{ "id": 511378, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELDON E. SHELTON, Defendant-Appellant", "name_abbreviation": "People v. Shelton", "decision_date": "1999-03-17", "docket_number": "No. 5\u201497\u20140245", "first_page": "915", "last_page": "927", "citations": [ { "type": "official", "cite": "303 Ill. App. 3d 915" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "294 Ill. App. 3d 139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35386 ], "year": 1997, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0139-01" ] }, { "cite": "129 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490546 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "114" }, { "page": "115" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0107-01" ] }, { "cite": "287 Ill. App. 3d 836", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520987 ], "year": 1997, "pin_cites": [ { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0836-01" ] }, { "cite": "242 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5118427 ], "year": 1993, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0418-01" ] }, { "cite": "122 Ill. App. 3d 1056", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524067 ], "year": 1984, "pin_cites": [ { "parenthetical": "wherein this court held that refusal to take one test amounted to refusal to take all tests" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/1056-01" ] }, { "cite": "201 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594469 ], "year": 1990, "pin_cites": [ { "parenthetical": "wherein the defendant's insistence on right to consult attorney before testing, even after being warned of consequences of that insistence, amounted to refusal to submit to testing" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0140-01" ] }, { "cite": "262 Ill. App. 3d 509", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2848681 ], "year": 1994, "pin_cites": [ { "parenthetical": "wherein a motorist was found to have refused to take tests when he conditioned his taking of test upon identity of transporting officer and then refused to take test when condition was not met" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0509-01" ] }, { "cite": "272 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 253283 ], "year": 1995, "pin_cites": [ { "parenthetical": "wherein the court relied upon Kern to hold that where the police allowed defendant to consult with an attorney prior to testing, the defendant's insistence to continue talking to his attorney, without more, was not a refusal to submit to testing" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0498-01" ] }, { "cite": "121 Ill. App. 3d 341", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558712 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0341-01" ] }, { "cite": "182 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2619661 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "416" }, { "page": "416-17" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0414-01" ] }, { "cite": "84 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3207183 ], "year": 1980, "pin_cites": [ { "page": "1071-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/1065-01" ] }, { "cite": "151 Ill. App. 3d 475", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3539655 ], "year": 1986, "pin_cites": [ { "page": "479", "parenthetical": "and cases cited therein which hold that a defendant does not have the right to speak to an attorney before implied-consent testing occurs" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0475-01" ] }, { "cite": "430 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12124816 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "398" }, { "page": "436" }, { "page": "1239" } ], "opinion_index": 0, "case_paths": [ "/us/430/0387-01" ] }, { "cite": "199 Ill. App. 3d 79", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466868 ], "year": 1990, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0079-01" ] }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "year": 1980, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "142 Ill. App. 3d 1062", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450511 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/1062-01" ] }, { "cite": "279 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75246 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "154" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0152-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] } ], "analysis": { "cardinality": 988, "char_count": 28674, "ocr_confidence": 0.775, "pagerank": { "raw": 7.229447459608873e-08, "percentile": 0.4316730434863191 }, "sha256": "1da9c5b274303390c69411d2a687f42baa74bb759249c98ad2e29814be5cf8fb", "simhash": "1:9e2cad872b4f26c1", "word_count": 4839 }, "last_updated": "2023-07-14T16:41:17.679955+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELDON E. SHELTON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOPKINS\ndelivered the opinion of the court:\nDefendant appeals from the judgment of conviction entered upon a jury verdict of guilty for driving under the influence (DUI) of drugs (625 ILCS 5/11\u2014501(a)(3) (West 1996)). On appeal, defendant argues that the State failed to prove him guilty beyond a reasonable doubt and that numerous trial errors denied him a fair trial. We reverse and remand.