delivered the opinion of the court:
Defendant Jamie Diaz was convicted of three counts of aggravated driving of a vehicle under the influence of alcohol following a bench trial. The trial court sentenced defendant to the 44 days he served in the Cook County Department of Corrections, as time considered served, and 2 years’ felony probation and assessed fines and fees including a $150 “crime lab driving under the influence (DUI) analysis” fee. Defendant’s motion for a new trial was denied. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) his trial counsel was ineffective, (3) the $150 crime lab DUI analysis fee should be vacated, since no lab analysis was conducted, (4) the assessed fees should be offset by a $5-per-day presentence credit for the 44 days he was incarcerated prior to sentencing, and (5) the mittimus should be corrected to reflect a conviction of only one count of driving a vehicle under the influence of alcohol.
BACKGROUND
The facts of this case are largely undisputed. At 8:44 p.m. on January 26, 2006, Officers Tyler and Tunzi “curbed” a motor vehicle driven by defendant after Officer Tyler observed defendant not wearing a seatbelt. The officer did not observe defendant violate any other traffic laws and, in addition, did not observe defendant swerve or perform any other unusual actions.
Officer Tyler approached the defendant’s driver’s-side window with a lit flashlight and asked defendant to tender his driver’s license. Defendant responded that he did not have one. Tyler observed that defendant had bloodshot eyes, “mumbled” speech with a Hispanic accent, and a “moderate” odor of alcohol. Tyler asked defendant to exit his vehicle. Defendant, a slightly overweight male, complied, and as he exited his vehicle, the officer observed defendant sway and exhibit “a little bit of a balance issue.”
Tyler conducted a horizontal gaze nystagmus (HGN) test. Nystagmus, a physiological phenomenon, is a term used to describe an involuntary jerking of the eyeball. “ ‘[It] *** is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze, disorders of the vestibular apparatus and brainstem and cerebellar dysfunction.’ ” (Emphasis in original.) People v. Buening,
“ ‘[T]he driver [being] asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking. The test is repeated with the other eye. [It is believed by certain law enforcement agencies that,] [b]y observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver’s blood alcohol content (BAG) exceeds the legal limit ***.’ ” Buening,229 Ill. App. 3d at 539-40 , quoting State v. Superior Court,149 Ariz. 269 , 271,718 P.2d 171 , 173 (1986).
Tyler testified that he explained how to perform the HGN test to defendant and that defendant confirmed that he understood. Tyler administered the HGN test by moving a pen from side-to-side at defendant’s eye level. Tyler testified that defendant’s eyes jerked while following the pen and when they were at maximum deviation, leading the officer to opine that defendant was under the influence of alcohol.
Tyler also conducted a one-leg-stand test. Tyler instructed defendant to place his legs together with his arms at his side and then raise his right leg in the air and count to 30. Defendant was unable to complete the one-leg-stand test.
After these visual observations were completed, defendant was arrested for driving a vehicle while under the influence of alcohol and was also ticketed for failing to wear a seatbelt while operating an automobile. Defendant was taken to the police station for processing. Tyler requested defendant to take a Breathalyzer test and to answer the questionnaire on the back of the alcohol influence report, but defendant declined to do either.
The officer read defendant his Miranda rights, after which defendant stated that he was not going to answer any more questions. Notwithstanding that reply, Tyler immediately asked defendant if he had been drinking, and defendant stated that he had consumed two beers and was going out for more when the officers pulled him over. Tyler then ran defendant’s name through the police database and found that he had two prior convictions for driving a vehicle under the influence of alcohol and that his driver’s license was revoked. 625 ILCS 5/11 — 501(a)(2) (West 2006). Section 11 — 501(a)(2) of the Illinois Vehicle Code (Vehicle Code) states: “(a) A person shall not drive or be in actual physical control of any vehicle within [the State of Illinois] while: *** (2) under the influence of alcohol.” 625 ILCS 5/11— 501(a)(2) (West 2006).
Defendant was charged with three counts of aggravated driving of a vehicle while under the influence of alcohol. Count I charged defendant with violating section 11 — 501(a)(2) of the Vehicle Code for a third time during a period in which his driving privileges were revoked. 625 ILCS 5/11 — 501(c—1)(2) (West 2006). Count II charged defendant with violating section 11 — 501(a)(2) of the Vehicle Code while his driving privileges were revoked. 625 ILCS 5/11 — 501(c—1)(1) (West 2006). Count III charged defendant with violating section 11— 501(a)(2) of the Vehicle Code for a third time. 625 ILCS 5/11— 501(d)(1)(A) (West 2006).
