People v. Gocmen

2018 IL 122388

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 122388)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

AHMET GOCMEN, Appellee.

Opinion filed September 20, 2018.

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

Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, Theis, and

Neville concurred in the judgment and opinion.

OPINION

¶1 Upon defendant’s arrest for driving under the influence of drugs (625 ILCS

5/11-501(a)(4) (West 2014) (DUI/drugs)), the arresting officer requested that he

submit to chemical testing and warned him that his refusal would result in statutory

summary suspension of his driver’s license. Id. § 11-501.1(c). After he refused to

submit to chemical testing, his driver’s license was summarily suspended pursuant

to section 11-501.1(e) of the Illinois Vehicle Code. Id. § 11-501.1(e). The circuit

court of Will County granted his petition to rescind (id. § 2-118.1(b)), and the

appellate court affirmed (2017 IL App (3d) 160025). This court granted the State’s

petition for leave to appeal pursuant to Illinois Supreme Court Rules 315 (eff. Mar.

15, 2016) and 612(b)(2) (eff. July 1, 2016) and, for the reasons that follow, reverses

the judgment of the circuit court and the appellate court.

¶2 BACKGROUND

¶3 Defendant filed a motion to rescind, and at the hearing that followed, he argued

that the officer lacked reasonable grounds to make the arrest. The only witness

called by the defendant was the arresting officer, Adam Beaty, who testified that he

had been a police officer for two years and that he had received DUI/alcohol

detection training, but no specific DUI/drug detection training.

¶4 According to his testimony on direct examination, at 11:10 a.m. on September

14, 2015, he responded to a motorist’s call reporting an unconscious person in a

vehicle, possibly having a seizure. When he arrived, paramedics were already on

the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with

the passenger side tires on the grass and the driver’s side tires on the road. The

vehicle’s transmission was in park, and the motor was running. The officer

observed defendant behind the wheel, with his foot on the brake and his left hand

on the steering wheel.

¶5 Initially, defendant did not respond to the paramedics’ commands to exit the

vehicle. He insisted that he was able to drive and said, incorrectly, that he was

northbound on Route 59. Eventually, the paramedics convinced him to leave the

vehicle; they placed him in the ambulance and transported him to the hospital.

¶6 Asked about his other observations at the scene, the officer testified that he saw

a Red Bull can “on the passenger’s side in plain view.” The can had been cut or torn

in half and had burn marks on its interior. On the outside bottom surface of the can, 1

he saw a brown residue. He performed a “NARK swipe” test of the residue, which,

1

The appellate court opinion incorrectly states that the residue was on the inside of the

can. 2017 IL App (3d) 160025, ¶ 5.

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he said, showed the presence of “opiates.” He testified that although he had been

trained to conduct this test, he had not previously performed it in the field.

¶7 He also saw an uncapped one-milliliter syringe on the passenger seat. He

described the syringe as having been “used.” He also found a small plastic bag

containing a brown granular substance in defendant’s wallet in the center console.

Results of testing of this substance were not available at the time of the hearing.

¶8 Asked if he made any other observations of the defendant before he left the

scene, the officer testified that “[o]ther than what paramedics told me, no.” He did

not conduct any field sobriety tests. At the hospital, the officer observed that

defendant was “tired and lethargic.”

¶9 Asked about the basis for his decision to arrest defendant, the officer testified

that he based his decision on the results of the “NARK swipe, which immediately

turned from pink to blue, indicating the positive presence of opiates,” the syringe

“in his immediate area of control,” and the small plastic bag containing a granular

substance that he found in the defendant’s wallet in the center console of the

vehicle. He also testified that prior to the arrest defendant told him that he was

diabetic.

¶ 10 On cross-examination, the officer testified that he spoke to the paramedics at

the scene to ask if they had seen any signs of intoxication. They reported that

defendant did not smell of alcohol, but they did observe a “fresh track mark” on his

arm where a needle had been used. Paramedics also reported that defendant was

sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and

was drifting in and out of consciousness.

