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    The PEOPLE of the State of Illinois, Appellant, v. Ahmet GOCMEN, Appellee.
    Docket No. 122388
    Supreme Court of Illinois.
    Opinion filed September 20, 2018.
    Lisa Madigan, Attorney General, of Springfield, and James W. Glasgow, State's Attorney, of Joliet (David L. Franklin, Solicitor General, Michael M. Glick and Leah M. Bendik, Assistant Attorneys General, of Chicago, and Patrick Delfino, Lawrence M. Bauer, and Mark A. Austill, of the Office of the State's Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.
    Elizabeth Butler, of Northbrook, for appellee.
   JUSTICE GARMAN delivered the judgment of the court, with 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, 414 Ill.Dec. 424, 80 N.E.3d 567 ). 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, he saw a brown residue. He performed a "NARK swipe" test of the residue, which, 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.

¶ 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, 414 Ill.Dec. 424, 80 N.E.3d 567. 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 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.

¶ 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, 323 Ill.Dec. 359, 893 N.E.2d 631 (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, 323 Ill.Dec. 359, 893 N.E.2d 631.

¶ 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, 323 Ill.Dec. 359, 893 N.E.2d 631 ; see also People v. Orth , 124 Ill.2d 326, 338, 340, 125 Ill.Dec. 182, 530 N.E.2d 210 (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, 323 Ill.Dec. 359, 893 N.E.2d 631. 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, 323 Ill.Dec. 359, 893 N.E.2d 631.

¶ 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.

¶ 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, 414 Ill.Dec. 424, 80 N.E.3d 567. In reaching this conclusion, the appellate court relied, in part, on People v. Shelton , 303 Ill.App.3d 915, 237 Ill.Dec. 12, 708 N.E.2d 815 (1999), and People v. Stout , 106 Ill.2d 77, 87 Ill.Dec. 521, 477 N.E.2d 498 (1985). 2017 IL App (3d) 160025, ¶ 16, 414 Ill.Dec. 424, 80 N.E.3d 567.

¶ 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, 237 Ill.Dec. 12, 708 N.E.2d 815. 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. Id.

¶ 28 After finding that the evidence was sufficient to prove the defendant guilty of DUI/drugs beyond a reasonable doubt ( id. at 922, 237 Ill.Dec. 12, 708 N.E.2d 815 ), 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, 237 Ill.Dec. 12, 708 N.E.2d 815 ). 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, 237 Ill.Dec. 12, 708 N.E.2d 815. 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, 237 Ill.Dec. 12, 708 N.E.2d 815.

¶ 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, 237 Ill.Dec. 12, 708 N.E.2d 815 ). 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.

¶ 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, 87 Ill.Dec. 521, 477 N.E.2d 498. 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, 87 Ill.Dec. 521, 477 N.E.2d 498. 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, 87 Ill.Dec. 521, 477 N.E.2d 498.

¶ 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, 87 Ill.Dec. 521, 477 N.E.2d 498. 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, 87 Ill.Dec. 521, 477 N.E.2d 498. 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, 87 Ill.Dec. 521, 477 N.E.2d 498. 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, 323 Ill.Dec. 359, 893 N.E.2d 631. 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 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, 338 Ill.Dec. 415, 924 N.E.2d 941 (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, 338 Ill.Dec. 415, 924 N.E.2d 941. "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, 338 Ill.Dec. 415, 924 N.E.2d 941.

¶ 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 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, 323 Ill.Dec. 359, 893 N.E.2d 631.

¶ 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, 323 Ill.Dec. 359, 893 N.E.2d 631.

¶ 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, 414 Ill.Dec. 424, 80 N.E.3d 567. 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, 234 N.E.2d 783 (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, 419 Ill.Dec. 112, 92 N.E.3d 523 (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."). 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, 22 Ill.Dec. 891, 383 N.E.2d 699 (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, 414 Ill.Dec. 424, 80 N.E.3d 567.

¶ 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.shopevident.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 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, 210 N.E.2d 530 (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 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, 174 Ill.Dec. 4, 597 N.E.2d 1216 (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, 157 Ill.Dec. 316, 572 N.E.2d 385 (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. 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, 414 Ill.Dec. 424, 80 N.E.3d 567 (Schmidt, J., dissenting). Because defendant did not testify at the hearing, the trial court could 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 limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol." Orth , 124 Ill.2d at 341, 125 Ill.Dec. 182, 530 N.E.2d 210. 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, 414 Ill.Dec. 424, 80 N.E.3d 567.

¶ 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.

¶ 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.

Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, Theis, and Neville concurred in the judgment and opinion.

      The appellate court opinion incorrectly states that the residue was on the inside of the can. 2017 IL App (3d) 160025, ¶ 5, 414 Ill.Dec. 424, 80 N.E.3d 567.

      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.mayoclinic.org/drugs-supplements/insulin-parenteral-route/proper-use/drg-20069501 (last updated Jan. 1, 2016) [https://perma.cc/23TA-FE3T].