At trial, Officer Tyler testified to his familiarity with the behavior of individuals under the influence of alcohol, both as a police officer for 3½ years and from his personal life. He testified that he utilized the HGN procedure he learned at the police academy and adhered to the “three guidelines” regarding HGN testing but could not recall the third guideline on direct examination. He also stated that he uses his “book” and is not required to remember the guideline procedures for HGN testing.
On cross-examination, the officer testified that factors other than intoxication, such as fatigue, can cause nystagmus and difficulty balancing. He stated that he did not know whether defendant suffered from any “physical ] issues” that could have caused the nystagmus aside from alcohol. Tyler further ceded that defendant could have had physical issues that would have precluded him from successfully completing the one-leg-stand test.
The parties stipulated that defendant had his driver’s license revoked pursuant to section 11 — 501 of the Vehicle Code (625 ILCS 5/11 — 501 et seq. (West 2000)) on October 9, 2001, and again on November 1, 2001, on separate traffic citations. The State entered defendant’s traffic abstract into evidence without objection, which documented two prior convictions for driving under the influence and a license suspension in effect on January 26, 2006.
Defendant presented no evidence and did not testify on his own behalf, after defendant’s motion for an acquittal was denied.
The trial court found defendant guilty on all three counts of aggravated driving under the influence of alcohol, noting the visual observations of Officer Tyler upon “curbing” defendant’s vehicle, defendant’s inability to complete the one-leg-stand test, the positive results of the HGN test, and defendant’s admission to having consumed two beers. The trial court orally found that counts II and III merged into count I, although the mittimus lists guilty findings on all three counts. The court sentenced defendant to the 44 days he had served and assessed fines and fees in the amount of $1,905.
ANALYSIS
On appeal, defendant first contends that he was not proven guilty beyond a reasonable doubt. Specifically, defendant argues that the State’s case was based solely on Officer Tyler’s testimony concerning his observations, which were insufficient to prove defendant guilty of aggravated driving a vehicle under the influence of alcohol beyond a reasonable doubt.
Illinois law prohibits any person from (1) “driv[ing] or be[ing] in actual physical control of any vehicle” while (2) under the influence of alcohol. 625 ILCS 5/11 — 501(a)(2) (West 2006). The statute includes a number of aggravating factors, which elevate the penalty from a misdemeanor to a felony. The three specific aggravating factors at issue in this case create felony violations for driving a vehicle under the influence of alcohol “during a period in which [defendant’s] driving privileges are revoked” (625 ILCS 5/11 — 501(c—1)(1) (West 2006)), driving under the influence of alcohol for a “third time, if the third violation occurs [while defendant’s] driving privileges are revoked” (625 ILCS 5/11 — 501(c—1)(2) (West 2006)), and driving under the influence of alcohol “for the third or subsequent time” (625 ILCS 5/11 — 501(d)(1)(A) (West 2006)).
As noted, the parties stipulated that defendant had his driver’s license revoked at the time of his arrest and that defendant had two prior convictions for driving under the influence of alcohol. Accordingly, disposition of defendant’s sufficiency of the evidence argument turns on whether the State proved defendant guilty of a violation of section 11 — 501(a)(2) of the Vehicle Code beyond a reasonable doubt.
The critical inquiry on review of a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham,
In a prosecution for driving a vehicle under the influence of alcohol, the State must establish that (1) the defendant was in actual physical control of a vehicle, and (2) was under the influence of alcohol at the time. 625 ILCS 5/11 — 501(a)(2) (West 2006). In order to prove that defendant was under the influence, the State must prove that as a result of consuming alcohol or any intoxicating compound, the defendant was unable to “ ‘think or act with ordinary care.’ ” People v. Bostelman,
After weighing the evidence in the light most favorable to the prosecution, we cannot say the evidence was so improbable or unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. The evidence presented against defendant was sufficient to convict defendant, without considering the statement (admission) made by defendant at the police station that he had consumed two beers and the findings of the HGN test.