¶ 11 With regard to his training, the officer explained that he was taught how to

perform the NARK swipe during his field training after he was hired as a police

officer. Prior to this event, he had not previously performed the test in the field. At

the scene, he removed latex gloves from a sealed package and put them on. Then he

opened the aluminum foil package containing the swipe. When he touched it to the

bottom of the can, “it immediately turned a blue color,” indicating the “positive

presence of opiates.” He further testified that he used this information as a basis for

arresting defendant.

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¶ 12 The defense rested. The trial court denied the State’s motion for a directed

finding and ruled that the burden had shifted to the State. The State did not present

any evidence but argued that the officer’s testimony demonstrated that he made a

reasonable conclusion based on what he had observed.

¶ 13 The court granted defendant’s petition to rescind, finding that the officer did not

have reasonable grounds to believe defendant had been in control of the vehicle

while under the influence of alcohol or drugs. After stating that it was “putting the

evidence in light of the petitioner,” the court stated that, “unlike alcohol,” a

showing of drug intoxication “can’t be based purely on lay testimony”; the witness

must be qualified as an expert and must establish the effects of the drugs. Further,

the court stated that “[s]yringes and such are also connected to a diabetic,

depending on the nature of your diabetes. Track marks probably would be found if

you have to take insulin shots every single day.” Although defendant was not

arrested for DUI/alcohol and the officer did not testify to any suspicion that alcohol

was involved, the trial court noted that “[e]ven the paramedics, according to the

officer’s testimony, indicated they didn’t even smell any alcohol.” In addition,

although the officer tested for the presence of a drug, there was no evidence that

“this particular individual” had taken “this particular drug” or that it was “in their

[sic] system, and not related to him being a diabetic, and *** having an accident.”

Concluding, the trial court stated that, to show probable cause, “an officer must also

show the [effects] of the drug on the individual that he found, and none of that was

done.” The trial court denied the State’s motion to reconsider.

¶ 14 The appellate court acknowledged the facts regarding “(1) the physical

symptoms defendant was presenting, (2) the substance in defendant’s wallet,

(3) the syringe, (4) the track mark, and (5) the Red Bull can which tested positive

for opiates.” Nevertheless, the appellate court affirmed, agreeing with the trial court

that these facts were insufficient to establish probable cause for an arrest for

DUI/drugs because the officer “had no training or experience that would enable

him to distinguish between a diabetic reaction and a drug reaction.” 2017 IL App

(3d) 160025, ¶ 11. The appellate court further noted that defendant’s physical

symptoms were reported to the officer by the paramedics; the officer did not

directly observe them. Id. ¶ 14. The court questioned whether the NARK swipe test

was properly performed because the officer testified it tested positive for opiates

while cocaine is not an opiate. Id. Finally, a person with no specialized training

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could not properly opine on the “detection of controlled substances,” unlike the

detection of alcohol use, the effects of which are “commonly known.” (Internal

quotation marks omitted.) Id. ¶ 15.

¶ 15 The dissent noted that the arresting officer need not have been “absolutely

correct” in his conclusion that the driver was under the influence of drugs; he need

only have been reasonable in his assessment. Id. ¶ 24 (Schmidt, J., dissenting). The

dissent also made the point that the defendant did not testify at the rescission

hearing, so the only evidence regarding his alleged diabetes was the officer’s

testimony that defendant said he was diabetic. Based only on that uncorroborated

statement, the trial court and the appellate court believed that the defendant was

diabetic and that his symptoms could have been caused by this medical condition.

Id. ¶ 25. Yet, the dissent noted, defendant had the burden of proof at that stage of

the proceedings, and he failed to put on any evidence to support his statement that

he was diabetic. Indeed, the dissent observed, defendant was hardly “the first drug

user to tell police he is diabetic upon being found with a hypodermic syringe.” Id.

¶ 28.