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Appellee, v. Jerome BINGHAM, Appellant.
    Docket No. 122008
    Supreme Court of Illinois.
    Opinion filed September 20, 2018. Rehearing denied November 26, 2018
    James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy Defender, and Deborah Nall, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Eric M. Levin, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Mayer Brown LLP (Michael A. Scodro, of Chicago, Andrew L. Frey, of New York, New York, and Craig W. Canetti, of Washington, D.C., of counsel), for amicus curiae Collateral Consequences Resource Center.
    Adele D. Nicholas and Mark G. Weinberg, both of Chicago, for amicus curiae Illinois Voices for Reform.
   JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 Following a September 2014 bench trial in the circuit court of Cook County, defendant Jerome Bingham was convicted of felony theft ( 720 ILCS 5/16-1(a)(2)(A), (b)(2) (West 2012) ) and sentenced to three years in prison. Defendant had a prior conviction for attempted criminal sexual assault that occurred in 1983, but he was not required to register as a sex offender at that time because the conviction occurred prior to the 1986 enactment of the Sex Offender Registration Act (Act) ( 730 ILCS 150/1 et seq. (West 2012) ). Under section 3(c)(2.1) of the Act as amended in 2011 (id. § 3(c)(2.1) ), however, defendant's 2014 felony theft conviction triggered a requirement that he register as a sex offender on account of his 1983 conviction for attempted criminal sexual assault. Sex offender registration is a matter controlled by statute and was not a requirement imposed by the trial court in this case, and it is thus not reflected in the trial court's judgment.

¶ 2 On appeal to the appellate court, defendant argued that the Act's registration requirement was unconstitutional as applied to him on due process grounds and that it violated the ex post facto clauses of the United States and Illinois Constitutions. The appellate court addressed the merits of defendant's claims and rejected them, thereby upholding the constitutionality of the Act. The appellate court also modified or vacated various fines and fees imposed by the trial court.

¶ 3 Defendant petitioned for leave to appeal to this court, which we allowed. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). For the reasons that follow, we vacate the portion of the appellate court's judgment that addressed, on the merits, the constitutionality of the Act's registration requirement, and we dismiss defendant's appeal before this court.

¶ 4 BACKGROUND

¶ 5 Defendant was charged with felony theft after a surveillance camera recorded him taking several pallets from the unfenced yard of a Kmart at 4201 Harlem Avenue in Norridge, Illinois, at approximately 6:30 p.m. on May 3, 2014. The indictment alleged that defendant committed theft

"in that he knowingly obtained or exerted unauthorized control over property, to wit: pallets, of a value less than five hundred dollars, the property of Kmart, intending to deprive Kmart, permanently of the use or benefit of said property, and the defendant has been previously convicted of the offense [of] retail theft [ ( 720 ILCS 5/16-1(a)(1) (West 1992) ) ]."

Although theft is generally a Class A misdemeanor, the offense in this case was elevated to a Class 4 felony because defendant had previously been convicted of another theft offense. See 720 ILCS 5/16-1(b)(2) (West 2012).

¶ 6 At trial, the State presented testimony from various witnesses establishing that on May 3, 2014, defendant took from the Norridge Kmart a total of six pallets, valued at $72, and drove away in his truck without paying or receiving permission to take them. The parties stipulated that defendant had a previous conviction for retail theft in case No. 00125524901. The State entered various exhibits into evidence, and the trial court viewed a video depicting defendant taking the pallets from the Kmart receiving area.

¶ 7 Defendant testified that, about six months before the incident at issue, he had a conversation with a person who was driving a forklift in the back of the Kmart at 4201 North Harlem Avenue. The forklift driver told defendant that it would be okay for him to take broken pallets from behind the Kmart for scrapping purposes.

¶ 8 The trial court found defendant guilty of theft, and the cause proceeded to sentencing. The presentence investigation report showed that defendant had an extensive criminal history, which included convictions for the following offenses: attempted criminal sexual assault in 1983, possession of a controlled substance in 1993 and 1996, violation of an order of protection in 1999, retail theft of less than $150 in 1999, possession of a stolen vehicle in 2000, two retail thefts in 2000, theft in 2004, and possession of a controlled substance in 2005 and 2007. The State also presented evidence at sentencing that on May 2, 2014, the day before the theft that defendant was found guilty of in this case, defendant also stole pallets from the Kmart located at 4201 North Harlem Avenue.

¶ 9 The trial court sentenced defendant to three years' imprisonment on his theft conviction-which became a Class 4 felony due to his previous conviction for retail theft-and assessed $699 in various fines, fees, and costs. The trial court did not impose as part of its judgment a requirement that defendant register as a sex offender.

¶ 10 Defendant's theft conviction, however, did trigger the collateral consequence of his having to register as a sex offender under the Act. The presentence investigation report indicated that defendant was convicted of attempted criminal sexual assault in 1983 and sentenced to serve four years in prison. At the time of his conviction in 1983, he was not required to register as a sex offender because the Act had not yet been enacted. It was enacted in 1986 and then amended in 2011 to provide that "[a] sex offender or sexual predator, who has never previously been required to register under this Act, has a duty to register if the person has been convicted of any felony offense after July 1, 2011." 730 ILCS 150/3(c)(2.1) (West 2012). Thus, defendant's 2014 felony theft conviction now requires him to register with the appropriate law enforcement agency as a sex offender for his commission of attempted criminal sexual assault in 1983.

¶ 11 On appeal to the appellate court, defendant first argued that the registration requirement of the Act violated his substantive due process rights as applied because under the particular facts of this case, where such a long time had passed since defendant's sex offense, there was no reasonable relationship between the Act's requirement to register and its purpose of protecting the public from sex offenders. 2017 IL App (1st) 143150, ¶ 23, 411 Ill.Dec. 325, 73 N.E.3d 39. The appellate court rejected that argument. It found that the legislature could have reasonably determined that where a defendant commits a sex offense in the past for which he was not required to register and has shown a recent, general tendency to recidivate by committing a new felony offense since the amendment of the Act in 2011, he poses a potential threat of committing a new sex offense in the future. Id. ¶ 24 Moreover, the appellate court noted, "[s]uch a threat is magnified in the instant case, where defendant has committed no less than 11 crimes (6 felonies and 5 misdemeanors), in addition to the 2014 felony theft at issue here, since his attempted criminal sexual assault in 1983." Id. The appellate court concluded that the Act's requirement that defendant register as a sex offender for committing the 2014 felony theft after having committed the 1983 attempted criminal sexual assault is a reasonable method for accomplishing the desired legislative objective of protecting the public from sex offenders, and therefore it found the Act as applied to defendant satisfies the rational basis test and is constitutional. Id.

