People v. Tatera
103 N.E.3d 1059
Ill. App. Ct.2018Background
- On Oct. 6, 2012, Officer Kresen observed Michael Tatera drive through a portion of Blivin Road that was closed with barricades, briefly enter oncoming lane, then turn onto Main Street; Tatera delayed about 10 seconds before pulling over.
- Kresen smelled a moderate odor of alcohol, observed glassy eyes and confusing answers (saying both coming from and going to Wisconsin), and noted Tatera’s repeated placing of hands in his pockets despite instructions.
- Kresen attempted field sobriety testing (one-leg-stand); Tatera asked for instructions to be repeated, refused further testing, became agitated, said “just arrest me,” was arrested, and later refused a breath test at the station.
- Video of the arrest was shown at trial with a 21-second redaction of the HGN portion; the State conceded the HGN was improperly conducted but admitted a portion showing Tatera not following instructions.
- Jury convicted Tatera of aggravated DUI (based on multiple prior DUIs); he was sentenced to eight years’ imprisonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove impairment | Evidence of driving through barricades, odor of alcohol, glassy eyes, confusion, failure to follow instructions, refusal of tests supports conviction | Tasks he performed (no barricade strikes, no weaving, exited car unassisted) show lack of impairment; no chemical test | Affirmed — viewed in light most favorable to State, evidence sufficient to prove impairment to a degree that he could not drive safely |
| Admission of portion of HGN video | Portion admissible to show failure/refusal to follow instructions; State did not rely on HGN results | Entire HGN footage should be excluded because HGN was improperly administered (McKown) | Affirmed — limited footage admissible to show noncompliance; McKown inapplicable where video used only to show failure to follow instructions (King rationale) |
| Prosecutor’s rebuttal argument (burden shifting) | Argued refusal to test demonstrates consciousness of guilt; rhetorical questions used to explain that inference | Statements improperly shifted burden, implying defendant had to prove innocence | Affirmed — preserved objection related remarks were permissible as commentary on consciousness of guilt; other objections forfeited and not considered plain error |
| Double enhancement at sentencing | Prior DUIs used both to qualify for Class X and as aggravation to increase sentence | Using prior convictions for both is improper double enhancement | Affirmed — claim forfeited for failing to file motion to reconsider; on merits court may consider prior convictions both for sentencing-class eligibility and as aggravating evidence (recidivism/failure to rehabilitate) |
Key Cases Cited
- People v. McKown, 236 Ill. 2d 278 (Ill. 2010) (HGN foundational/training requirements for admitting HGN results)
- People v. Barham, 337 Ill. App. 3d 1121 (Ill. App. Ct. 2003) (insufficient evidence of impairment where no corroborating signs of intoxication)
- People v. Johnson, 218 Ill. 2d 125 (Ill. 2005) (prosecutor may argue consciousness of guilt but cannot shift burden by implying defendant must prove innocence)
- People v. Thomas, 171 Ill. 2d 207 (Ill. 1996) (trial court may consider prior convictions both for sentencing-class eligibility and as aggravating factors)
- People v. Wheeler, 226 Ill. 2d 92 (Ill. 2007) (standards and scope for reviewing prosecutorial misconduct in closing argument)
- People v. Nicholls, 71 Ill. 2d 166 (Ill. 1978) (government may recover appellate costs)