¶ 16 In its modification of the opinion upon denial of rehearing, the majority

responded to the dissent, noting that the trial court found that defendant met his

burden of showing a prima facie case for rescission, “as evidenced by its denial of

the State’s motion for directed finding.” Id. ¶ 19 (majority opinion). The appellate

court further stated that, because the State did not present additional evidence after

its motion for directed finding was denied, it did not meet its burden of proof. Id.

The court limited its holding to situations where the officer lacked “any training or

experience in DUI drugs and defendant provided an alternative explanation of

diabetes” via the officer’s own testimony. Id. In such a circumstance, the officer

“would not have been able to form a reliable opinion on the cause of defendant’s

condition.” Id. Because the State “failed to rebut” the defendant’s prima facie case

for rescission, rescission was proper. Id. However, had the officer “had any

experience or training or had the State provided some evidence to rebut the

rescission, the outcome might have been different.” (Emphasis in original.) Id.

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¶ 17 ANALYSIS

¶ 18 A motorist may request a judicial hearing for rescission of a statutory summary

suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS

5/2-118.1(a) (West 2014). The scope of the hearing is limited to four specific

statutory grounds for rescission. One of the issues that may be raised is “whether

the officer had reasonable grounds to believe that the person was driving or in

actual physical control of a motor vehicle upon a highway while under the

influence of alcohol, other drug, or combination of both[.]” Id. § 2-118.1(b)(2).

¶ 19 This court has equated the “reasonable grounds” standard with the probable

cause standard applied in the context of search and seizure under the fourth

amendment. People v. Wear, 229 Ill. 2d 545, 560, 563 (2008). Under this standard,

probable cause exists when the facts known to the officer at the time are sufficient

to lead a reasonably cautious person to believe that the arrestee has committed a

crime, based on the totality of the circumstances. The standard is the probability of

criminal activity, not proof beyond a reasonable doubt or even that it be more likely

than not. Id. at 563-64.

¶ 20 The motorist has the initial burden of establishing a prima facie case for

rescission. If he does so, the burden shifts to the State to come forward with

evidence justifying the suspension. Id. at 559-60; see also People v. Orth, 124 Ill.

2d 326, 338, 340 (1988) (motorist has initial burden of making prima facie case for

rescission; to make prima facie case, defendant must present evidence to support at

least one of the statutory grounds for rescission).

¶ 21 When reviewing a decision to rescind a statutory summary suspension, we

apply the two-part standard of review applicable to review of suppression hearings.

Wear, 229 Ill. 2d at 561. The trial court’s factual findings are reviewed under the

manifest weight of the evidence standard, while the ultimate legal ruling regarding

rescission is reviewed de novo. Id. at 561-62.

¶ 22 We note that the trial court’s statement that it would review the evidence in the

light most favorable to the defendant at the prima facie stage was incorrect.

Because the defendant has the burden at this stage, the trial court may not favor his

case in this manner.

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¶ 23 As appellant, the State formulates this issue for this court as whether, regardless

of the officer’s training or experience, the presence of drug-related evidence in the

defendant’s vehicle and on his person, along with his physical symptoms, provided

reasonable grounds for the arrest. We conclude, however, that a more precise

formulation of the issue is whether defendant made a prima facie case that the

officer lacked reasonable grounds to arrest him for DUI/drugs. This requires us to

answer two questions. First, must an officer be qualified as an expert to testify

regarding his inference from the totality of circumstances that a motorist was

driving under the influence of drugs? And, if not, did the totality of the

circumstances in the present case provide reasonable grounds for the arrest of

defendant for DUI//drugs?

¶ 24 The Need for Expert Testimony

¶ 25 Under our rules, a witness who is not an expert may testify to his opinions or

inferences unless they are “based on scientific, technical, or other specialized

knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon,

the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011).

¶ 26 The trial court found that the officer lacked probable cause to arrest defendant

for DUI/drugs because he was not qualified as an expert on the effects of drug use.

