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People v. Robinson6/16/2004
This appeal arises from defendant's conviction following a jury trial for driving with a blood-alcohol concentration (BAC) of .08 or more and driving while under the influence of alcohol. He was placed on a period of 18 months' court supervision with **450 ***630 the condition that he undergo three drug tests during that period and pay a fine of $325.
At trial, Officer Richard Barber of the Chicago police department testified that on July 22, 1999, he was on routine patrol when he observed defendant's car in front of him. At that time, the car crossed over the divided white line several times, and the brakes kept going on *624 for no apparent reason. Based upon these observations, Officer Barber effectuated a traffic stop. As he was speaking to the driver, defendant, he observed that his eyes were bloodshot, his speech was slurred, and he stuttered. He also detected a strong odor of an alcoholic beverage on his breath. Officer Barber then ordered defendant to get out of the car and noticed that defendant's balance was unsure, and he was swaying from side to side.
Defendant agreed to take two field sobriety tests at the request of Officer Barber. The first test was the one-leg stand. He was instructed to stand on one foot and lift the other foot six inches off the ground for 30 seconds. Officer Barber testified that defendant failed this test because he was unable to keep his leg raised for 30 seconds, and he put his foot down twice within 20 seconds. Defendant was then administered the horizontal gaze nystagmus test (HGN). Officer Barber testified that as a police officer he had been trained and certified to administer the HGN test and had performed it hundreds of times over the past 10 years. He described nystagmus to the jury as an involuntary jerking of the eyeball while it is moving slowly from one side to the other. The subject is instructed to stare at an object or stimulus and follow it with his eyes without turning his head. In this case, Officer Barber chose a pen as a stimulus and held it 12 to 15 inches from the tip of defendant's nose. Defendant was instructed to stare at the tip of this pen while Officer Barber moved it from left to right. It was explained to the jury that if the eye jerks within a 45-degree angle, that is a sign the person is impaired. In this case, defendant's eyes jerked within a 45-degree angle, causing Officer Barber to conclude that he was under the influence of alcohol. Defendant was also asked to perform two other field sobriety tests, i.e., the walk-and-turn and finger-to-nose tests, but he declined. At that time, he was placed under arrest and transported to the police station. At the police station, after defendant was read his Miranda rights, he admitted that he had consumed six beers prior to driving that evening. He also agreed to take a Breathalyzer test, the results of which showed that his blood-alcohol concentration was .10.
On appeal defendant has raised four issues: (1) whether the trial court erred in excluding evidence of the Breathalyzer machine's malfunctions; (2) whether the trial court erred in admitting the HGN test absent a Frye hearing; (3) whether the trial court erred when it prevented defendant from cross-examining the police officer about his overtime compensation for appearing and testifying in court; and (4) whether the trial court erred in imposing fines without making a prior determination as to defendant's ability to pay.
Prior to trial, defendant filed a motion in limine to exclude the *625 results of the Breathalyzer test. In that motion, he argued that the State would be unable to lay a proper foundation for the admission of the Breathalyzer because (1) the inspector had failed to perform a second analysis on a certified controlled reference sample the mont
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