\nFACTS\nAt defendant\u2019s trial, William Nelson, a police officer for six years, testified that on June 11, 1996, at approximately 7 p.m., he observed a car travelling \u201cat a high rate of speed\u201d through Taylorville, Illinois. After the car passed two vehicles in the left-turn lane, Nelson activated his overhead lights and pursued the car. Nelson observed the car come to a complete stop at a stop sign and then pull over into a parking lot. Defendant exited the car.\nAfter defendant exited his car, defendant told Nelson that his accelerator stuck, and then defendant told Nelson that he should go for a ride with defendant. Nelson did not smell any odor of alcohol on defendant but described his behavior as \u201coff balance\u201d and \u201cvery agitated.\u201d When Nelson asked defendant for his driver\u2019s license, defendant told Nelson that he did not have a license because it was revoked. Nelson testified that defendant then stated, \u201cI\u2019m getting ready to run,\u201d but immediately told Nelson that he was kidding. Defendant then gave Nelson his driver\u2019s license.\nAccording to Nelson, defendant became more agitated when another officer, Sheila Nation, arrived. When Nelson requested that defendant perform field sobriety tests, defendant initially refused, but after Nelson told defendant that he would be placed under arrest for driving under the influence, defendant agreed to take the tests.\nNation testified that she noticed that defendant talked constantly. Nation described defendant as \u201cvery high strung [and] unable to stand still.\u201d She stated, \u201c[H]e was moving around constantly, he was agitated at one time, and then he would kind of calm down and *** be cor operative.\u201d Both Nelson and Nation testified that defendant told them several times, angrily, that he was not drunk and that he had not had anything to drink for several years. Nation testified that defendant stated, both at the scene and later at the police station, that he was \u201con Tylenol 3 with codeine.\u201d\nNelson testified that defendant failed all of the field sobriety tests given. On the heel-to-toe test, defendant failed to touch his heel to his toe on several steps, and he did not pivot or count his steps correctly. Both officers testified, however, that defendant was able to walk a straight line as part of that test. Nation testified that defendant \u201ckept losing his balance\u201d as he waited for Nelson to finish the instructions for that test. Nelson next asked defendant to stand on one leg to a count of 30. According to both officers, defendant lost his balance right away the first time he tried the one-legged stand, and he started too soon. On his second attempt, defendant stood on one leg without stumbling to the count of 14. The final test given to defendant was the finger-to-nose test. According to both officers, defendant failed this test because he opened his eyes for part of the test and he touched the bridge of his nose and then slid his finger down to the tip on at least one attempt.\nAfter defendant failed the field sobriety tests, Nelson arrested him for driving under the influence of drugs. Nelson did not suspect that defendant had been drinking alcohol. Defendant was not charged with speeding or any other offense. Nelson testified that on the way to the police station, defendant asked the officer to give him a breath test, but Nelson told defendant that the officers could ask for blood or urine tests instead. According to Nelson, defendant responded by threatening Nelson and his family. Nelson testified that he did not want to give defendant the breath test, since the breath test measures only the amount of alcohol in a person\u2019s body.\nAt the police station, Nelson asked defendant to submit to blood and urine testing. According to Nelson, defendant responded that he wanted to speak to an attorney. Nelson allowed defendant to make \u201cseveral\u201d phone calls, but he did not know whether defendant spoke to an attorney. Nelson testified that he overheard defendant tell the booking officer, John Seibenthal, that \u201cDoctor Manson had pumped him full of codeine and morphine.\u201d Seibenthal verified that defendant made that statement.