Similarly, the appellate court concluded that a person with no specialized training

could not properly opine on the “detection of controlled substances,” unlike the

detection of alcohol use, the effects of which are “commonly known.” (Internal

quotation marks omitted.) 2017 IL App (3d) 160025, ¶ 16. In reaching this

conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d

915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985). 2017 IL App (3d) 160025,

¶ 16.

¶ 27 In Shelton, an officer testified at a criminal jury trial that the defendant was

under the influence of drugs, basing his conclusion on the manner in which he was

driving, his conduct during the traffic stop, his failing all of the field sobriety tests

given, and his statement to the officer that he was “ ‘on Tylenol 3 with codeine.’ ”

Shelton, 303 Ill. App. 3d at 917-18. During the traffic stop, the defendant’s

behavior included telling the officer that he did not have a driver’s license before

giving him the license, his suggestion that the officer should go for a ride with him,

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his statement that he was “ ‘getting ready to run’ ” followed by a statement that he

was just kidding, his constant talking, his inability to stand still, his lack of balance,

and his threats against the officer and his family. Id.

¶ 28 After finding that the evidence was sufficient to prove the defendant guilty of

DUI/drugs beyond a reasonable doubt (id. at 922), the appellate court reversed the

conviction on three grounds, one of which was that the State did not lay a proper

foundation for the officer’s opinion testimony that the defendant was under the

influence of drugs (id. at 926-27). The court stated that, while a lay person could

testify regarding alcohol intoxication, “the effects of drugs are not commonly

known, and training and experience are necessary to understand their effects on

people.” Id. at 925. The court also noted that the officer had “ ‘limited training’ ” in

detecting drug use and lacked “extensive personal experience with drug users.” Id.

at 926.

¶ 29 We have reservations about the court’s analysis in Shelton. Although it found

the evidence presented sufficient to support the jury’s verdict beyond a reasonable

doubt, the appellate court in that case nevertheless commented that the trial court

found “ ‘no evidence *** in the record’ ” of the effects of any drugs (id.),

apparently discounting the defendant’s speeding, his odd and agitated behavior

during the traffic stop, and his failure of field sobriety tests (id. at 917-18). While

such conduct is not always indicative of drug intoxication, it was consistent with

the defendant’s being under the influence in light of his admission that he was “on”

a prescription pain killer. We, thus, disagree with the Shelton court that expert

testimony was necessary to present to the jury the officer’s assessment that the

defendant was under the influence. To the extent that Shelton requires expert

testimony in every case in which an officer’s finding of probable cause is based on

his or her inference from the totality of circumstances that the defendant was under

the influence of drugs, it is hereby overruled.

¶ 30 Turning to Stout, the defendant argues that our holding in that case stands for

the proposition that “skill and knowledge are essential to an officer’s determination

of whether probable cause exists” and that the individual police officer’s training

and experience “are determinative in showing that the officer’s decisions were not

based on hunches and prejudices.” He mischaracterizes our holding.

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¶ 31 In Stout, this court stated that an “officer’s experience and training in the

detection of controlled substances” must be taken into account, not that expertise

and specialized training are essential or determinative. Stout, 106 Ill. 2d at 87. In

that case, the police officer conducted a warrantless search of the defendant during

a traffic stop after he detected the odor of burning cannabis emanating from his car.

Id. at 81. The trial court granted the defendant’s motion to suppress the drugs found

during the search, and the appellate court affirmed. The sole issue before this court

was “whether the detection of the odor of cannabis emanating from the defendant’s

vehicle gave the arresting officer probable cause to conduct a warrantless search.”

Id. at 82.

¶ 32 This court noted that what “constitutes probable cause for searches and seizures

must be determined from the standpoint of the arresting officer, with his skill and

knowledge, rather than from the standpoint of the average citizen under similar

circumstances.” Id. at 86. The officer testified that he had smelled burning cannabis

on numerous occasions during his seven years of experience as a patrol officer. Id.

at 87. Holding that this was a sufficient basis to establish probable cause, this court

rejected the dissent’s argument that additional corroboration of the presence of

cannabis was required. Id. at 88. We did not require expert testimony or evidence of

specific training to support the officer’s finding of probable cause in every case

where probable cause is based on the officer’s assessment regarding the presence or

use of drugs.