¶ 12 Defendant next argued that the registration requirement of the Act is a new and ongoing punishment for the attempted criminal sexual assault offense he committed in 1983 and therefore violates the ex post facto clauses of the United States and Illinois Constitutions. Id. ¶ 25. The appellate court rejected this argument as well. Citing People ex rel. Birkett v. Konetski , 233 Ill.2d 185, 207, 330 Ill.Dec. 761, 909 N.E.2d 783 (2009), In re J.W. , 204 Ill.2d 50, 75, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003), People v. Malchow , 193 Ill.2d 413, 424, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000), People v. Adams , 144 Ill.2d 381, 386-90, 163 Ill.Dec. 483, 581 N.E.2d 637 (1991), and People v. Fredericks , 2014 IL App (1st) 122122, ¶¶ 58-61, 383 Ill.Dec. 293, 14 N.E.3d 576, it concluded that the requirement of sex offender registration does not amount to punishment and there was therefore no violation of the ex post facto clauses. 2017 IL App (1st) 143150, ¶¶ 27, 30, 411 Ill.Dec. 325, 73 N.E.3d 39.

¶ 13 ANALYSIS

¶ 14 Before this court, defendant argues that the registration requirement of the Act is unconstitutional as applied to him on substantive due process grounds and violates ex post facto principles.

¶ 15 In response, the State first raises a threshold jurisdictional argument. It contends that a reviewing court has no power on direct appeal of a criminal conviction to order that a defendant be relieved of his obligation to register as a sex offender when that obligation was neither imposed by the trial court nor did it in any way relate to the reasons for his conviction and sentence in that court. We agree with the State.

¶ 16 In criminal cases, "[a] notice of appeal confers jurisdiction on an appellate court to consider only the judgments or parts of judgments specified in the notice." (Emphasis added.) People v. Lewis , 234 Ill.2d 32, 37, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009). Under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the scope of appellate review is defined by the trial court's judgment and the proceedings and orders related to it:

"On appeal the reviewing court may:
(1) reverse, affirm, or modify the judgment or order from which the appeal is taken;
(2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken;
(3) reduce the degree of offense of which the appellant was convicted;
(4) reduce the punishment imposed by the trial court; or
(5) order a new trial."

¶ 17 In the proceedings before the appellate court in this case, that court was not called upon to exercise any of the above delineated powers with respect to defendant's argument that sex offender registration is unconstitutional as applied to him. The requirement that defendant register as a sex offender is not encompassed within the judgment or any order of the trial court. Thus, defendant's argument did not ask a reviewing court to reverse, affirm, or modify the judgment or order from which the appeal is taken. Nor did it ask to set aside or modify any "proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken." Ill. S. Ct. R. 615(b)(2) (eff. Jan. 1, 1967). The requirement that defendant register as a sex offender cannot be fairly characterized as a "proceeding."

¶ 18 Defendant argues that the requirement to register is "punishment," but even if that were true, it would not be "punishment imposed by the trial court." We find that none of the criteria of Rule 615(b) for invoking the powers of a reviewing court have been satisfied in this case. Accordingly, we conclude that a reviewing court has no power on direct appeal of a criminal conviction to order that defendant be relieved of the obligation to register as a sex offender when there is neither an obligation to register imposed by the trial court nor an order or conviction that the defendant is appealing that is directly related to the obligation or the failure to register.

¶ 19 A contrary rule would permit appeal of collateral issues on direct appeal from a criminal conviction not only to sex offender obligations but to a host of other collateral consequences of convictions that are not imposed by trial courts and are not embodied in their judgments. Such consequences would likely include "the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses." See Padilla v. Kentucky , 559 U.S. 356, 376, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (Alito, J., concurring in the judgment, joined by Roberts, C.J.). Allowing defendants to challenge the collateral consequences of a conviction on direct appeal would place a reviewing court in the position of ruling on the validity (or resolving the details) of regulatory programs administered by state agencies and officials that are not parties to the action. See People v. Molnar , 222 Ill.2d 495, 500, 306 Ill.Dec. 116, 857 N.E.2d 209 (2006) (the Illinois State Police is "the agency responsible for implementing [sex offender registration under the Act]").

¶ 20 The only Illinois case that defendant has managed to cite with the same procedural posture as the present case-i.e. , involving a defendant seeking to challenge a collateral consequence of a conviction on direct appeal from that conviction-is People v. Avila-Briones , 2015 IL App (1st) 132221, 401 Ill.Dec. 40, 49 N.E.3d 428. There, however, the State did not make the same argument about the limit on the powers of the reviewing court to address the collateral consequences of a conviction. Instead, the State in that case merely challenged the defendant's ability to raise the sex offender registration requirement on the ground that the defendant lacked standing. The appellate court's antennae were raised relative to the unusual nature of defendant bringing such a claim on direct appeal from the criminal conviction, but it ultimately concluded that the case did not pose a standing problem:

"It is * * * unusual for a defendant to raise the challenges to these nonsentencing laws on direct appeal from his criminal conviction, when a litigant typically does so in a civil action. The trial court, after all, did not impose these restrictions as part of its sentence. Instead, these laws automatically applied to defendant, no matter the trial court's sentence. But that does not alter the fact that defendant checks all the boxes on the requirements for standing." Id. ¶ 32.