\nAfter defendant finished his phone calls, Nelson again asked defendant to submit to blood and urine testing. According to Nelson, defendant responded that he wanted to speak to an attorney before he made his decision. Nelson testified that he considered defendant\u2019s response a refusal to take the tests, since Nelson already gave defendant an opportunity to call an attorney. Nelson admitted that defendant never actually refused to take any tests. After defendant asked for an attorney the second time, defendant then told Nelson that he wanted to take the tests. Nelson told defendant that it was too late, because he was already done processing him and \u201ceverything was already completed.\u201d Nelson did not tell defendant that his initial request to speak to an attorney was the reason that Nelson denied defendant\u2019s request to take the blood and urine tests.\nThere is no evidence in the record concerning the amount of time that expired between Nelson\u2019s first request for defendant to take blood and urine tests and defendant\u2019s subsequent consent to take those tests. There is no evidence that Nelson informed defendant that his initial request to speak to an attorney would be considered a refusal to take the test. There is no evidence that defendant was informed that his request to speak to an attorney would be used against him in court as a refusal to submit to chemical testing. There is no evidence that Nelson informed defendant that his request to speak to an attorney could subject him to a six-month statutory summary suspension of his driver\u2019s license. See 625 ILCS 5/11\u2014501.1(c) (West 1996) (which provides that a person asked to submit to breath, blood, or urine testing \u201cshall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension\u201d of his driver\u2019s license).\nThere is no evidence in the record that defendant was informed that he could not submit to testing if he chose to speak to an attorney first. There is no evidence that Nelson or any other officer attempted to take defendant to the hospital where the testing would be done or that defendant indicated that he would not go to the hospital for testing.\nNelson testified that in his prior experience as a police officer, he observed people under the influence of drugs. Nelson testified that he had \u201climited training in the academy\u201d concerning narcotics, which consisted of a \u201csmall block\u201d of his \u201cDUI training,\u201d and that he previously arrested one other person for driving under the influence of drugs, but that charge was dismissed. According to Nelson, a person under the influence of drugs will \u201cbe a little more confused\u201d than those who are under the influence of alcohol. Nelson testified that defendant appeared to be \u201cvery off balance, very moody and agitated, and very talkative\u201d and that these characteristics are indicative of drug usage. Based upon his observation, Nelson testified that he believed that defendant was under the influence of drugs and that defendant was not capable of driving a vehicle safely.\nAt the close of the State\u2019s evidence, defendant moved for a directed-verdict, arguing that the State failed to prove that defendant was under the influence of drugs. As part of the argument on the motion for directed verdict, the trial court asked the prosecutor if the effect of the drugs that defendant ostensibly admitted to taking was a matter \u201cwithin the common knowledge of the jury.\u201d The court noted, \u201c[Tjhere\u2019s been no evidence presented to it[ \u2014 jwhat the effects would be on someone under the influence of [those drugs].\u201d The State replied and the following colloquy ensued:\n\u201cMR. MARTIN [prosecuting attorney]: Yes. And the reason I believe that, Judge, is because I asked that question and most *** of the jurors said yes, they had taken codeine, and some of the jurors had also responded yes, they had taken Darvon.\nTHE COURT: So *** the jurors have to rely upon each other\u2019s statements as to what the effects are? In the absence of any evidence presented.\nMR. MARTIN: Judge, if you get to that point then there\u2019s difficulty in the State proving any case because I can\u2019t show that a juror would have common knowledge of the fact of any effect of cocaine or whatever it is. I can\u2019t put a jury on there that would know the effects of cocaine.\nTHE COURT: And I asked about three questions trying to get the State to see if they were going to have this officer explain, based on his training and experience, what those effects would be. There\u2019s nothing in this record of any kind showing what the effects would be of someone under the influence of these particular drugsfj [o]r any drugs. No, no evidence of that at all in the record. I\u2019m going to deny the motion at this point[,] but this is really a close case. This is an extremely close case. The motion is denied at this time.\u201d (Emphasis added.)