¶ 33 Further, Stout is consistent with the standard that probable cause to arrest exists

when the facts known to the officer at the time of the arrest are sufficient to lead a

“reasonably cautious person” to believe that the arrestee has committed a crime,

based on the totality of the circumstances. See Wear, 229 Ill. 2d at 563-64. A

“reasonably cautious person” is not an “average citizen” or the familiar “reasonable

person.” As we noted in Stout, the question of probable cause must be viewed from

the standpoint of the arresting officer, acting with reasonable caution.

¶ 34 In the end, Stout’s holding goes to the credibility of the officer’s testimony

regarding probable cause. An officer with many years of experience or with

specialized training relevant to the issue may be more credible than a rookie. That

said, nothing in our precedent requires expert testimony in every case involving the

question of whether a defendant was under the influence of drugs. The issue in

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Stout was the reliability of the officer’s conclusion that the odor he smelled was

burning cannabis and not incense, stale food, or bad cologne. His experience and

personal familiarity with the scent of burning cannabis were relevant to the

existence of probable cause and were properly taken into consideration by the

court.

¶ 35 In some circumstances, expert testimony regarding the basis for an officer’s

finding of probable cause is required. In People v. McKown, 236 Ill. 2d 278 (2010),

the defendant was convicted of DUI/alcohol, based in part on the results of the

horizontal gaze nystagmus (HGN) test performed by the arresting officer. The

defendant argued on appeal that the HGN test did not meet the Frye standard for

admissibility of scientific evidence. We held that “evidence of HGN field-sobriety

testing, when performed according to *** 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.” Id. at 306. “A properly trained

police officer who performed the HGN field test in accordance with proper

procedures may give expert testimony regarding the results of the test.” Id.

¶ 36 Although we found that the HGN test met the Frye standard, this court reversed

because a proper foundation had not been laid for the police officer’s testimony

regarding the test he administered. Because the record contained other evidence

that could support a guilty verdict even without the HGN evidence, the case was

remanded for a new trial. Id. at 315.

¶ 37 In the present case, there is no question that the defendant was impaired. The

probable cause question is whether the relatively inexperienced officer could have

reasonably concluded that the defendant’s obvious impairment was due to his use

of drugs. Had the officer conducted field sobriety tests, his experience and

expertise in conducting such tests and interpreting the results would be at issue.

However, no such tests were conducted, and the results of such tests were not the

basis for the arrest. The officer’s conclusion that defendant was under the influence

of drugs was not based on scientific, technical, or specialized knowledge that

required specialized training or experience.

¶ 38 The trial court and the appellate court held categorically that a police officer

could not opine as to whether a motorist was under the influence of drugs without

being qualified as an expert witness. We reject this conclusion, which is not

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supported by our precedent.

¶ 39 Totality of the Circumstances

¶ 40 Having rejected the lower court’s insistence on expert testimony in this case,

we turn to the question of whether defendant made a prima facie case that the

officer lacked probable cause to arrest him for DUI/drugs. This question requires

assessment of the totality of the circumstances. Wear, 229 Ill. 2d at 563-64.

¶ 41 The offense of DUI/drugs requires that the individual “drive or be in actual

physical control” of a vehicle while “under the influence of any other drug or

combination of drugs to a degree that renders the person incapable of safely

driving.” 625 ILCS 5/11-501(a)(4) (West 2014). Defendant was behind the wheel

of the vehicle, with the motor running, on Route 52, so he was in actual physical

control of a motor vehicle on a state highway. Clearly, he was incapable of driving

safely, having driven his sport utility vehicle off the road while semiconscious. The

only question is whether he was impaired as the result of a medical emergency, the

ingestion of drugs or alcohol, or some combination thereof.

¶ 42 The underlying facts are not in dispute. Thus, we are not considering whether

the trial court’s factual findings were against the manifest weight of the evidence.

