People v. Borys
2013 IL App (1st) 111629
Ill. App. Ct.2013Background
- On Sept. 16, 2009 Trooper Christopher Price stopped and arrested Cheri Borys for aggravated DUI (driving under the influence while her license was revoked); he recorded extreme speeding (99–105 mph), lane drift, bloodshot eyes, odor of alcohol, and admissions to drinking.
- Price’s assigned patrol car lacked the statutorily mandated in‑car audio/video recording equipment; the lack was documented with his superiors.
- At bench trial Price described administering standardized field sobriety tests: HGN (horizontal gaze nystagmus), walk‑and‑turn (which Borys failed), and he did not perform the one‑leg‑stand due to her asserted knee injury; Borys refused the breath test.
- Defense objected to HGN testimony for lack of proper foundation and deviation from NHTSA procedures; trial court admitted the HGN testimony over objection.
- The court found Borys guilty and sentenced her to 18 months’ imprisonment; a $200 State DNA ID system fee was assessed though Borys was already in the DNA database.
- On appeal the court considered three issues: admissibility of Price’s testimony given lack of in‑car recording, admissibility/foundation for HGN testimony, and validity of the DNA fee assessment.
Issues
| Issue | State's Argument | Borys's Argument | Held |
|---|---|---|---|
| Whether officer testimony about the traffic stop is inadmissible because patrol car lacked statutorily required audio/video recording | Section 30 of the State Police Act is a directive to equip cars; it does not render testimony inadmissible; no existing recording was destroyed | Testimony should be excluded (or suppressed) as a sanction for noncompliance with statutory recording mandate; lack of recording undermines a fair trial | Testimony admissible; statute is directory not mandatory; no discovery violation or bad faith; no plain error or ineffective‑assistance prejudice shown |
| Whether officer’s HGN testimony was admissible given alleged failure to follow NHTSA protocol and inadequate foundation | Price was trained and used HGN as part of his assessment; testimony admissible | Price failed to follow NHTSA (stimulus at ~4" vs. required 12–15"); foundation insufficient | Admission of HGN testimony was erroneous (foundation lacking) because stimulus placement deviated from NHTSA, but error harmless given overwhelming other evidence |
| Whether trial counsel was ineffective for not moving to suppress testimony about unrecorded stop | No violation of statute; even if error, suppression motion unlikely to succeed; strategic decision | Counsel’s failure to move to suppress was deficient and prejudicial — would have excluded most inculpatory evidence | Ineffective‑assistance claim fails: counsel’s performance not shown to have caused prejudice; no reasonable probability of different outcome |
| Whether $200 State DNA ID system fee can be imposed | State initially sought fee as authorized by statute for qualifying offenders | Fee invalid because defendant already registered in DNA databank | Fee vacated: statute authorizes fee only where defendant is not already in DNA data bank |
Key Cases Cited
- Arizona v. Youngblood, 488 U.S. 51 (due process claim requires bad faith where only potentially useful evidence was lost)
- Illinois v. Fisher, 540 U.S. 544 (per curiam) (distinguishing material exculpatory evidence from potentially useful evidence)
- People v. Kladis, 403 Ill. App. 3d 99 (2010) (upholding suppression sanction where prosecution failed to preserve an existing in‑car recording)
- People v. McKown, 236 Ill. 2d 278 (HGN admissible under Frye when officer properly trained and follows NHTSA protocol)
- People v. Delvillar, 235 Ill. 2d 507 (statutory mandatory/directory analysis; consequences for noncompliance)
- People v. Marshall, 242 Ill. 2d 285 (DNA fee cannot be imposed if defendant already registered in DNA database)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- People v. Glasper, 234 Ill. 2d 173 (structural error discussion)