¶ 21 We do not find Avila-Briones to be useful authority for resolving the precise issue before us here, which involves the power of a reviewing court to address the issue rather than simply the standing of the defendant. Also, Avila-Briones itself noted the difficulty it faced in reviewing such a case where the record lacked detailed factual findings because defendant "did not file a civil suit and seek an evidentiary hearing before the trial court" with respect to his claims. See id. ¶ 86. The two proper ways that the kinds of constitutional issues involved in this case typically make their way to a reviewing court are (1) through a direct appeal from a case finding a defendant guilty of violating the regulation he attempts to challenge as unconstitutional, such as the sex offender registration law (see, e.g. , People v. Minnis , 2016 IL 119563, ¶¶ 13-17, 409 Ill.Dec. 60, 67 N.E.3d 272 ), or (2) by filing a civil suit seeking a declaration of unconstitutionality and relief from the classification as well as the burdens of sex offender registration (see, e.g. , Johnson v. Madigan , 880 F.3d 371, 373-77 (7th Cir. 2018) (where the court in a civil suit rejected defendant's ex post facto challenge to the same statute at issue here on basically the same facts, finding that the Act did not apply retroactively for ex post facto purposes as applied to defendant) ).

¶ 22 Moreover, the improper tack that defendant chose in this case of raising his as-applied due process challenge to sex offender registration for the first time in the reviewing court in a collateral proceeding without the benefit of a factual record to support the claim makes it difficult if not impossible to adjudicate the claim on appeal. This court has repeatedly held that an as-applied challenge is not properly brought when there has been no evidentiary hearing and no findings of fact. People ex rel. Hartrich v. 2010 Harley-Davidson , 2018 IL 121636, ¶ 31, 423 Ill.Dec. 90, 104 N.E.3d 1179 ; People v. Rizzo , 2016 IL 118599, ¶ 26, 406 Ill.Dec. 488, 61 N.E.3d 92 ; People v. Mosley , 2015 IL 115872, ¶ 47, 392 Ill.Dec. 588, 33 N.E.3d 137 ; In re Parentage of John M. , 212 Ill.2d 253, 268, 288 Ill.Dec. 142, 817 N.E.2d 500 (2004). " ' "Without an evidentiary record, any finding that a statute is unconstitutional 'as applied' is premature." ' " Rizzo , 2016 IL 118599, ¶ 26, 406 Ill.Dec. 488, 61 N.E.3d 92 (quoting Mosley , 2015 IL 115872, ¶ 47, 392 Ill.Dec. 588, 33 N.E.3d 137, quoting John M. , 212 Ill.2d at 268, 288 Ill.Dec. 142, 817 N.E.2d 500 ). All as-applied challenges are, by definition, dependent on application of the law to the specific facts and circumstances alleged by the challenger; therefore, it is crucial that the record be sufficiently developed with respect to those facts and circumstances for purposes of appellate review. 2010 Harley-Davidson , 2018 IL 121636, ¶ 31, 423 Ill.Dec. 90, 104 N.E.3d 1179.

¶ 23 Defendant has the heavy burden of overcoming the strong judicial presumption in favor of the constitutionality of the statute he seeks to challenge. Neither the trial nor the sentencing hearings in this case allowed for the development of the record with a view to litigating a challenge to defendant's sex offender registration obligation. Indeed, that obligation was not even mentioned in the trial court proceedings.

¶ 24 CONCLUSION

¶ 25 Because this is not the proper forum for defendant to raise his claims and because an as-applied constitutional challenge may not be raised where it is litigated for the first time on review, we vacate the portion of the appellate court's judgment that addressed defendant's constitutional claims on the merits, and we now dismiss defendant's appeal.

¶ 26 Appellate court judgment affirmed in part and vacated in part; appeal dismissed.

Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis, and Neville concurred in the judgment and opinion.

      A collateral consequence is an effect upon a defendant that the circuit court has no authority to impose, and it results from an action that may or may not be taken by an agency that the trial court does not control. People v. Delvillar , 235 Ill.2d 507, 520, 337 Ill.Dec. 207, 922 N.E.2d 330 (2009).

      In Minnis , defendant was charged with failing to register as a sex offender. 2016 IL 119563, ¶ 5, 409 Ill.Dec. 60, 67 N.E.3d 272. We noted that a court will not consider a constitutional challenge to a criminal statutory provision under which a defendant has not been charged unless his challenge is brought under the first amendment's overbreadth doctrine. Id. ¶ 13 -14.


text:
    The PEOPLE of the State of Illinois, Appellee, v. Shane D. HARVEY, Appellant.
    Docket No. 122325
    Supreme Court of Illinois.
    Opinion filed September 20, 2018
    James E. Chadd, State Appellate Defender, Jacqueline L. Bullard, Deputy Defender, and Mariah K. Shaver, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Joshua M. Schneider, Assistant Attorneys General, of Chicago, of counsel), for the People.
   CHIEF JUSTICE KARMEIER delivered the judgment of the court, with opinion.