Our review is de novo, considering whether the trial court properly found that

defendant made a prima facie case for rescission. Wear, 229 Ill. 2d at 561-62.

¶ 43 First, defendant’s physical condition was consistent with drug use. The trial

court, however, overlooked defendant’s semiconscious state and his disorientation,

which a reasonably cautious person might suspect was due to drug or alcohol

ingestion. The appellate court also discounted defendant’s physical symptoms

because the officer “never observed defendant and only knew these symptoms by

speaking to the paramedics.” 2017 IL App (3d) 160025, ¶ 14. However, the officer

did observe the defendant at the scene and at the hospital, where they spoke.

Further, hearsay is a permissible basis for a finding of probable cause. People v.

Macias, 39 Ill. 2d 208, 213 (1968) (probable cause “may be founded on hearsay

evidence” and “is based upon the factual and practical considerations of everyday

life upon which reasonable and prudent men, not legal technicians, act”); see also

People v. Horine, 2017 IL App (4th) 170128, ¶ 16 (in hearing on defendant’s

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petition to rescind statutory summary suspension, “the officer’s testimony, even if

it includes hearsay, is permissible as it provides the court with the necessary

information to rule on the petition. Although such testimony may constitute

impermissible hearsay at trial, such testimony is permissible in this setting.”).

Indeed, if this were not the case, a police officer could not find probable cause

based on the statement of a victim or a witness to a crime. Thus, the officer properly

relied on his own observations, information provided by the paramedics, and his

observations of their interaction with defendant. While defendant’s physical

condition, standing alone, did not demonstrate that his impairment was

drug-induced, it was consistent with drug use and supports the officer’s conclusion.

¶ 44 Second, the officer performed a swipe test on the burned Red Bull can and

detected the presence of opiates. The appellate court found it “curious” that a

“Cocaine ID” test would be “used to test for opiates when cocaine is not an opiate,”

citing People v. Vernor, 66 Ill. App. 3d 152, 154-55 (1978), for the proposition that

opiates are narcotic drugs while cocaine is not. On this basis, the appellate court

concluded that “it is unclear whether Beaty even administered the correct type of

test, and if so, whether he administered it correctly.” 2017 IL App (3d) 160025,

¶ 14.

¶ 45 However, while the appellate court stated that the officer conducted a “NARK

Cocaine ID Swipe” of the residue, the officer did not mention the word “cocaine” in

his testimony. He twice referred to the “NARK swipe” and both times stated that it

tested positive for “opiates.” The only mention of a “Nark Cocaine ID Swipe” was

by the State’s Attorney on cross-examination, when asking the officer about the

swipe test. If anyone misspoke, it was the State’s Attorney, not the officer. We note

that NARK tests are available for a variety of substances, including opiates and

cocaine. See Nark II Presumptive Drug Tests, Evident, Inc., https://www.shop

evident.com/category/drugs-narcotics/nark-ii-presumptive-drug-tests (last visited

Sept. 17, 2018) [https://perma.cc/38FN-WSVN]. Thus, the appellate court’s

inference from the testimony is unfounded. The officer performed a swipe test for

opiates, which revealed the presence of opiates.

¶ 46 Further, defendant did not offer an innocent explanation for the presence of the

burn-marked metal can, and none is readily apparent. Even a rookie police officer

would be aware of this commonly known device for “cooking” drugs prior to

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injection, as would any person who watches crime dramas on film or television.

Combined with defendant’s physical and mental state, the positive swipe test for

opiates supports probable cause for arrest for DUI/drugs.

¶ 47 Third, other evidence showed the likely, or at least possible, presence of illicit

drugs. The State asserts that the appellate court majority erred by giving “no

evidentiary weight” to the packet of brown granular substance the officer found in

defendant’s wallet merely because test results of the substance were not available at

the time of the hearing. Instead, the State argues, the presence of the substance was

a factor supporting probable cause to conclude that defendant was under the

influence of drugs. In support of this position, the State cites People v. Davis, 33 Ill.