\nDefendant\u2019s mother, Glenda Shelton, testified that defendant had surgery to remove his gallbladder on May 8, 1996, just over a month before his DUI arrest, and that defendant was given morphine while he was in the hospital and was prescribed a painkiller and an antibiotic after his release from the hospital. Shelton testified that when defendant called her from the police station, he told her that he had asked the officers to give him breath, blood, and urine tests but that they refused to give him any tests. Shelton testified that when she arrived at the police station, defendant was angry because the officers would not give him any tests. According to Shelton, as she and defendant were leaving, Officer Nelson told defendant that if he wanted to be tested, he should \u201chave it done.\u201d\nLarry Cook testified that he observed defendant being arrested. He testified, \u201c[I overheard defendant say] he wasn\u2019t drinkin\u2019 and he requested any of the ones they administered, breath, blood, urine, it didn\u2019t matter to him.\u201d In rebuttal, Officer Nelson denied that defendant ever asked to take any tests before he was transported to the police station.\nIn closing argument, the State argued:\n\u201cHe failed to take the breath test. He asked for an attorney[;] they gave him an opportunity to contact an attorney. Here\u2019s the phone[;] make your phone call. Called his mother apparently ***. He didn\u2019t call an attorney. At least that isn\u2019t consistent with calling an attorney. Get done with that, come back to him again, [and he says \u2018]I want to talk to an attorney!\u2019]. The officer wrote it down as a refusal. It is a legal refusal if he keeps on asking for an attorney. What\u2019s the officer supposed to do[?] *** [I]t\u2019s not like he can talk to an attorney, come back. He was given the opportunity to call.\u201d\nThe prosecutor then argued for the jury to consider defendant\u2019s statements:\n\u201cCodeine and Darvon, codeine and morphine, are those substances that can affect the equilibrium of the defendant. Those substances can affect his ability to drive a vehicle safely. The defendant said he had taken drugs prior to the arrest. *** If any of you have taken codeine or Darvon, are his actions consistent with those drugs!?]\u201d\nThe defense counsel argued in closing that defendant not only asked for breath, blood, and urine testing before his arrest but he asked for blood or urine testing as he was leaving the police station. Defense counsel told the jury that defendant\u2019s request for an attorney prior to taking the tests amounted to a \u201clegal refusal.\u201d Defense counsel argued, however, that defendant probably did not know that he was legally refusing to take the tests. Additionally, he argued that the police should have given him the tests as soon as he agreed to take them, even if it was after he initially refused.\nThe jury returned a verdict of guilty of the offense of driving under the influence of drugs.\nDISCUSSION\nI. REASONABLE DOUBT\nDefendant first challenges the sufficiency of the evidence, claiming that the State\u2019s failure to connect defendant\u2019s drug usage to his driving ability leaves a reasonable doubt as to his guilt. The elements of the offense of driving under the influence of drugs are that (1) defendant was either driving or in actual physical control of a vehicle (2) while under the influence of any drug or combination of drugs (3) to such a degree that it rendered defendant incapable of safely driving. 625 ILCS 5/11\u2014501(a)(3) (West 1996). The evidence is clear that defendant was driving a vehicle, so the issues in this case center around the second two elements of the offense.\nThe standard for a review of a challenge to the sufficiency of the evidence is first to consider all of the evidence in the light most favorable to the prosecution and then to decide if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985); People v. Moore, 279 Ill. App. 3d 152, 154 (1996). Here, the jury could have found defendant\u2019s statements that he was \u201con Tylenol 3 with codeine\u201d to be sufficient proof that he was under the influence of drugs at the time he was pulled over by Officer Nelson. Defendant argues that his statements merely indicate that he was concerned about the lingering effect of the drugs he took while in the hospital a month before his arrest. However, if the jury believed Officer Nation\u2019s testimony, it could have believed that defendant was \u201con\u201d or under the influence of drugs at the time of his arrest. See People v. Bitterman, 142 Ill. App. 3d 1062 (1986). Even if defendant had a legal prescription for \u201cTylenol 3 with codeine,\u201d this fact would provide no defense if his use of the drug rendered him incapable of driving safely. See 625 ILCS 5/11\u2014501(b) (West 1996).