¶ 1 In this appeal, defendant asks us to consider, pursuant to Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967), forfeited claims that the circuit court has erroneously ordered certain fines or fees. The State has conceded error on one assessment, and another-that the court never ordered-has been administratively rectified. We find there was no error with respect to imposition of the remaining fee at issue. Consequently, there is no error to address and no need to determine whether relief would be available by way of Rule 615. We, therefore, affirm the judgment of the appellate court, with the modification hereinafter noted.

¶ 2 BACKGROUND

¶ 3 Defendant, Shane D. Harvey, was charged with domestic battery ( 720 ILCS 5/12-3.2(a)(1) (West 2012) ), with that charged offense elevated to a Class 4 felony due to a prior aggravated battery conviction (see id. § 12-3.2(b) ). Following a November 18, 2013, trial, the jury found defendant guilty as charged. Defendant, through counsel, filed a posttrial motion, and that motion was ultimately denied.

¶ 4 On February 4, 2014, the Adams County circuit court sentenced defendant to the maximum sentence of three years in prison, followed by a four-year term of mandatory supervised release. As part of the judgment, the court ordered defendant to pay certain fines and fees clearly identified-with correlative statutory citations-on a separate sheet titled "Felony Fines, Costs and Assessments." Defendant expressed a desire to appeal, so the court appointed the Office of the State Appellate Defender (OSAD) to represent him. Notice of appeal was filed on February 10, 2014, and the appeal was docketed as case No. 4-14-0100.

¶ 5 While that appeal was pending, on March 6, 2014, defendant filed a pro se "Petition for Reduced Sentence," alleging, inter alia , that his trial counsel should have pointed out several errors that appeared in the presentence investigation report (PSI)-errors which, defendant claimed, caused the trial court to impose the maximum sentence. Defendant-who was obviously otherwise active in his own behalf and attentive to his case-did not raise any issue regarding the imposition of fines, fees, or per diem credit. As a result of defendant's pro se filing, the trial court reappointed defendant's trial counsel. On April 16, 2014, the appellate court granted OSAD's motion for the voluntary dismissal of the pending appeal. People v. Harvey , No. 4-14-0100 (Apr. 16, 2014) (dismissed on defendant's motion).

¶ 6 On June 25, 2014, trial counsel filed a document-purportedly pursuant to Rule 604(d)-averring that she had consulted with defendant and had "ascertained his contentions of error in the sentencing hearing." See Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013). Counsel also claimed to have "examined the transcripts of the trial and of the sentencing hearing" and to have "ascertained that no additional or amended pleadings" were "necessary to adequately present his contentions of error." That same day, at a hearing on defendant's motion, defendant's attorney indicated she wished to stand on defendant's pro se motion. After considering arguments of counsel, the trial court entered an order denying defendant's motion. OSAD was again appointed as counsel on appeal. Notice of appeal was filed June 30, 2014.

¶ 7 On appeal, defendant first argued that the circuit court erred by failing to conduct any inquiry into his claim that his trial counsel had rendered ineffective assistance. As the appellate court noted, "[s]pecifically, in his pro se motion to reduce his sentence, defendant had stated: 'Several points in the PSI were incorrect (which should have been argued by "my" public defender at sentencing).' " 2017 IL App (4th) 140576-U, ¶ 11, 2017 WL 1492998. Citing relevant colloquies of the circuit court and the attorneys, the appellate court observed that the circuit court, at the hearing on defendant's motion, "addressed neither those alleged errors in the PSI nor defendant's contention that counsel failed to address those alleged errors at sentencing." Id. ¶ 14. The appellate court concluded that the circuit court's failure to "conduct any inquiry" warranted "remand * * * to the trial court for that stated purpose." (Emphasis in original.) Id. ¶ 21.

¶ 8 The court then turned to defendant's contentions that some of his fines and fees were improperly assessed and that he otherwise did not receive the proper per diem credit to which he was entitled. The court noted the State's concession of error with respect to one of defendant's contentions and the State's argument-reiterated before this court-that the remainder of defendant's claims were forfeited for failure to raise them in the circuit court. Id. ¶ 23.

¶ 9 Without invoking the plain-error rule and citing People v. Buffkin , 2016 IL App (2d) 140792, ¶ 11, 403 Ill.Dec. 860, 55 N.E.3d 47, for the proposition that the State's confession of error permits review of an otherwise precluded claim, the appellate court accepted the State's concession that the $20 court-appointed special advocate (CASA) fee is comparable to the Children's Advocacy Center (CAC) fee, that it is actually a fine, and that it is thus subject to the application of per diem credit. 2017 IL App (4th) 140576-U, ¶ 24, 2017 WL 1492998. The appellate court referenced People v. Millsap , 2012 IL App (4th) 110668, ¶ 30, 366 Ill.Dec. 229, 979 N.E.2d 1030, for supporting authority that, notwithstanding the statutory label of "fee,"

the CAC fee is actually a fine. In light of the State's concession and the holding of Millsap , the appellate court, as an additional charge to the circuit court upon remand, directed the circuit court to apply defendant's $5 per diem credit toward the $20 CASA assessment. 2017 IL App (4th) 140576-U, ¶ 24, 2017 WL 1492998.

¶ 10 The appellate court then summarized defendant's remaining claims: (1) the $2 state's attorney automation fee is actually a fine and is subject to per diem credit; (2) the sheriff's fee was improperly assessed; (3) the circuit clerk should not have assessed the $250 deoxyribonucleic acid (DNA) fee because defendant was already in the DNA database; and (4) the trial court should not have imposed the $10 Crime Stoppers assessment. The appellate court rejected defendant's first claim, relying upon its prior decision in People v. Warren , 2016 IL App (4th) 120721-B, ¶, 404 Ill.Dec. 21, 55 N.E.3d 117 115, wherein the court held the state's attorney automation fee is in fact a fee because it is intended to reimburse the state's attorneys for their expenses related to automated record-keeping systems. 2017 IL App (4th) 140576-U, ¶ 25, 2017 WL 1492998.

