Ozik v. Gramins, Illinois Appellate Court

Village of Hoffman Estates

1900 Hassell Road

Hoffman Estates, IL 60195

Phone: 847-882-9100

Fax: 847-882-2669

Richard N. Williams

Corporation Counsel

Richard.Williams@HoffmanEstates.org

July 16, 2003

“Strict Liability” for Failure to

Arrest under the Zero Tolerance Law

It is generally held that a police officer in Illinois has no liability for his or her discretionary decision to arrest or not to arrest. In fact, immunities are specifically granted by statute. 745 ILCS 10/4-107 states: “Neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest”. Also, 745 ILCS 10/2-202 states “A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act constitutes willful and wanton conduct”.

In a June 30, 2003 Skokie case, the Illinois Appellate Court upheld a jury’s finding of “willful and wanton” conduct by Skokie officers releasing a 19-year old who drove under the influence and caused the death of his passenger, Ozik.

In Ozik v Gramins, No. 1-00-3280, 2003 Ill. App. Lexis 846, Alla Ozik alleged that her 16-year old son, Mikhail Ozik, was a passenger in a vehicle being operated by 19-year old Alexander Goldberg on September 13, 1995, at 10:16 p.m., when the officers detained and issued traffic citations to Goldberg. She further alleged the officers knew or should have known that the underage Goldberg was intoxicated but allowed Goldberg to retake control of the vehicle at approximately 11:30 p.m. Further, while driving at 11:47 p.m., Goldberg lost control of the vehicle and struck a tree, causing slight injuries to himself and fatal injuries to Mikhail Ozik. Plaintiff sought damages from Goldberg, the officers and the Village. The jury returned a $1.8 million verdict in plaintiff’s favor, reduced the verdict by 35% due to Mikhail Ozik’s contributory negligence, and the trial court entered a judgment of $1.14 million against the officers and the Village.

The Court held that when a police officer undertakes a special duty to another, the “willful and wanton” standard will be an exception to the public duty immunity.

The Court focused on the zero tolerance law and the duties of police officers. They adopted the jury’s apparent agreement with the expert’s opinion. That opinion was: “Further, once Officers Gramins and Glad had sufficient probable cause to conduct the field sobriety tests on Goldberg, they had no discretion whether to enforce the zero tolerance law, even if they believed Goldberg passed the tests. Proper procedure required the officers to take Goldberg to the station and process him for violating the zero tolerance law. Officers Gramins and Glad should have also cited Goldberg for reckless driving and had no discretion as to whether to issue this citation. They violated proper police procedure when they did not cite Goldberg for reckless driving and take him into custody. The officers had probable cause to arrest Goldberg for DUI, and they violated proper police procedure by not citing Goldberg for DUI. Additionally, under either the zero tolerance or DUI laws, an investigating officer is under a duty to smell the breath of the driver. Officer Glad violated proper police procedure when he did not attempt to smell Goldberg’s breath.”

The summary of all of the witness testimony follows if you choose to read. The deceased’s buddies claimed the driver, Goldberg, flunked the field sobriety tests. The Skokie officers testified to no indicia of alcohol. The toxicologist testified to a .204 blood alcohol. The nation’s foremost authority on HGN testified the officer performed it incorrectly. The Plaintiff’s expert’s testimony (former Chicago officer) is in bold print and his opinion was adopted by the jury and the Court.

There was a credibility issue between the “buddies” and the officers. It appeared that the toxicologist’s testimony was decisive (.204). Argument included a claim that it can take four hours to process a DUI and this was why no arrest was made. Further argument was that although five citations were issued, reckless operation would have required an arrest and such a citation was not issued and this is why the officers did not arrest.

The Court held that the 2-202 “willful and wanton” exception prevailed over the 4-107 immunity (statutes cited above) and upheld the finding that the officers’ actions were willful and wanton.

Similar to domestic violence statutes, the zero tolerance statute (625 ILCS 5/11-501.8) creates a “strict liability” against an officer where there are arguable facts for a jury to find that officers should have found some indicia of alcohol use.

The lesson is, if any driver under 21 has any indicia of use of alcohol, don’t even think about using your discretion to allow him or her to drive.

Court’s Summary of testimony in the case:

John Hudson testified he was a passenger in the backseat of Goldberg’s car on the evening of September 13, 1995. He smelled alcohol on Goldberg’s breath while Goldberg drove Hudson, Vlad Pikovskiy, and Mikhail Ozik to Evanston. During the drive, Goldberg drank from a 40-ounce bottle of malt liquor. In Evanston, Goldberg continued to drink from the bottle, and Hudson and Pikovskiy smoked marijuana near the car. Goldberg threw the empty bottle out the car’s window during the return drive to Skokie and began to drive erratically. Goldberg changed from lane to lane at up to 80 miles per hour, and almost hit a car at Howard and McCormick. Goldberg’s eyes were half-closed and bloodshot, and Goldberg was acting drunk. At 60 miles per hour, Goldberg rear-ended a car at McCormick and Dempster, and Hudson was thrown into the front seat. Hudson urged Goldberg to drive away, which Goldberg did by driving northbound in the southbound lanes, turning left against the red light at McCormick and Dempster, and speeding.

