{ "id": 4271952, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID M. ALLEN, Defendant-Appellant", "name_abbreviation": "People v. Allen", "decision_date": "2007-08-07", "docket_number": "No. 3-06-0783", "first_page": "810", "last_page": "816", "citations": [ { "type": "official", "cite": "375 Ill. App. 3d 810" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "569 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "126-27", "parenthetical": "testing one of three samples of a substance for the presence of PCP was insufficient where it would be easy for the State to test the remaining samples" } ], "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 390", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2533683 ], "year": 1991, "pin_cites": [ { "page": "400", "parenthetical": "testing one of three samples of a substance for the presence of PCP was insufficient where it would be easy for the State to test the remaining samples" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0390-01" ] }, { "cite": "835 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5594271 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "965" }, { "page": "966" }, { "page": "969" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0962-01" ] }, { "cite": "363 N.E.2d 884", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5635217 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0040-01" ] }, { "cite": "380 N.E.2d 795", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "800-01", "parenthetical": "finding testimony that a substance was marijuana insufficient to prove that it was in fact marijuana due, in part, to the availability of a simple test" } ], "opinion_index": 0 }, { "cite": "72 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443749 ], "weight": 6, "year": 1978, "pin_cites": [ { "page": "207" }, { "page": "207" }, { "page": "214" }, { "page": "211" }, { "page": "213-14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0203-01" ] }, { "cite": "815 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "351 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083941 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/1023-01" ] } ], "analysis": { "cardinality": 684, "char_count": 14374, "ocr_confidence": 0.761, "pagerank": { "raw": 1.4064277772564742e-07, "percentile": 0.6457528991072452 }, "sha256": "ea09506424f69c875729f2717178f40d781333cf9f26d4bca1fb3e8f8b77c5ed", "simhash": "1:ae1a3800b20fa79e", "word_count": 2345 }, "last_updated": "2023-07-14T20:53:12.225665+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. DAVID M. ALLEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCHMIDT\ndelivered the opinion of the court:\nDefendant, David Allen, was convicted in the circuit court of Will County of driving under the influence (DUI) in violation of section 11 \u2014 501(a)(6) of the Illinois Vehicle Code (the Code) (625 ILCS 5/11\u2014 501(a)(6) (West 2006)). This section of the Code makes it illegal to drive with \u201cany amount\u201d of cannabis in a \u201cperson\u2019s breath, blood, or urine\u201d regardless of whether there is any visible impairment. 625 ILCS 5/11 \u2014 501(a)(6) (West 2006).\nDefendant was sentenced to 12 months\u2019 court supervision, fined $750, and ordered to complete Level II moderate counseling. Defendant appeals his conviction, claiming that the trial court erred by allowing a police officer to testify that he smelled cannabis on defendant\u2019s breath and further claiming that the evidence admitted at trial was insufficient to prove defendant guilty beyond a reasonable doubt of the offense charged.\nFACTS\nOfficer Brian Wojowski testified at defendant\u2019s trial and during a hearing on defendant\u2019s motion in limine and motion to suppress evidence. The officer\u2019s testimony during the hearing on defendant\u2019s motions was incorporated into the evidence adduced at trial by stipulation of the parties. Wojowski stated he was a member of the New Lenox police department and that on June 29, 2006, at approximately 3:05 p.m., he was assigned to assist the Illinois State Police with a roadside safety check in New Lenox. During the safety check, Wojowski came into contact with the defendant. Office Wojowski was called to the defendant\u2019s vehicle by Officer Furlong, who \u201cexplained\u201d to Wojowski that he smelled burnt cannabis emitting from the car. When the officer first saw the defendant, defendant was standing behind his vehicle. Wojowski approached the defendant\u2019s vehicle and also noticed a smell of burnt cannabis coming from the vehicle. Wojowski noticed a smell and odor of burnt cannabis on defendant\u2019s breath and noticed that defendant\u2019s pupils seemed dilated. Pursuant to the trial court\u2019s ruling on defendant\u2019s motion in limine, Wojowski was allowed to testify to his observations and the \u201cphysical state\u201d of the defendant, but he was precluded from testifying \u201cthat dilated pupils meant to him that defendant had consumed marijuana.