prove defendant guilty of driving under the influence of alcohol and under the combined influence of alcohol and cannabis even without the HGN test and nothing to show that the trial court particularly relied on Officer Kriv's testimony regarding the results of the HGN test in reaching its decision, we find admission of that testimony did not undermine confidence in the outcome of the trial. Accordingly, defendant suffered no prejudice from his counsel's failure to move to exclude the testimony regarding the HGN test. Finding that defendant cannot meet the second prong of the Strickland test, we conclude that defendant has not proved his trial counsel was ineffective.
"[E]vidence of HGN field-sobriety testing, when performed according to the NHTSA protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired." (Emphasis added.) People v. McKown, 236 Ill. 2d 278, 306 (2010). Where a properly trained officer has followed the NHTSA procedures, the officer may give expert testimony regarding the results of the HGN test and "use the HGN test results as a part of the basis for his opinion that the defendant was under the influence and impaired." Id. However, a police officer's testimony regarding the HGN test "he performed in the absence of a proper foundation," i.e., where he failed to perform the test in compliance with NHTSA standards, is error. Id. at 310-11.
On the video recording, defendant is heard telling Officer Kriv that he drank "two beers."
Having viewed and listened to the video and audio recording taken by the equipment in Officer Kriv's squad car, we concur with the trial court's assessment that defendant went "through [the] stop sign without stopping at all," exhibited significant slurring, was at times unable to put a full sentence together and had trouble keeping his balance during the walk-and-turn test.
¶ 40 2. Reasonable Doubt re. Reliability of Field Sobriety Tests
¶ 41 Defendant next argues that he was not proved guilty beyond a reasonable doubt of either driving under the influence of alcohol or driving under the combined influence of alcohol and drugs as the field sobriety tests were not reliable determinants of sobriety. He asserts "field sobriety tests are not reliable determinants of sobriety, where the results are, in the best case scenario, only 80% accurate in indicating impairment" and argues the State failed to present any other evidence to show that he had consumed an amount of alcohol that would impair his driving skills. ¶ 42 When faced with a challenge to the sufficiency of the evidence, a reviewing court applies the reasonable doubt standard: whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Campbell, 146 Ill. 2d 363, 374 (1992). The reviewing court will not substitute its judgment for that of the finder of fact on questions regarding the weight of the evidence, or the credibility of witnesses. Id at 375. Furthermore, we will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or so unsatisfactory as to justify a reasonable doubt of the defendant's guilt. Id. ¶ 43 Defendant argues the trial court may have given too much weight to tests that were inaccurate to begin with and, as the State failed to present other evidence that his ability to drive was impaired, it failed to prove him guilty beyond a reasonable doubt. Defendant's argument is in large part directed to showing that the field sobriety tests are unreliable. Citing assorted studies on the reliability of field sobriety tests, he first asserts the tests themselves are unreliable. He then engages in a detailed examination of how Officer Kriv failed to properly administer the sobriety tests and asserts Kriv's failure to properly administer the tests also produced results that are not reliable determinants of sobriety. ¶ 44 We find defendant's argument that the sobriety tests themselves are unreliable to be unpersuasive. It is well settled in Illinois that field sobriety tests are reliable. State v. Eagletail, 2014 IL App (1st) 130252, ¶ 39 (citing People v. Robinson, 349 Ill. App. 3d 622, 631 (2004) ("HGN test, when used with the walk-and-turn and one-leg stand tests, is the most accurate and effective method of detecting impairment" (citing National Highway Traffic Safety, U.S. Department of Transportation, Psychophysical Tests for DWI Arrests, No. DOT-HS-802—424 at 39 (June 1977))). With regard to his assertion that Officer' Kriv's failure to properly administer the tests rendered the results unreliable, we note that whether a field-sobriety test was performed correctly goes to the test's admissibility, which is for the trial court to determine. Id at ¶ 39 (citing People v. McKown, 236 Ill. 2d 278, 305-11 (2010)). ¶ 45 Further, assuming arguendo that the tests were unreliable and admitted in error, "we may hold the admission to be harmless '[w]hen the competent evidence in the record establishes the defendant's guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result.' " McKown, 226 Ill. 2d at 276 (quoting People v. Arman, 131 Ill. 2d 115, 124 (1989)). We find any error in the admission of the sobriety test results was harmless here given that Officer Kriv's testimony, taken together with the video evidence, provided sufficient evidence to prove beyond a reasonable doubt that defendant was both under the influence of alcohol and under the combined influence of alcohol and other drugs, was operating a vehicle in this condition and was not capable operating that vehicle safely. ¶ 46 As stated previously, the credible testimony of the arresting officer may be sufficient to prove the offense of driving under the influence of alcohol. Janik, 127 Ill. 2d at 402. The arresting officer's testimony that the defendant's breath smelled of an alcoholic beverage, his eyes were glassy and bloodshot, his speech was slurred and he was staggering is relevant evidence of physical and mental impairment. Elliott, 337 Ill. App. 3d at 281. Officer Kriv, an experienced police officer trained in the effects of alcohol and cannabis on the body and in the identification of cannabis, gave such testimony here, testifying that defendant exhibited bloodshot eyes, slurred speech and breath with both