Goldberg pulled the car over at a McDonald’s restaurant in response to a pursuing police car and got out of the car when directed by an officer. Goldberg used the door to pull himself from the seat and for support while Goldberg swayed and swerved. Goldberg lost his balance twice before the officers motioned him to the sidewalk, and he then swerved and swayed to the sidewalk. During the one-leg-stand test, Goldberg kept putting his foot down to regain balance. The test was repeated, and Goldberg again lost his balance and put his foot down.

The officers returned Goldberg to the car and had Goldberg drive back toward the accident scene, to a Clark station. Hudson fell asleep in the car for 60 to 90 minutes and woke up around 11:30, when the officers allowed Goldberg to drive away with Hudson, Ozik, and Pikovskiy as his passengers. At around 11:45, Goldberg dropped Hudson and Pikovskiy off at their neighboring homes. At around 12 midnight, Goldberg drove away, tires screeching.

Vlad Pikovskiy, the other backseat passenger, testified Goldberg’s breath had a strong odor of alcohol during the drive to Evanston and that Goldberg’s speech was slurred. On the way back to Skokie, Goldberg began driving 80 miles per hour, swerving into oncoming traffic, and almost hit some parked cars. Pikovskiy warned Goldberg he was going to rear-end a car, and Goldberg applied the brakes, putting his car into a skid. Goldberg’s car struck the other car at 30 to 40 miles per hour, pushing it forward about one car’s length and into the intersection. Pikovskiy told Goldberg that Goldberg was drunk and to leave the scene of the accident, which Goldberg did. When the police approached the car, Goldberg’s window was down, and Pikovskiy heard the officers say the car smelled like weed and liquor. Goldberg almost fell down when he got out of the car at the McDonald’s, stumbled and held onto the car door, then swayed to the sidewalk. During the one-leg-stand test, Goldberg put his foot down right away. When Goldberg followed the police officer to the Clark station, Goldberg was swerving the car within the lane. At the Clark station, he walked the same way he had walked at the McDonald’s. When he drove away from the Clark station, Goldberg was swerving the car within the lane. Goldberg dropped Pikovskiy off at 11:50 or 11:55. Pikovskiy acknowledged that he was convicted of theft in 1997 and two residential burglaries in 1999.

Alexander Goldberg testified that he drank 80 to 120 ounces of beer and malt liquor on September 13, 1995, and had his last drink about an hour before rear-ending the car at McCormick and Dempster. The police officer that stopped Goldberg asked Goldberg if Goldberg was drunk and said he smelled weed in the car. Goldberg was sure the officers were going to know he was drunk because the car stank of weed and he stank of alcohol.

He never said he had taken “Tylenol Cold & Flu.” He was dizzy and noticeably swayed next to the car. He could not stand on one foot because he was drunk. One of the officers returned the car keys to Goldberg and told him to follow the officer to the Clark station. At the Clark station he was given a test with a flashlight shining in his eyes. He was given some tickets, and overheard the officers talking about what a wild bunch of kids they were and that they had been drinking and smoking marijuana. The officers were laughing when they talked about Goldberg being drunk. Goldberg dropped off Hudson and Pikovskiy, and was going to drop off Mikhail Ozik when he lost control of the car approximately seven minutes after being released by the officers.

Rickey Ussery testified that he and his wife were injured when their car was struck by a hit-and-run driver. Ussery drove to the nearby Clark station, where he called 911 and reported the other car’s license plate. Approximately 45 minutes after the accident, at almost 11 p.m., two police cars escorted the other car to the Clark station. One officer, whom Ussery had seen do a U-turn and follow the other car, told Ussery that the other driver was drunk or high on drugs. When Ussery left the Clark station at about 11:15, the officers and other driver were still there.

Skokie police officer Ronald Glad, one of the officers who detained Goldberg at the McDonald’s at 10:16 p.m., testified he began working as a police officer in 1990. He smelled cigarettes when he approached Goldberg’s car. Goldberg denied being in an accident and denied drinking. Goldberg spoke with a Russian accent without slurring. He never heard Goldberg say he had taken Tylenol Cold & Flu. There was no evidence Goldberg had been drinking. An officer needs reasonable suspicion to conduct field sobriety tests, and his reason for testing Goldberg was to detect impairment from alcohol. He administered a one- leg-stand test, and Goldberg did fine. Officer Gramins did the same test and a horizontal gaze nystagmus (HGN). He asked Officer Wolfer to do an HGN, because Officer Wolfer had a penlight, and Goldberg passed the HGN administered by Officer Wolfer. Skokie police policy did not require that three types of tests be administered, and an officer could elect any of the field sobriety tests. He was conducting a DUI and zero tolerance investigation, but he remained three- to-four feet away and did not attempt to smell Goldberg’s breath. This was not a violation of procedure. Goldberg’s breath smelled like cigarettes, not alcohol.