\nOfficer Nelson\u2019s statements about defendant\u2019s driving prior to his stop and both officers\u2019 descriptions of defendant\u2019s lack of balance and his inability to pass the field sobriety tests provide sufficient evidence of his inability to drive safely. Thus, when all of the evidence is viewed in the light most favorable to the prosecution, a rational jury could have found defendant guilty of the essential elements of the crime beyond a reasonable doubt.\nII. WHETHER TRIAL ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL\nDefendant contends that three trial errors combined to deprive him of a fair trial: (1) improper comments about defendant\u2019s request to speak to an attorney, (2) the lack of foundation for Nelson\u2019s opinion testimony, and (3) the State\u2019s improper closing argument.\nDefendant argues that the prosecuting attorney commented three times in his opening statement that defendant asked to speak with an attorney and stated that such a request amounted to \u201ca legal refusal factually.\u201d The State also elicited testimony from Officer Nelson about defendant\u2019s request to speak to an attorney and then derisively commented about it again during his closing argument. During closing arguments, both the prosecutor and the defense attorney told the jury that defendant\u2019s request for an attorney amounted to a legal refusal to submit to chemical testing.\nThe State responds that defendant waived this argument for appeal, since defendant\u2019s attorney failed to object to the statements during trial and failed to raise the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176 (1988). Defendant urges us to consider the issue under the doctrine of plain error:\n\u201c \u2018A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record [ ] but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review.\u2019 \u201d Enoch, 122 Ill. 2d at 199, quoting People v. Carlson, 79 Ill. 2d 564, 576 (1980).\nUnder the above standard, we are compelled to review this issue, since the evidence against defendant on the second two elements of the offense was not overwhelming but, on the contrary, was described by the trial court as \u201cextremely\u201d closely balanced.\nA defendant charged with DUI has a right to an attorney during the \u201c \u2018critical stages\u2019 of the criminal process,\u201d just as any defendant charged with any crime has the right to speak to an attorney. People v. Thomas, 199 Ill. App. 3d 79, 94 (1990), quoting Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 436, 97 S. Ct. 1232, 1239 (1977). The rules regarding speaking to an attorney are slightly different in this area of the law, however. Although a DUI defendant retains the right to speak to an attorney, that right may not unduly delay the law enforcement official\u2019s right to subject him to chemical testing to determine whether he has alcohol or drugs in his system. See People v. Graziano, 151 Ill. App. 3d 475, 479 (1986) (and cases cited therein which hold that a defendant does not have the right to speak to an attorney before implied-consent testing occurs).\nNevertheless, defendant is correct that the State should not have emphasized his request for an attorney, since this evidence may lead the jury to assume that defendant would not have asked for an attorney unless he were guilty. Such a negative inference upon a person\u2019s constitutional right to an attorney is unacceptable. People v. Meredith, 84 Ill. App. 3d 1065, 1071-72 (1980).\nIn the case at bar, the error of undue emphasis upon defendant\u2019s constitutional request for an attorney was combined with the error of both the State and the defense casting the request in terms of a \u201clegal refusal\u201d to submit to chemical testing, even though defendant never actually refused to submit to chemical testing. In the case of People v. Kern, 182 Ill. App. 3d 414 (1989), the court considered a factual situation very similar to that presented herein. In Kern, the court held that where the arresting officers allowed a defendant charged with DUI to consult with an attorney prior to submitting to chemical testing, the request to speak to an attorney could not be held to be a refusal without some additional evidence that the defendant said or did something, beyond merely asking to speak to an attorney, to indicate his refusal to submit to the testing. Kern, 182 Ill. App. 3d at 416.\nThe court in Kern found as follows:\n\u201c[W]hile a defendant\u2019s conditioning his taking of a blood-alcohol test on his ability to consult legal counsel may constitute a refusal (Village of Cary v. Jakubek (1984) 121 Ill. App. 3d 341, 344 ***), there is nothing in the record to indicate that Kern stated any condition to his taking the test. In fact, the record indicates that after Kern spoke with an Illinois attorney, he agreed to take the test.\nThus, it is evident from the record that Kern did not refuse to submit to or complete the requested blood-alcohol test.