¶ 11 With respect to defendant's remaining contentions, "relat[ing] to the imposition of fees, not fines," the appellate court concluded those claims "do not rise to the level of errors affecting the fundamental fairness or integrity of the judicial process." Id. ¶ 26. The only authority cited by the appellate court is a "Cf. " citation to this court's decision in People v. Lewis , 234 Ill.2d 32, 48, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009), with a parenthetical explanation that the "imposition of a fine without an evidentiary basis implicates fundamental fairness and the integrity of the judicial process sufficient to apply plain-error review." 2017 IL App (4th) 140576-U, ¶ 26, 2017 WL 1492998. The appellate court considered the fine-fee distinction determinative: "[D]efendant cites cases applying plain error to challenges regarding the imposition of fines, not fees. As such, we agree with the State that defendant forfeited review of the issues he raises in this appeal pertaining to the imposition of fees. Such issues were not raised in the trial court proceedings, are forfeited, and are not subject to plain-error review." Id.

¶ 12 ANALYSIS

¶ 13 Before this court, defendant claims that three assessments were erroneously imposed: the DNA analysis fee, the sheriff's fee, and the Crime Stoppers assessment. No other assessments are challenged. Although he concedes that those claims were not preserved by timely objection in the circuit court or inclusion in a postsentencing motion, defendant submits that error with respect to those three assessments may be remedied pursuant to the provisions of Rule 615.

¶ 14 Rule 615 provides as follows:

"(a) Insubstantial and Substantial Errors on Appeal. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.
(b) Powers of the Reviewing Court. On appeal the reviewing court may:
(1) reverse, affirm, or modify the judgment or order from which the appeal is taken;
(2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken;
(3) reduce the degree of the offense of which the appellant was convicted;
(4) reduce the punishment imposed by the trial court; or
(5) order a new trial." Ill. S. Ct. R. 615 (eff. Jan. 1, 1967).

¶ 15 In order to preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required. People v. Hillier , 237 Ill.2d 539, 544, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010) ; see also 730 ILCS 5/5-8-1(c) (West 2008) ("[a] defendant's challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence"). "Under the plain-error rule, codified in Supreme Court Rule 615, '[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded' unless the appellant demonstrates plain error." People v. Leach , 2012 IL 111534, ¶ 60, 366 Ill.Dec. 477, 980 N.E.2d 570 (quoting Ill. S. Ct. R. 615 (eff. Jan. 1, 1967) ). Pursuant to the plain error doctrine, a reviewing court may address a forfeited claim in two circumstances: " '(1) where a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error and (2) where a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.' " People v. Hood , 2016 IL 118581, ¶ 18, 409 Ill.Dec. 1, 67 N.E.3d 213 (quoting People v. Belknap , 2014 IL 117094, ¶ 48, 387 Ill.Dec. 633, 23 N.E.3d 325 ). The initial step under either prong of the plain error doctrine is to determine whether the claim presented on review actually amounts to a "clear or obvious error" at all. People v. Staake , 2017 IL 121755, ¶ 33, 421 Ill.Dec. 936, 102 N.E.3d 217.

¶ 16 Before we take that initial step, however, we pause to consider what is actually in controversy here.

¶ 17 The State suggests that defendant's challenges to the DNA identification fee and the Crime Stoppers "fine" are moot "because there is no effectual relief to be granted: defendant's DNA identification fee does not exist, even as a scrivener's error in the clerk's electronic accounts receivable records, and his Crime Stoppers fine was entirely offset by presentence custody credits." The State notes, and the record confirms, that the circuit court in fact assessed no DNA identification fee, and the State represents-without contradiction-that the circuit clerk was contacted by an attorney for the State and has corrected its electronic accounts receivable records to remove the erroneous reference to "the unassessed fee." In short, there is no fee to vacate. Moreover, the State now concedes it was error for the circuit court to impose a Crime Stoppers "fine," pursuant to section 5-6-3(b)(13) of the Unified Code of Corrections ( 730 ILCS 5/5-6-3(b)(13) (West 2012) ), because, as noted in People v. Jernigan , 2014 IL App (4th) 130524, ¶ 48, 387 Ill.Dec. 958, 23 N.E.3d 650 -among other cases-that "fine" may be imposed only as a condition of probation. However, the State argues that erroneous imposition of that assessment is moot because it is in fact a fine entirely offset by defendant's presentence custody credits. In light of the foregoing considerations, i.e. , correction and offset, respectively, the State argues that issues relating to the DNA assessment and the Crime Stoppers assessment are moot.

¶ 18 In his reply brief, the defendant first acknowledges that the DNA fee has been vacated, though defendant notes the manner in which it was done-at the request of an attorney for the State-and expresses concerns over reliance upon the State in future cases where a DNA fee is improperly assessed a second time following a prior DNA submission and fee. Though defendant concedes that this issue is moot, he argues that this court should consider the issue under the public interest exception to the mootness doctrine. Defendant then notes that the State concedes the imposition of a Crime Stoppers "fine" was unauthorized, and defendant agrees with the State's assertion that his presentence custody credit covered his applicable fines, including the Crime Stoppers "fine." In light of those accords, defendant necessarily agrees with the State's assessment that this issue is moot. Defendant requests that we also consider this issue under the public interest exception to the mootness doctrine.

