Background
After a bench trial in Cook County, Leslie Nieto was convicted of DUI for driving with a blood alcohol concentration of at least 0.08 and for driving while under the influence of alcohol. An officer had observed Nieto driving about 60 mph in a 30-mph zone and nearly striking a curb. Officers observed bloodshot, watery, glassy eyes and a strong alcohol odor, and Nieto admitted drinking alcoholic seltzers.
Nieto performed field sobriety tests, submitted to a preliminary breath test registering 0.201, and later took an evidentiary breath test registering 0.196. She challenged the denial of her suppression motion, the admission of the breath-test result, asserted a due-process violation based on the trial court’s description of the evidence, and argued that the two DUI convictions violated Illinois’s one-act, one-crime rule.
The Court’s Holding
The appellate court affirmed the BAC-based DUI conviction. Although the court concluded that the horizontal gaze nystagmus test was admitted without adequate proof that the officer performed required pretest checks for equal pupil size and equal eye tracking, it held that error harmless. The remaining circumstances—including excessive speeding, near-curb driving, alcohol-related observations, performance on other field tests, an admission to drinking, and the 0.201 preliminary breath-test result—established probable cause for the arrest.
The court also upheld admission of the evidentiary breath-test result. The officer’s unrebutted testimony that he was a licensed Breath Analyst Operator when he administered the test sufficiently established that element of the foundation. Any alleged misstatements in the trial court’s ruling were harmless beyond a reasonable doubt. But both DUI counts arose from the same act, so the court vacated the impairment-based conviction under section 11-501(a)(2) and directed correction of the sentencing order to reflect one conviction and sentence under section 11-501(a)(1).
Key Takeaways
- An improperly admitted HGN test may be harmless where other evidence independently establishes probable cause for DUI arrest.
- A general objection to a preliminary breath test did not make a prima facie showing that the test was unreliable or require the State to establish the full testing foundation.
- Multiple DUI convictions based on the same act of driving violate the one-act, one-crime rule and require vacatur of one conviction.
Why It Matters
The decision illustrates that flaws in one field-sobriety test do not necessarily invalidate a DUI arrest when the totality of the circumstances supports probable cause. It also distinguishes preliminary breath-test evidence used at a suppression hearing from evidentiary breath-test evidence admitted at trial.
For sentencing and recordkeeping, the case reinforces that courts must expressly merge or vacate duplicative DUI convictions arising from a single physical act, rather than treating them as implicitly merged.