the odor of alcohol and cannabis. He also testified that defendant admitted that he drank several beers and smoked cannabis before driving and that defendant refused to submit to additional testing because cannabis would be found in his system. Further, Kriv testified that defendant's speech was confused and defendant adamantly denied going through the stop sign and did not even know on which street he was driving. The court relied on Kriv's testimony and necessarily, therefore, found it credible. It was for the trial court to determine Kriv's credibility, the weight to be given to his testimony and the reasonable inferences to be drawn from that evidence. People v. Collins, 214 Ill. 2d 206, 217 (2005). Defendant points to nothing in the record that would lead us to conclude that the court misjudged Kriv's credibility. Accordingly, Officer Kriv's testimony constituted sufficient evidence to convict, even without his testimony regarding the results of the sobriety tests, when the trial court found his testimony credible. Diaz, 377 Ill. App. 3d at 345-46. ¶ 47 Defendant also argues that, reliability of the sobriety tests aside, the gravamen of driving under the influence is the impairment of one's ability to drive safely and that the evidence showed he operated his vehicle in a generally safe manner. He also argues that the State presented no evidence that consuming two beers would impair an individual's ability to drive a vehicle, especially someone like him as is 6' 2" and weighs approximately 175 pounds. Defendant may have, as he claims, been driving safely for 45 minutes before he encountered Officer Kriv. However, that does not negate the fact that, as the trial court found, the video shows the vehicle driven by defendant "definitely go through a stop sign without any stopping at all and that "[going] through a stop sign [is] significant" and "erratic driving." Sobriety tests aside, the evidence supports finding beyond a reasonable doubt that defendant was incapable of operating his vehicle in a safe manner.
Sobriety test results "are admissible, as is any other evidence of a defendant's behavior, to prove that the defendant is under the influence of alcohol, provided a proper foundation has been laid." People v. Buening, 229 Ill. App. 3d 538, 546 (1992) (discussing HGN test results). "A proper foundation should consist of describing the officer's education and experience in administering the test and showing that the procedure was properly administered." Id.
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¶ 48 3. Reasonable Doubt
¶ 49 Defendant also argues he was not proved guilty beyond a reasonable doubt of being under the combined influence of alcohol and cannabis (625 ILCS 5/11-501(a)(5) (West 2012)). He asserts there was no evidence regarding how much cannabis was present, when he ingested it or whether the cannabis had any intoxicating effect and, therefore, no evidence that he was under the influence of cannabis at the time of the traffic stop. He also points out that the trial court acquitted him of driving under the influence of cannabis (625 ILCS 5/11-501(a)(6) (West 2012)). ¶ 50 The court's finding that defendant was not guilty of driving under the influence of cannabis does not necessarily imply that it found that he did not have sufficient cannabis in his system combined with alcohol to render him incapable of driving safely. To sustain a conviction for driving under the combined influence of alcohol and drugs, there must be evidence in the record that defendant ingested some amount of a drug or drugs that, in combination with some amount of alcohol he also ingested, rendered him incapable of driving safely. Vanzandt, 287 Ill. App. 3d at 844. The evidence need not show that his ingestion of drugs alone rendered him incapable of driving safely. Id. Officer Kriv testified that he smelled cannabis on defendant's breath and recognized the odor based on his 15-years experience as a police officer, training and the fact that he found the odor "unmistakable." Kriv also testified that defendant admitted to smoking cannabis that evening, refused additional testing and admitted cannabis would be in his blood as a result of his chronic use of the drug. Taken together with Kriv's testimony showing defendant was driving unsafely by driving through a traffic light without slowing down, and that he had bloodshot eyes and was under the influence of alcohol, we find Kriv's testimony shows beyond a reasonable doubt that the cannabis, in combination with alcohol, rendered defendant incapable of driving safely.
¶ 51 4. Mittimus
¶ 52 Lastly, defendant argues that one of his convictions for driving under the influence should be vacated as both convictions arise from the same single continuous act of driving while under the influence. Under the one-act, one-crime doctrine, a defendant may not be convicted of multiple offenses that are based upon precisely the same single physical act. People v. Johnson, 237 Ill. 2d 81, 97 (2010) The State agrees that defendant's convictions under count 1 for driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)) and under count 6 for driving under the combined influence of alcohol and drugs (625 ILCS 5/11-501(a)(5) (West 2012)) should merge. The sentencing order already reflects the handwritten notation "merges" next to the convictions for counts 1 and 6. However, in the interest of clarity and pursuant to our authority under Illinois Supreme Court Rule 615(b)(1) (eff. Aug. 27, 1999), we order the clerk of the circuit court to amend the mittimus to reflect only a single conviction for driving under the influence, specifically for driving under the combined influence of alcohol and drugs (count 6). The conviction for driving under the influence of alcohol (count 1) is vacated.
¶ 53 CONCLUSION
¶ 54 For the reasons stated above, we affirm the decision of the trial court finding defendant guilty of driving under the combined influence of alcohol and drugs (count 6), vacate the conviction for driving under the influence of alcohol (count 1) and order the mittimus corrected. ¶ 55 Affirmed in part; vacated in part; mittimus corrected.