It could take up to four hours to process a DUI. When Officer Gramins issued the five citations to Goldberg, Officer Glad was not aware that Goldberg had driven the wrong direction on McCormick, turned left against a red light, and crossed a double line. Goldberg could have been cited for reckless driving. The criteria for reckless driving and leaving the scene of an accident are very similar, and they carry the same punishment because they are both Class A misdemeanors. Reckless driving requires a custodial arrest; however, leaving the scene of accident does not.

Goldberg left around 11:10 p.m. or 11:15 p.m. and did not drive unusually. Officer Glad spoke with Officer Gramins for a few minutes and then returned to the station. He arrived at the station at 11:20 p.m. or 11:25 p.m. and had no paper work to complete.
Skokie police officer Timothy Gramins testified he was the officer who made the U-turn and followed Goldberg after the first collision. He was hired by Skokie in 1995 and took training at the Chicago Police Academy. He was not required to administer any specific number of the standardized field sobriety tests and could administer the ones he felt were appropriate.

Goldberg was smoking and he told Goldberg to put out the cigarette. Goldberg’s breath did not smell of alcohol. Goldberg denied drinking and said he had taken Tylenol Cold & Flu for a cold. Officer Gramins had no idea how much or when Goldberg took the Tylenol Cold & Flu, but he conducted an HGN test and one-leg- stand test to detect if Goldberg was impaired by the medication. Goldberg spoke with a Russian accent, without slurring. Goldberg did really well on the tests and was not impaired.

Under the zero tolerance law, someone under 21 years could not consume alcohol and drive. If he stopped an under-21 driver for speeding, for example, and detected the driver had consumed one drop of alcohol, he could not allow him to continue driving. It was his duty to take the driver to the station for a breathalyzer test or to the hospital for a blood or urine test. After the test, the person could not drive home and would be turned over to a “reasonable sober” party to be taken home.

He cited Goldberg for failing to reduce speed to avoid an accident, leaving the scene of a property damage accident, speeding, driving left of center, and having one headlight. He did not cite Goldberg for driving northbound in the southbound lanes of McCormick after striking Ussery’s vehicle, turning left against a red after striking Ussery’s vehicle, leaving the scene of a personal injury accident, or reckless driving, in his discretion. He denied that his reason for not writing additional or different citations was that he would have had to complete more paperwork or make a custodial arrest of Goldberg at the end of his work shift. He was scheduled to work until 11:15 p.m., but would be paid overtime if he worked longer. Goldberg left the Clark station at 11:15 p.m., and Officer Gramins arrived back at the station at approximately 11:30 p .m.

Skokie police detective Richard Wolfer testified that he began working for Skokie in 1989 and was a patrol officer on September 13, 1995. When he arrived at the McDonald’s all of the car’s occupants were standing on the sidewalk, and he never saw any of them walk. When he searched the car it smelled of smoke. He administered an HGN test to Goldberg because Officer Glad asked him to and he did not know why Officer Glad made this request. He administered the test by holding a penlight 8 to 10 inches away from Goldberg’s face. He held the penlight at maximum deviation for approximately one second. When asked if he was required to hold the penlight at maximum deviation for four seconds in order to properly administer an HGN test, Officer Wolfer testified he had “never heard of how many seconds” he was supposed to hold the light at maximum deviation. Goldberg followed the instructions about the test and passed the test. Goldberg’s eyes were not watery, and his breath smelled of cigarettes, not alcohol, when he was 12 to 18 inches away. Goldberg did not stumble and stood without swaying or falling. Field sobriety tests cannot be administered arbitrarily, and an officer must first have a suspicion. Under certain circumstances, it could take all four of the field sobriety tests to determine if someone was impaired. Officer Wolfer was called away to the scene of an arson and left before anyone else did.

Skokie police sergeant Frederick W. Brehmer testified he worked as an evidence technician at the fatal accident scene. Goldberg’s vehicle crossed from one side of Dempster to the other, across all four traffic lanes and a center turn lane, struck a tree, and broke in half. The front half of the vehicle continued to travel an additional 46 feet, and the trunk lid flew onto the roof of an adjacent building.