After “curbing” defendant’s vehicle, Officer Tyler observed defendant with bloodshot eyes, “mumbled” speech, and a “moderate” odor of alcohol. The officer’s testimony that defendant failed to complete a one-leg-stand test and that the defendant exhibited a balance problem as he exited his vehicle was undisputed. Based on the officer’s experience in observing people under the influence of alcohol, the officer opined that the defendant was driving a vehicle under the influence of alcohol. Finally, defendant refused to submit to a Breathalyzer test, which is circumstantial evidence of a defendant’s consciousness of his own guilt. People v. Garriott,
As noted, defendant offered no evidence in this case and did not testify on his own behalf. On cross-examination, Tyler conceded that there could be alternative, innocent explanations for the evidence presented against defendant. In closing arguments, defendant, through his attorney, underscored several of these potential explanations. Defendant suggested that his bloodshot eyes could have been caused by allergies or a cold; argued that defendant was overweight, thus had difficulty smoothly exiting the vehicle and successfully performing the one-leg-stand test; argued that defendant speaks with an accent, thus the officer perceived his accent as “mumbled speech.” However, defendant’s closing argument is not evidence and cannot be considered as evidence. People v. Perry,
The burden of proof was on the State to prove the defendant guilty beyond a reasonable doubt. The defendant has no burden and need not testify or present any evidence, and he exercised that privilege. However, in this case the evidence presented by the State, consisting of the officer’s testimony, constituted sufficient evidence to convict when the trial court found the officer’s testimony credible.
In light of the foregoing, we find that the evidence presented in this case before the trial court was not so improbable or unsatisfactory that it created a reasonable doubt as to defendant’s guilt of driving a vehicle under the influence of alcohol.
Defendant next contends that his trial counsel was ineffective. Specifically, defendant contends that (1) his counsel was ineffective for failing to move the trial court to suppress his statement that he had consumed two beers, after invoking his right to remain silent, and (2) for failing to move the trial court to conduct a Fyre hearing before hearing testimony regarding the HGN test results, and (3) for failing to object to the HGN test results.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney committed such serious errors as to fall beyond an objective standard of reasonableness, and that, without those objectively unreasonable errors, there was a reasonable probability that his trial would have resulted differently.” This is a two-prong test. People v. Ward,
As noted, defendant’s first contention under Strickland is that defense counsel was ineffective for failing to move the trial court to suppress defendant’s statement at the police station that he had consumed two beers.
To protect an individual’s right not to be a witness against himself, found in both the United States and Illinois Constitutions (see U.S. Const., amend. V; Ill. Const. 1970 art. I, §10), interrogation must cease once the individual indicates in any manner and at any time prior to or during a custodial interrogation that he wishes to remain silent. People v. Edwards,
This right to silence may be invoked either verbally or through conduct that clearly indicates a desire to end all questioning. See People v. Nielson,
Upon being informed of his rights, including his right to remain silent, defendant stated that he desired to answer no more questions. Immediately upon invocation of his right to remain silent, defendant was asked if he had consumed any alcohol that day. Defendant responded that he had consumed two beers and was going out for more prior to being pulled over.
We can imagine no clearer example of a violation of defendant’s right to remain silent. Once a suspect invokes his right to remain silent, interrogation must immediately cease. People v. R.C.,
Although the statement was taken in violation of Miranda, counsel’s failure to object to the admission of the statement cannot necessarily be said to fall below an objective standard of reasonableness. Even though the statement that defendant had consumed two beers was a clear result of a Miranda violation, this court cannot say that the first prong of the Strickland test was satisfied. It may have been sound trial strategy to allow that evidence to stand and either argue to the court that two beers did not contain enough alcohol to affect defendant’s operation of the automobile when no unusual driving was evident or conclude that the trial court reasonably could find that two beers did not affect the defendant’s operation of his automobile. Ward,
However, even if counsel’s failure to move to suppress this evidence satisfies the first prong, defendant cannot satisfy the second prong of his ineffective assistance of counsel claim because he was not sufficiently prejudiced by his counsel’s failure to move to suppress the station house statement. As noted, under the second prong of the Strickland standard, the defendant must show that, “but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. People v. Colon,
As explained above, even if the station house statement were suppressed, it is not likely that the result of the trial would have been any different. In light of the overwhelming evidence of defendant’s guilt including the officer’s testimony regarding his observations and defendant’s own refusal to take a Breathalyzer, we find defendant cannot satisfy the second prong of the Strickland test.
Defendant then argues that his counsel was ineffective for failing to move the trial court to conduct a Frye hearing to determine the admissibility of the HGN test results.
General acceptance in the scientific community was established as the foundational test for the admission of scientific evidence in Frye v. United States,
“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States,293 F. at 1014 .