2d 134, 137 (1965), for the proposition that the presence of a substance that might

be illicit is sufficient grounds to make a drug-related arrest, even though the

substance had not yet been tested.

¶ 48 The State’s reliance on Davis overlooks the fact that defendant was not being

arrested for possession of illegal drugs. Rather, he was arrested for driving under

the influence of drugs. Although it was reasonable under the circumstances for the

officer to suspect that the substance was an illicit drug, the mere presence of the

unidentified substance does not—standing alone—provide reasonable suspicion

that the individual in possession of the substance was under the influence.

However, the packaging, the location of the small plastic bag, and the appearance

of its contents support the officer’s inference that the driver was drug-impaired,

especially considering other circumstances. Indeed, given the presence of this

suspicious substance and the absence of insulin and a blood glucose meter in the

vehicle, it was a reasonable inference that the defendant had recently injected a

substance other than insulin.

¶ 49 Fourth, there was evidence of intravenous drug use by the defendant. The

officer’s testimony, which alluded to a “fresh” track mark, does not clearly

distinguish between the sort of “track marks” that are caused by repeated

intravenous drug use and a single mark on his arm consistent with a recent

intravenous injection, as by using the syringe found in the vehicle. Both the trial

court and the appellate court accepted as fact that the defendant’s arms showed

track marks indicative of repeated intravenous injections. Because this evidence

was elicited by the defendant, any failure to clarify is his responsibility. Thus, on

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the record before us, based on testimony elicited by the defendant, we conclude that

he had not only a mark showing a recent intravenous injection but also track marks

indicative of repeated intravenous drug use.

¶ 50 That such track marks are frequently seen in users of illegal drugs is a matter of

common knowledge. Courts frequently accept such testimony without the need for

explanation by an expert. See, e.g., People v. House, 232 Ill. App. 3d 309, 314

(1992) (defense counsel, arguing that defendant was eligible for Treatment

Alternatives to Street Crime (TASC) sentencing for burglary, called court’s

attention to “ ‘track marks in his arm’ ”); People v. $1,002 United States Currency,

213 Ill. App. 3d 899, 901 (1991) (officer “observed ‘track marks,’ or collapsed

veins”; defendant admitted to officer that he was a “ ‘junky’ ”).

¶ 51 Both the trial court and the appellate court concluded that these track marks

could have been caused by regular injections of insulin for diabetes. If they were

basing their conclusions on what they believed was common knowledge, they were

incorrect. 2 Absent common knowledge, they lacked any evidentiary basis for this

conclusion. Indeed, the trial court and the appellate court demanded a level of

expertise from a police officer that they lacked, yet they opined, inaccurately, on

the technique for insulin injection. At oral argument before this court, defense

counsel acknowledged that insulin is not injected intravenously and, thus, cannot

cause the kind of track marks associated with illegal drug use.

¶ 52 Finally, the lower courts gave substantial weight to defendant’s uncorroborated

statement to the officer that he was diabetic, presumably to explain the presence of

the used syringe.

¶ 53 We begin by noting the dissent’s observation that “[i]f the trial court believed

anything, it could only believe that the officer truthfully testified,” that the

defendant said he was diabetic. 2017 IL App (3d) 160025, ¶ 25 (Schmidt, J.,

dissenting). Because defendant did not testify at the hearing, the trial court could

2

Insulin is injected subcutaneously into the fatty layer between skin and muscle, not

intravenously. If not a matter of common knowledge, this information is readily available.

See Drugs and Supplements: Insulin (Parenteral Route), Mayo Clinic, https://www.mayo

clinic.org/drugs-supplements/insulin-parenteral-route/proper-use/drg-20069501 (last

updated Jan. 1, 2016) [https://perma.cc/23TA-FE3T].

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make no assessment of the credibility of his statement to the police officer that he

was diabetic.