\u201d Kern, 182 Ill. App. 3d at 416-17.\nWe find Kern dispositive of the issue before this court. In the case at bar, defendant did nothing to indicate that he would not take the tests. He merely asked to telephone an attorney, and Officer Nelson allowed him to do so. Defendant then agreed to take the tests and asked that they be administered. Just as in Kern, there can be no refusal merely on the basis of a request to speak to an attorney without some behavioral or verbal indication that the defendant actually refuses to take the test. See also Goss v. People, 272 Ill. App. 3d 498 (1995) (wherein the court relied upon Kern to hold that where the police allowed defendant to consult with an attorney prior to testing, the defendant\u2019s insistence to continue talking to his attorney, without more, was not a refusal to submit to testing).\nIf Officer Nelson had informed defendant that he had no right to speak to an attorney before taking the test, and if defendant had then done anything to indicate his refusal, then Officer Nelson could have properly considered defendant to have refused to submit to testing. See People v. Krosse, 262 Ill. App. 3d 509 (1994) (wherein a motorist was found to have refused to take tests when he conditioned his taking of test upon identity of transporting officer and then refused to take test when condition was not met); People v. Buerkett, 201 Ill. App. 3d 140 (1990) (wherein the defendant\u2019s insistence on right to consult attorney before testing, even after being warned of consequences of that insistence, amounted to refusal to submit to testing); People v. Kiss, 122 Ill. App. 3d 1056 (1984) (wherein this court held that refusal to take one test amounted to refusal to take all tests). However, the record in this case is clear. Other than asking to call an attorney, defendant did nothing to indicate refusal.\nAdditionally, we find that the facts in this case weigh more strongly against a finding of refusal than in Kern, because Kern involved a review of a statutory summary suspension of the defendant\u2019s driver\u2019s license, wherein it is the defendant\u2019s burden to prove, by a preponderance of the evidence, that the State has failed to present a prima facie case for rescission. People v. Huisinga, 242 Ill. App. 3d 418, 421 (1993). In the case at bar, defendant was charged with a Class A misdemeanor for which the State, not the defendant, was required to prove all of the essential elements of the offense beyond a reasonable doubt, and the purported evidence of defendant\u2019s refusal was used in his jury trial on the issue of guilt. 625 ILCS 5/11\u2014 501(c) (West 1996); Moore, 279 Ill. App. 3d at 154. Here, the improper references to defendant\u2019s request to speak to an attorney were compounded by the State\u2019s and the defense counsel\u2019s inaccurate characterizations of defendant\u2019s requests for an attorney as a \u201clegal refusal,\u201d as if it carried some legal presumption of guilt, when the law does not provide any such rule. To be fair to defendant\u2019s attorney, he argued that the jury should consider defendant\u2019s later request to be tested as evidence of his innocence. Nevertheless, we feel that the use of the term \u201clegal refusal\u201d by the State at the outset of the trial, the use of that term by both the State and the defense during their closing arguments, and the State\u2019s denigration during closing argument of defendant\u2019s request for an attorney were serious enough errors to tip the balance of this \u201cvery close\u201d trial unfairly against defendant.\nDefendant next argues that the State did not lay a proper foundation for Officer Nelson\u2019s opinion testimony that defendant was under the influence of drugs and that the drug usage rendered him incapable of driving safely. Laypersons may testify about the effects of alcohol, because such observations are familiar to most adults of normal experience. People v. Vanzandt, 287 Ill. App. 3d 836, 845 (1997). However, the effects of drugs are not commonly known, and training and experience are necessary to understand their effects on people. People v. Jacquith, 129 Ill. App. 3d 107 (1984).\nIn Jacquith, the court considered cases from outside Illinois, since there was a shortage of Illinois law on this issue. Jacquith, 129 Ill. App. 3d at 114. According to the court in Jacquith, if a law enforcement officer has some training in how to detect drug users and, more importantly, experience in dealing with drug users, then the officer may be qualified to testify about his or her belief that the defendant was under the influence of drugs. Jacquith, 129 Ill. App. 3d at 115. The Jacquith court did not draw a bright-line test but left the issue to depend upon the facts of each particular case. The court in Jacquith found that several years of experience in dealing with drug users might provide the necessary foundation for an officer\u2019s opinion that the defendant was under the influence of drugs, but the court held that a lack of previous experience in dealing with narcotics users and only limited training in \u201cthe areas of alcohol and drugs\u201d while at the police academy was \u201cinsufficient to support a finding that the defendant operated a motor vehicle while under the influence of drugs.