Expert Testimony On Drug Use Is Not Always Required Sometimes Any Joe Shmoe Can Identify Impairment From Drug Use

People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15)

In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.

Lower Case Opinion

People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)

Officer untrained in the use of narcotics doesn't know enough to make this DUI drug arrest.

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."  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). 

Facts

The officer had no specific DUI/drug detection training.

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.

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.

Officer's Observations

The officer 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, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” 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.

He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”

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

Fresh Track Marks

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.

Suspension Recession Hearing

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).

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).

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).

Probable Cause Standard

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.

Issue In This Case

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?

Opinion Testimony

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

People v. Shelton Overruled

We have reservations about the court’s analysis in Shelton.

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.

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.

Defendant Was Acting Wacky In This Case

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, ­ 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.

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.

Sometimes You Do Need An Expert

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.

Defendant Was Obviously Impaired

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. 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 supported by our precedent.

Totality of the Circumstances

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.

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).

He Was Driving

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.

But Why Was He Impaired?

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. First, defendant’s physical condition was consistent with drug use.

Trial Court Ignored The Obvious

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.

Hearsay Is Permissible

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 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.”).

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.

Valid Evidence Of Drug Use

Second, the officer performed a swipe test on the burned Red Bull can and detected the presence of opiates.

The officer performed a swipe test for opiates, which revealed the presence of opiates. 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 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.

And He Had Drugs On Him

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

He Had Track Marks

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 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. 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); People v. $1,002 United States Currency, 213 Ill. App. 3d 899, 901 (1991).

Lower Court Off Base With This (Track Marks)

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. 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.

Insulin is not injected intravenously and, thus, cannot cause the kind of track marks associated with illegal drug use.

Lower Court Messed This Up As Well (Believed Wacked Out Driver)

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.

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. 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.

While We Are At It Lower Court Messed This Up Too (Test For Opiates)

The lower court inferred the officer did not even know what kind of test he was performing. Was it a test for opiates or cocaine?

But the officer was quite clear in his testimony that he performed a test for opiates. That's what he trained on, and he said "opiates" more than once. 

The only person to refer to a test for "cocaine" was the prosecutor on cross examination of the officer. Yet, the officer always answered with the word "opiates."

Holding

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.

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.

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. 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.