\u201d After making observations concerning defendant\u2019s physical condition, Wojowski then asked defendant if he had recently smoked cannabis and defendant stated, pursuant to Wojowski\u2019s testimony at trial, that he had smoked cannabis the night before.\nWojowksi stated that he worked for four years in the Chicago Housing Authority as an officer and would \u201cfrequently\u201d arrest people in the act of smoking marijuana. He stated that \u201ctime after time after time,\u201d he had correlated \u201cthe smell of burnt cannabis to the actual lab result.\u201d Throughout his tenure in law enforcement and \u201chundreds\u201d of marijuana arrests, he developed the skill to \u201crecognize easily\u201d the \u201cdistinctive smell\u201d of burnt cannabis.\nThe officer testified that based upon defendant\u2019s admission that he had smoked cannabis within the past 24 hours, he placed defendant under arrest for DUI \u2014 drugs. Wojowski did not ask the defendant to perform any type of field sobriety tests as those tests, in the officer\u2019s opinion, are not valid to determine marijuana impairment. Wojowski admitted that there was nothing unusual about the way defendant walked, defendant\u2019s speech was clear and fine, and no illegal drug paraphernalia or drug residue was located inside defendant\u2019s vehicle. Officer Wojowski noted that he could not tell from the smell of defendant\u2019s breath whether defendant had any cannabis in his blood at the time of arrest.\nSpecifically, the following testimony was offered at trial:\n\u201cQ. [Defense Counsel:] And on the night in question, you did, in fact, physically test my client\u2019s breath for elements of cannabis?\nA. [Wojowski:] I don\u2019t believe you can.\nQ. Okay. And you didn\u2019t pierce his blood to determine whether or not there was cannabis, in fact, in his system?\nA. No, he refused the test.\nQ. Okay. And from a person\u2019s breath, there\u2019s no way of indicating what amount of cannabis is in a person\u2019s blood?\nA. Correct.\nQ. Okay. So you can\u2019t tell me if it\u2019s zero or if it\u2019s 100 milligrams?\nA. No.\nQ. Okay. And you can\u2019t tell with any scientific certainty if there\u2019s any cannabis in his breath outside of smell?\nA. You can tell if there\u2019s cannabis on a person\u2019s breath. In a person\u2019s breath\u2014\nQ. In a person\u2019s breath?\nA. \u2014I don\u2019t know if you can tell if there is anything in anybody\u2019s breath.\u201d\nDefendant testified on his own behalf. He stated that he is a maintenance supervisor at Bally Total Fitness in New Lenox. On the day of his arrest, he worked from 6 a.m. to approximately 2:15 p.m. The defendant noted that the night before his arrest, he lent his car to his girlfriend\u2019s 16-year-old daughter and when he got into it on the morning of his arrest, it smelled \u201cfunky.\u201d Defendant stated that he did not recognize the smell emanating from the car when he entered it that morning. To him, it smelled like a \u201ccross between cigarette and burnt paper.\u201d The defendant denied smoking cannabis and denied telling the officer that he smoked cannabis the prior evening. Defendant explained that he works with pool chemicals at the health club which can be irritating to the eyes, and he is not allowed to smoke at the health club. Defendant concluded by noting that when he got into his car to drive home, he smoked several cigarettes.\nAfter closing arguments, the trial court made \u201ca few preliminary observations.\u201d The court noted that it believed the defendant\u2019s statement to Officer Wojowski regarding using cannabis the night before the stop was \u201ccorroborated in advance by the officer\u2019s detection of what he believed to be marijuana in both the car and on the defendant\u2019s breath.