¶ 19 An issue on appeal is moot where it no longer presents an actual controversy. Cf. In re J.T. , 221 Ill.2d 338, 349, 303 Ill.Dec. 103, 851 N.E.2d 1 (2006). Reviewing courts will not decide moot or abstract questions or render advisory opinions. Id. A court of review may, however, review an otherwise moot issue pursuant to the public interest exception to the mootness doctrine. Id. at 350, 303 Ill.Dec. 103, 851 N.E.2d 1. The narrowly construed public interest exception to the mootness doctrine requires that (1) the question presented is of a public nature, (2) a need exists for an authoritative determination of the question for the future guidance of public officers, and (3) the question is likely to recur. In re Jarquan B. , 2017 IL 121483, ¶ 17, 421 Ill.Dec. 901, 102 N.E.3d 182. We find that the public interest exception to the mootness doctrine does not warrant any meaningful discussion of the DNA fee issue, for which defendant could receive no further relief, and it merits only a brief discussion of the Crime Stoppers assessment. We begin with those issues.

¶ 20 First, with respect to the DNA assessment-well, there never was a DNA fee assessed by the court. The judgment sheet titled "Felony Fines, Costs and Assessments," dated the day of the sentencing hearing and signed by the sentencing judge, clearly marked-as should be the procedure in all cases-the fines, fees, and costs the judge imposed. The judge left blank the line associated with the "$250 DNA Analysis Fee." This court has affirmed and reaffirmed, in a succession of recent cases, the principle that the circuit clerk's assessment of a fee not authorized by the circuit court does not reflect the judgment of the court. See People v. Gutierrez , 2012 IL 111590, ¶¶ 21-24, 356 Ill.Dec. 752, 962 N.E.2d 437 ; People v. Hardman , 2017 IL 121453, ¶ 55, 422 Ill.Dec. 805, 104 N.E.3d 372 ; People v. Vara , 2018 IL 121823, ¶¶ 25, 28, 2018 WL 2453148. No one now disputes that the erroneous DNA fee entry in this case has been deleted from the circuit clerk's electronic accounts receivable records. No further relief can be afforded defendant. Moreover, there is no question that a defendant who, like this defendant, is already in the DNA database cannot be ordered to pay another DNA analysis fee. See People v. Marshall , 242 Ill.2d 285, 303, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011) ("[S]ection 5-4-3 authorizes a trial court to order the taking, analysis and indexing of a qualifying offender's DNA, and the payment of the analysis fee only where that defendant is not currently registered in the DNA database."). Thus, the second criterion for invocation of the public interest exception is lacking here: there is no need for "an authoritative determination of the question * * * for the future guidance of public officers." See In re Shelby R. , 2013 IL 114994, ¶ 16, 374 Ill.Dec. 493, 995 N.E.2d 990. Marshall provides the guidance and the pertinent authority.

¶ 21 In our view, the same deficiency would seem to militate against public interest consideration of the circumstances requisite to the Crime Stoppers assessment. It should be self-evident to all that the section 5-6-3 assessment does not apply here. All that is required is that one actually look at the authorizing statute. A look at the heading of section 5-6-3 tells us that it pertains to "Conditions of Probation and of Conditional Discharge." Subsection 13 sets forth one of those conditions, but it does not apply unless the defendant has been sentenced to probation or conditional discharge . This defendant was not so sentenced; hence, subsection 13 obviously does not apply to him. We strongly encourage state's attorneys, defense counsel, and sentencing judges to look at the authorizing statutes before the court imposes attendant fines and fees. The circumstances for application of this fine seem straightforward enough: either incarceration (no assessment) or community-based disposition (potential assessment). See generally People v. Goossens , 2015 IL 118347, ¶ 10, 396 Ill.Dec. 130, 39 N.E.3d 956 ("This court has repeatedly interpreted section 5-6-3(b) of the Code ( 730 ILCS 5/5-6-3(b) (West 2010) ) to mean a court may in its discretion require a probationer to comply with any of the enumerated conditions" therein. (Emphases added.) ) Since the parties agree that the assessment should not have been imposed in the first place, it does not matter here what it is-fine or fee.

¶ 22 That brings us to the assessment actually contested in this case: the sheriff's fee. Defendant's contention that the sheriff's fee-imposed pursuant to section 4-5001 of the Counties Code ( 55 ILCS 5/4-5001 (West 2012) ), as permissibly increased by county ordinance-was erroneously excessive. The basis for defendant's argument is that the Adams County ordinance, which increased the amount that could be charged for various services performed by the sheriff, did not specifically address the service of subpoenas and the fee for return of process served. Thus, defendant argues that those services should have been charged at the lower statutory rate. In brief, the State's contention is that the language of the county ordinance could be construed to subsume service of subpoenas and return of process and that was the intent of county officials when they enacted the ordinance.

¶ 23 Defendant bears the burden of demonstrating a clear or obvious error. People v. McLaurin , 235 Ill.2d 478, 497-98, 337 Ill.Dec. 221, 922 N.E.2d 344 (2009). He has not carried that burden.

¶ 24 Defendant's argument that the sheriff's fee exceeded allowable limits is premised upon the contention that the Adams County ordinance (Adams County, Ill., Ordinance to Increase Fees in the Sheriff's Office (Oct. 11, 2011) ) that purported to raise the sheriff's fees again in 2011-after they had been increased in 2003 above the monetary limits set forth in the applicable statute-was ineffective to increase the fees for "subpoenas" and "criminal process" because neither term was specifically used in the 2011 ordinance.