The Illinois Supreme Court recently held that a Frye hearing must be held to determine if the HGN test has been generally accepted as a reliable indicator of alcohol impairment. People v. McKown,
In addition, even if the first prong of the Strickland test were satisfied, the admission of this evidence would be harmless error. “ ‘[W]hen the competent evidence in the record establishes the defendant’s guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result,’ ” the admission of the improper evidence can be considered harmless error. McKown,
In the case at bar, even if the results of the HGN test were not admitted into evidence, it is not likely that the result of the trial would have been any different. In light of the overwhelming evidence of defendant’s guilt from the officer’s testimony regarding his observations, and his opinion based on those observations that defendant was driving a vehicle under the influence of alcohol, together with defendant’s refusal to take a Breathalyzer, we find that if the admission of the HGN results without first conducting a Frye hearing to determine its admissibility was error, it was harmless.
Defendant then argues that his trial counsel was ineffective for failing to object to the admission of the results of the HGN test because the State failed to lay a proper foundation.
To lay a proper foundation for the admission of HGN results, the State needs to demonstrate (1) that the officer who administered the test was trained in the procedure and (2) that the test was properly administered. People v. Basler,
A review of the record reveals that defense counsel attacked Officer Tyler’s credibility during closing arguments, specifically highlighting the officer’s inability to recall the third guideline when administering an HGN test. We find defense counsel’s decision not to object to the admission of this evidence, so defendant could later attack the credibility of the officer during closing arguments, to be sound trial strategy. Palmer,
Even if defense counsel had made the objection to the foundation of the HGN evidence and that objection was sustained, counsel’s failure to object would not have resulted in a different trial outcome, as mandated by the second prong of the Strickland test. People v. Evans,
Looking at the totality of the evidence, the trial court observed Tyler’s demeanor, found him to be credible, and gave credence to the aggregate evidence at trial that showed that defendant was driving a vehicle under the influence of alcohol, aside from the results of the HGN test. We conclude that counsel’s failure to object to the admission of the HGN test results did not “undermine confidence in the outcome” of the trial, and would have not changed the result. Strickland,
In addition, defendant argues that the trial court’s mittimus should be corrected to accurately reflect the correct total of fines, fees, and costs.
Defendant was ordered to pay fines and fees that included charges of: $190 (felony complaint filed), $60 (felony complaint conviction), $20 (preliminary hearing), $200 (state DNA identification system), $20 (automation), $15 (document storage), $15 (court services), $5 (court system), $1,000 (DUI — law enforcement — subsequent offense), $30 (court system), $150 (crime lab DUI analysis), $100 (trauma fund), and $5 (spinal cord trauma fund). The trial court’s mittimus incorrectly states that these fines, fees, and costs add up to $1,905, rather than the correct sum of $1,805. Defendant argues that the trial court erred by ordering a $150 crime law DUI analysis fee, since no analysis occurred in this case. We agree. Under section 5 — 9—1.9 of the Unified Code of Corrections (730 ILCS 5/5 — 9—1.9 (West 2006)) a $150 crime lab DUI analysis fee should be assessed in each case where a laboratory analysis occurs. Since no DUI analysis occurred here', the $150 fee must be vacated.
In addition, defendant argues that he is entitled to a $5-per-day credit toward the $1,000 “DUI — Law Enforcement — Subsequent Offense” fine. We agree. Section 11 — 501(j) states that a person found guilty of driving a vehicle under the influence of alcohol shall be fined $1,000 when the person has previously been convicted of this same offense or a similar provision of a local ordinance. 625 ILCS 5/11 — 501(j) (West 2006). This fine is subject to the mandatory credit of $5 for each day that the defendant was incarcerated. 725 ILCS 5/110 — 14(a) (West 2004). Accordingly, defendant was incarcerated 44 days and is entitled to a $220 credit toward the $1,000 fine.
Finally, defendant argues that the mittimus should be corrected to reflect the conviction of only one count of aggravated driving a vehicle under the influence of alcohol to accurately reflect the trial court’s oral pronouncement that the other counts in the information would merge with the first. We agree with defendant and find that the mittimus should be corrected to reflect the proper sentence imposed by the court.
Remandment to the trial court is unnecessary in this case since this court has the authority to directly order the clerk of the circuit court, criminal division, to make the necessary corrections. 134 Ill. 2d R. 615(b)(1); People v. McCray,
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court of Cook County as modified. We vacate the $150 crime lab DUI analysis fine and find that all fines, fees, and costs, with credits, result in $1,435 assessed against defendant.
Affirmed as modified.
WOLFSON and GARCIA, JJ., concur.