\u201d Jacquith, 129 Ill. App. 3d at 115.\nIn the case at bar, Officer Nelson testified that he had \u201climited training\u201d in how to detect drug users, which consisted of a \u201csmall block\u201d of his DUI training at the police academy. He described his experience with drug users during his six years as a police officer: \u201cWe [had prior dealings with people on drugs].\u201d He testified, \u201cWe [took] those people [evidently those who had overdosed on drugs,] to emergency rooms.\u201d Nelson testified that a person who is under the influence of drugs will be \u201ca little more confused\u201d than someone under the influence of alcohol. Nelson observed defendant to be \u201cvery off balance, very moody and agitated, and very talkative,\u201d and Nelson testified that he considered such behavior to be \u201cconsistent with\u201d what he observed in other narcotics users.\nNelson\u2019s testimony does not indicate extensive personal experience with drug users. Instead, Nelson used the word \u201cwe,\u201d which could mean others in his department, when he described the prior, frequent dealings with drug users. Experience in transporting people who have overdosed on drugs and \u201climited training\u201d that narcotics users are a \u201clittle more confused\u201d than those under the influence of alcohol do not provide a sufficient foundation to qualify Nelson to render an opinion that defendant\u2019s off-balance, moody, agitated, and talkative behavior indicated that he was under the influence of drugs.\nOur finding on this issue is consistent with the trial court\u2019s finding that there was \u201cno evidence *** in the record\u201d of the effects of any drugs. The trial court erred in allowing Nelson to state his opinion concerning whether defendant was under the influence of drugs. This error, when combined with the other errors, deprived defendant of a fair trial, for the jury was not informed that Nelson had no basis for his opinion, and since he was in a position of authority, the jury could reasonably be expected to give Nelson\u2019s opinion undue weight. \u201cA trial error is of such magnitude as to require the reversal of a defendant\u2019s conviction if there is a reasonable probability the error may have contributed to that conviction.\u201d People v. Green, 294 Ill. App. 3d 139, 144 (1997). When the error of allowing Nelson to improperly state Ms opimon is considered in light of the paucity of other evidence against defendant, it is clear that it contributed to his conviction and is a proper basis for reversal.\nDefendant next contends that the State made improper and prejudicial statements in its closing argument. Specifically, defendant cites the prosecutor\u2019s statements that codeine and Darvon, or codeine and morphine, \u201ccan affect [one\u2019s] ability to drive a vehicle safely.\u201d Clearly, no evidence as to the effect of any drug was presented at this trial. Defendant also argues that the State unfairly asked the jurors whether any of them had taken codeine or Darvon and, if they had, asked them to consider whether defendant\u2019s actions were consistent with being under the influence of those drugs. This request for the jurors to use their own, everyday experience to determine an issue that is clearly the province of expert testimony is reversible error, especially where the competent evidence of defendant\u2019s guilt is absent from the record.\nCONCLUSION\nFor all of the reasons stated, defendant\u2019s conviction is reversed, and this case is remanded to the circuit court of Christian County for a new trial.\nReversed and remanded.\nGOLDENHERSH and MAAG, JJ., concur.", "type": "majority", "author": "JUSTICE HOPKINS" } ], "attorneys": [ "Daniel M. Kirwan and Robert S. Burke, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Teresa Brown, State\u2019s Attorney, of Taylorville (Norbert J. Goetten, Stephen E. Norris, and Philip B. Alfeld, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELDON E. SHELTON, Defendant-Appellant.\nFifth District\nNo. 5\u201497\u20140245\nOpinion filed March 17, 1999.\nDaniel M. Kirwan and Robert S. Burke, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nTeresa Brown, State\u2019s Attorney, of Taylorville (Norbert J. Goetten, Stephen E. Norris, and Philip B. Alfeld, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0915-01", "first_page_order": 933, "last_page_order": 945 }