The enacting ordinance and the accompanying cost study required for the fee increase refer only to "civil process service and return." In the 2011 ordinance, the then "current fee amount" for that service was listed as $30, with a "proposed new price" of $40, which was adopted by the county board. There is, in the ordinance, no breakdown for types of service beyond "civil process," "tax notice," and "warrant/body attachment," whereas section 4-5001, the base statutory provision, includes an extensive list of specific categories of service. See 55 ILCS 5/4-5001 (West 2012). Although defendant, in his reply brief, instructs us on the difference between criminal and civil process, the statute does not draw a generic distinction between "civil" and "criminal" process. For example, there is no differentiation between subpoenas served in civil and criminal cases.

¶ 25 The State argues that the term "civil process," as employed in the ordinance and accompanying cost study, is intended to-and does in fact-subsume service of subpoenas in criminal cases. The State notes that the term "civil process" is defined in the cost study attached to the ordinance and is explicitly "made a part [t]hereof." The State claims that term is defined as "service of all papers except tax notices and warrants." That is a somewhat loose interpretation of the definition in the cost study. However, the cost study does state: "Papers of the same priority that are served using the same method were classified generically as 'Civil Process' and the cost of activity was determined as a group."

¶ 26 This court's primary objective in interpreting a statute or ordinance is to ascertain and give effect to the intent of the legislative body. Henderson Square Condominium Ass'n v. LAB Townhomes, LLC , 2015 IL 118139, ¶ 67, 399 Ill.Dec. 387, 46 N.E.3d 706. What was true 64 years ago is still true today: "All laws should receive a sensible interpretation, and [an] * * * ordinance will not be so literally construed as to produce an absurd result which, even though within its letter, is contrary to the obvious legislative intent." Village of Itasca v. Luehring , 4 Ill.2d 426, 429, 123 N.E.2d 312 (1954). We do not believe that the county board intended that service of "civil process" be compensated, under the most recent fee enhancement ordinance, at $40, while "criminal process" and all subpoenas are compensated at $10, the amount set forth in the base statute. It appears to us that the umbrella term, "civil process," is sufficient, as defined in the ordinance, to cover the fees charged here. If it were necessary to read the terms at issue into the ordinance, we would do so using our analogous authority with respect to statutory omission. See People v. Masterson , 207 Ill.2d 305, 329, 278 Ill.Dec. 351, 798 N.E.2d 735 (2003) ("When the intent of the legislature is otherwise clear, the judiciary possesses the authority to read language into a statute which has been omitted through legislative oversight.").

¶ 27 If an error has been made, it would seem it is, as the State argues, one in defendant's favor. It appears that some of the charges for served subpoenas were entered at the previous rate of $30. Defendant does not challenge the prior ordinance. He has not demonstrated error.

¶ 28 In sum, pursuant to the State's confession of error, we vacate the Crime Stoppers assessment, and we accept the State's representation-undisputed by defendant-that there is no DNA fee assessed in the circuit clerk's database. There, of course, never was a judicially imposed assessment in that regard. In light of the foregoing circumstances, the appellate court judgment is modified to the extent that the Crime Stoppers assessment is vacated. In all other respects, as regards issues actually raised before this court, concerning judicially imposed assessments, the judgment of the appellate court is affirmed.

¶ 29 Appellate court judgment affirmed as modified.

Justices Thomas, Kilbride, Garman, Burke, Theis, and Neville concurred in the judgment and opinion.

      Defendant in this case raised the monetary assessment issues in a timely filed appeal in which he asserted an issue otherwise properly preserved, i.e. , an issue relating to the ineffectiveness of his trial counsel and the circuit court's failure to adequately inquire regarding same. Revestment of jurisdiction-as discussed in Buffkin and People v. Griffin , 2017 IL App (1st) 143800, 415 Ill.Dec. 241, 82 N.E.3d 186, appeal allowed , No. 122549, 419 Ill.Dec. 670, 93 N.E.3d 1087 (Nov. 22, 2017) -is not relevant here; forfeiture is. We express no opinion with respect to those procedural circumstances or the analyses of those cases.

      Neither party disputes the character of the state's attorneys automation fee before this court.

      The statutory rate for service of a subpoena is $10 and $5 for return of process. 55 ILCS 5/4-5001 (West 2012).

      There is no copy of the 2003 ordinance in the record, so we have no way of knowing what language was employed therein.

      The charge of $30 for the service of 10 subpoenas and $40 for the remaining 5 would, as the State points out, account for the total sheriff's fee of $515, when "the one dollar for the one-mile round trip per subpoena" is included.

      Defendant opines that "the State cites no authority providing for assessing a Sheriff's fee pursuant to a superceded version of an ordinance, or otherwise allowing for a $31 fee." In light of our finding that the 2011 ordinance permitted a charge of $40 for service and return of each subpoena, we deem it unnecessary to respond to defendant's argument that a $30 charge in his favor was error. What relief could we provide? Moreover, since defendant has not provided a copy of the 2003 ordinance, we have no way of knowing what language was employed in that ordinance, such that the 2011 enactment would be, in defendant's words, "superceding."

      In passing, we welcome the enactment of Public Act 100-987 (eff. in part July 1, 2018, in part July 1, 2019), which will bring to sentencing assessments much needed simplicity and transparency that will inure to the benefit of the parties and courts. The Public Act, laudably, will also empower the sentencing courts to grant payment waivers in those circumstances where that relief is warranted.