¶ 54 Defendant did not put on evidence that he told the paramedics at the scene that

he was diabetic or that his condition was a result of an episode of high or low blood

sugar. Had he done so, or had he been wearing a medic-alert bracelet, the

paramedics would have acted accordingly. A simple blood test would have

revealed his blood sugar level, and they would have started appropriate treatment

immediately. A reasonably cautious officer, observing such medical intervention,

would have considered whether the defendant’s condition was caused, at least in

part, by his medical condition. Instead of seeking immediate treatment, however,

the defendant waited until he spoke to the officer at the hospital at the time of his

arrest to mention his alleged medical condition.

¶ 55 Defendant’s statement to the officer that he is diabetic was not corroborated by

any physical evidence or circumstance known to the officer at the time of the arrest.

The officer found evidence of opiates in the vehicle but no insulin or blood glucose

meter. In sum, there was no evidence available to the officer at the time of the arrest

that defendant’s impairment may have been due, even in part, to diabetes.

¶ 56 The appellate court expressed concern about the officer’s inability to

distinguish between symptoms of diabetes and drug use. We do not expect police

officers in the field to make differential diagnoses—only to determine based on the

totality of the circumstances whether an impaired driver is under the influence of

alcohol or drugs, even if he or she may also have a medical condition.

¶ 57 We also reject defendant’s position that probable cause was lacking because it

was based on “mere proximity to suspicious items.” In this case, the totality of the

circumstances supports the officer’s conclusion that defendant had been driving

under the influence of drugs. The semiconscious defendant showed signs of recent

intravenous injection, he possessed a used syringe, and the only injectable

substance present was an opiate, apparently prepared for injection in the depression

on the bottom of the aluminum beverage can.

¶ 58 When the reliability of blood alcohol test results was at issue, this court stated

that a prima facie case for rescission could be made by producing evidence “of any

circumstance which tends to cast doubt on the test’s accuracy, including, but not

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limited to, credible testimony by the motorist that he was not in fact under the

influence of alcohol.” Orth, 124 Ill. 2d at 341. Thus, in the present case, where the

motorist/defendant challenged the reasonableness of the officer’s belief that he was

under the influence of drugs, sufficient evidence would consist of any circumstance

that tends to cast doubt on the reasonableness of the officer’s inference, which

could include credible testimony by the motorist that he was not, in fact, under the

influence of drugs.

¶ 59 The trial court found that the defendant met this burden based solely on the

testimony of the officer, without putting on any evidence to support his claim that

his impairment was or could have been a result of his medical condition. He based

his case entirely on the claim that the officer was not qualified to conclude that he

was under the influence of drugs. The appellate court noted that the trial court

found that the burden had shifted to the State to justify the license suspension.

Because the State rested its case without providing “any evidence to justify the

suspension,” the appellate court concluded that the State did not meet its burden of

proof. 2017 IL App (3d) 160025, ¶ 19.

¶ 60 Applying the standard we established in Orth, we find no evidence of any

circumstance that tends to cast doubt on the reasonableness of the officer’s

inference. Thus, we conclude that the trial court erred in finding that the burden

shifted to the State. The defendant failed to present a prima facie case. Thus, the

trial court erred by not granting the State’s motion for a directed finding.

¶ 61 CONCLUSION

¶ 62 Expert testimony is not required in every case for an officer to testify to his

opinion that a motorist was under the influence of drugs based on his inference

from the totality of the circumstances. When, as here, the totality of circumstances

at the time of the arrest is sufficient to lead a reasonably cautious person to believe

that an individual was driving under the influence of drugs, probable cause exists.

Thus, defendant failed to make a prima facie case that the rescission of his license

was improper and the burden did not shift to the State.

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¶ 63 For the foregoing reasons, we reverse the judgment of the appellate court,

vacate the rescission order entered by the trial court, and remand to the trial court

for further proceedings consistent with this judgment.

¶ 64 Appellate court judgment reversed.

¶ 65 Circuit court judgment reversed.

¶ 66 Cause remanded.

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