\u201d The trial court noted that the defendant chose to testify in the trial and put his credibility at issue. The court specifically noted that the defendant\u2019s credibility gave the court \u201csome pause.\u201d The court then noted a few instances in defendant\u2019s testimony that it believed to be less than genuine. The court then took the matter under advisement and later found defendant guilty of the offense charged. This appeal followed.\nANALYSIS\nDefendant\u2019s initial argument centers around the admission of Officer Wojowski\u2019s testimony. Defendant argues that the trial court improperly denied his motion in limine that sought to bar Wojowski\u2019s testimony concerning some of Wojowski\u2019s observations and conclusions. Defendant\u2019s motion was based on the argument that no proper scientific foundation existed that would allow Wojowski to conclude what he smelled on defendant\u2019s breath was, in fact, cannabis. A reviewing court will not reverse the trial court\u2019s ruling on a motion in limine absent an abuse of discretion. People v. Kratovil, 351 Ill. App. 3d 1023, 815 N.E.2d 78 (2004).\nDefendant claims that People v. Park supports his argument that additional scientific testing was necessary before the officer should have been allowed to testify that defendant\u2019s breath contained cannabis. In Park, the defendant was convicted of possession of cannabis. People v. Park, 72 Ill. 2d 203, 380 N.E.2d 795 (1978). A police officer testified that given his training, he could identify marijuana by \u201c \u2018feel, smell, texture and looks.\u2019 \u201d Park, 72 Ill. 2d at 207. No testimony regarding chemical testing was allowed into evidence, but the officer was allowed to testify that he believed the substance possessed by defendant to be marijuana. Park, 72 Ill. 2d at 207. Defendant\u2019s conviction for cannabis possession was reversed by the appellate court (People v. Park, 49 Ill. App. 3d 40, 363 N.E.2d 884 (1977)) and the reversal affirmed by our supreme court. Park, 72 Ill. 2d at 214.\nAfter examining the propriety of expert testimony in numerous areas, the Park court stated:\n\u201cThus, while the value of pregnant sows and stolen auto parts might be readily assimilated with only limited experience, the ability to draw fine distinctions between fingerprints and ballistic markings requires more thorough and systematic study. The positive identification of cannabis without the aid of chemical and microscopic analysis falls into the latter category, because it simply is far too likely that a nonexpert would err in his conclusions on this matter, and taint the entire fact-finding process. Cross-examination often is a clumsy, counterproductive and therefore ineffective means of purging that taint. Accordingly, we hold that Carrico\u2019s statement that the substance was in fact marijuana should not have been admitted and did not help to establish this element of the State\u2019s burden.\u201d Park, 72 Ill. 2d at 211.\nThe State does not attempt to differentiate Park, but instead argues that People v. Glisson should guide our decision. In Glisson, a traffic stop led to officers discovering anhydrous ammonia in the defendant\u2019s vehicle. People v. Glisson, 359 Ill. App. 3d 962, 835 N.E.2d 162 (2005). A police officer testified that upon approaching the car, he could detect the faint odor of anhydrous ammonia. Glisson, 359 Ill. App. 3d at 965. After the trunk to the vehicle was opened, the smell of anhydrous ammonia became much stronger. In Glisson, the only evidence that the substance found in the trunk was anhydrous ammonia was the testimony of three officers regarding the odor that they smelled. Glisson, 359 Ill. App. 3d at 966.\nAfter discussing a great number of cases, the Glisson court stated:\n\u201cAlthough we have found no case precisely on point, we think the officers\u2019 testimony regarding the smell of the anhydrous ammonia was sufficient due to its distinctive odor. Our conclusion is bolstered by the impossibility of performing forensic testing on anhydrous ammonia. See Park, 72 Ill. 2d at 213-14, 380 N.E.2d at 800-01 (finding testimony that a substance was marijuana insufficient to prove that it was in fact marijuana due, in part, to the availability of a simple test); People v. Maiden, 210 Ill. App. 3d 390, 400, 569 N.E.2d 120, 126-27 (1991) (testing one of three samples of a substance for the presence of PCP was insufficient where it would be easy for the State to test the remaining samples).\u201d Glisson, 359 Ill. App. 3d at 969.\nIn the case at bar, just as in Glisson, no forensic test was available to Officer Wojowski to determine the chemical composition of what he smelled on defendant\u2019s breath. Wojowski testified that, to his knowledge, no test existed to \u201cphysically test *** breath for elements of cannabis.\u201d Defendant assured no test was available to determine if cannabis was in his system by refusing a blood and urine test. Moreover, given the officer\u2019s testimony and general common knowledge, burnt cannabis, just like anhydrous ammonia, has a distinctive smell. These factors convince us that this case is more analogous to Glisson than Park. Park did not involve burnt cannabis and the officers in Park had ample time to chemically test the substance they believed to be cannabis prior to defendant\u2019s trial for illegal possession of cannabis. Given the holding and reasoning of Glisson, we cannot say it was an abuse of discretion for the trial court to allow Officer Wojowski to testify that he smelled cannabis on defendant\u2019s breath.\nDefendant\u2019s final contention on appeal is that the State failed to introduce sufficient evidence to prove him guilty beyond a reasonable doubt of the offense charged. The standard of review in an appeal challenging a criminal conviction based on the sufficiency of the evidence is whether, after the viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985).\nThe trial court specifically found that defendant\u2019s testimony was not credible and that the testimony of Wojowski concerning defendant\u2019s admission that he smoked marijuana the night before his arrest was corroborated by the officer\u2019s detection of the smell of burnt cannabis both in the car and on defendant\u2019s breath. Section 11 \u2014 501(a)(6) of the Illinois Vehicle Code (625 ILCS 5/11 \u2014 501(a)(6) (West 2006)) states that a person shall not drive or be in actual physical control of any vehicle within the State while there is any amount of drug, substance, or compound in the person\u2019s breath, blood, or urine resulting from the unlawful use or consumption of cannabis.\nWe agree with defendant that the evidence adduced at trial was insufficient to prove him guilty beyond a reasonable doubt. To prove all of the elements of the offense charged, the State needed to prove beyond a reasonable doubt that defendant had cannabis \u201cin\u201d his breath, urine, or blood. 625 ILCS 5/11 \u2014 501(a)(6) (West 2006). The only witness called by the State was Officer Wojowski, who clearly stated that it was \u201cimpossible\u201d to tell whether defendant had zero milligrams or 100 milligrams of cannabis in his breath or blood. This testimony by Officer Wojowski is fatal to the State\u2019s case. The statute does not criminalize having breath that smells like burnt cannabis. Furthermore, even though the trial court found the officer\u2019s testimony credible regarding defendant\u2019s admission of smoking cannabis the night before his arrest, the State put on no evidence that there would have been \u201cany amount\u201d of the illegal drug in defendant\u2019s breath, urine, or blood at the time of defendant\u2019s arrest as a result of smoking cannabis the night before. The State needed some testimony that, based on the evidence, defendant had at least some cannabis or THC \u201cin his breath, urine, or blood.\u201d Therefore, we find that the State failed to prove defendant guilty of the offense charged beyond a reasonable doubt.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Will County is reversed.\nReversed.\nMcDADE and O\u2019BRIEN, JJ., concur.", "type": "majority", "author": "JUSTICE SCHMIDT" } ], "attorneys": [ "Frank E Andreano and Ted E Hammel (argued), both of Brumund, Jacobs, Hammel & Davidson, LLC, of Joliet, for appellant.", "James Glasgow, State\u2019s Attorney, of Joliet (Lawrence M. Bauer and Judith Z. Kelly (argued), both 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. DAVID M. ALLEN, Defendant-Appellant.\nThird District\nNo. 3-06-0783\nOpinion filed August 7, 2007.\nFrank E Andreano and Ted E Hammel (argued), both of Brumund, Jacobs, Hammel & Davidson, LLC, of Joliet, for appellant.\nJames Glasgow, State\u2019s Attorney, of Joliet (Lawrence M. Bauer and Judith Z. Kelly (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0810-01", "first_page_order": 826, "last_page_order": 832 }