Skokie police officer Vincent Pszczolkowski, who became a police officer in 1981, testified he was dispatched to the fatal accident scene, where he found Goldberg lying on his side on the pavement and checked Goldberg for injuries. He was not checking for impairment, and he did not detect an odor of alcohol. Mikhail Ozik was buckled in the passenger’s seat, with his body facing backward. Mikhail Ozik’s chest was moving when he approached. There was no pulse at the wrist and he covered Mikhail Ozik with a blanket. He cited Goldberg for doing 80 miles per hour in a 35-mile-per-hour zone. Goldberg was taken to the hospital, and Pszczolkowski continued his investigation there at 2 a.m. Goldberg had glassy eyes, slurred speech, smelled slightly of alcohol, and said he had been drinking, and so he cited Goldberg for DUI.

Craig Nordin, a Skokie paramedic, testified that when he arrived at the fatal accident scene, Goldberg was lying in the street being treated by another team of paramedics. He helped put Goldberg on a backboard. His head was at Goldberg’s midsection for about 30 seconds, about 18 to 20 inches from Goldberg’s face, and he did not detect alcohol on Goldberg’s breath.

Emergency room nurse Gail Crabbe, R.N., testified that Goldberg had a strong smell of alcohol coming from his breath and pores when he was brought to the emergency room, which she noted in his hospital chart.

Daniel J. Brown, Ph.D., a forensic toxicologist and former chief of the Illinois crime lab, testified that Goldberg had a blood alcohol concentration (BAC) of .204 and was grossly intoxicated at 10:16 p.m. on September 13, 1995. A person with more than .2 BAC could not mask the signs of intoxication, and Goldberg’s intoxication would have been noticeable to a casual observer. Goldberg was impaired when he drove back to the Clark station, but when a highly intoxicated person is fearful, he has a tendency to focus greatly in order to get through a situation, and Goldberg’s deposition indicated he was afraid of being arrested. Someone within three-to-four feet would have smelled the alcohol being excreted from Goldberg’s skin and on his breath, and Goldberg could not have masked the smell with cigarettes. Persons under the influence of alcohol experience an uncontrollable jerking motion of the eyes known as horizontal gaze nystagmus (HGN), which can be measured. Goldberg would have exhibited HGN. A person giving an HGN test is supposed to hold a pen between 12 and 18 inches in front of the subject’s nose.

Marcelline Burns, Ph.D., a research psychologist with 30 years’ experience researching the effects of alcohol consumption and other drugs on humans, testified that Goldberg’s BAC was .204 at 10:16 p.m. The blood draws showing Goldberg’s BAC were solid scientific data, and the data was consistent with statements given by Goldberg, Pikovskiy, and Hudson, and with what Ussery stated Officer Gramins said to Ussery. The blood draws were not consistent with statements given by Officers Glad and Gramins.

Dr. Burns further testified that a BAC of .204 is very high and severely impairing. Goldberg’s brain processing would have been slowed, his judgment and abilities to balance and walk would have been impaired, and he would have exhibited HGN. There is no scientific evidence that Tylenol Cold & Flu causes HGN. A distinctive odor of alcohol on Goldberg’s breath would have been obvious to people anywhere near him.

Dr. Burns also indicated that she standardized field sobriety tests for the National Highway Traffic Safety Administration (NHTSA), a division of the United States Department of Transportation. These standardized tests are taught to police officers in all 50 states and consist of the one-leg-stand, the walk and turn, and the HGN. Under NHTSA guidelines, an officer has no discretion to use less than all three tests on a suspected drunk and must continue with the testing even if one or two tests are passed. NHTSA issues guidelines and does not require municipalities to adhere to them. The deposition of Skokie police officer Van and a form that Skokie officers used in scoring field sobriety tests indicated that Skokie officers were required to conduct all three of the standardized tests on September 13, 1995. Officers Glad, Gramins and Wolfer used less than all three tests, and Gramins and Wolfer gave the HGN test incorrectly, holding the penlight the wrong distance from Goldberg’s nose. Dr. Burns concluded that Goldberg did not pass the tests.

Skokie police sergeant Frederick W. Brehmer testified that he needed reasonable suspicion that someone had been drinking in order to conduct field sobriety tests, which is a lower standard than the probable cause required to make an arrest. He would need an odor, indications of impairment such as slurred speech, red glassy eyes, or fumbling with a license, or physical evidence such as a can or bottle to have reasonable suspicion of DUI. Once he established reasonable belief, he would proceed with field sobriety tests, and if the driver failed the tests, the officer would have probable cause. On cross-examination, he acknowledged that section 5 of the Skokie police department’s General Order F-47 indicates an officer must have probable cause to support a suspicion of impairment in order to ask a driver to exit the vehicle for further examination. He stated that the document was in error, because if he had probable cause before the driver exited the vehicle, the officer would arrest the person right up front.

Retired Chicago police officer Jack Jucewicz testified he left the police force in 2000, after about 25 years in traffic enforcement and crash investigation, and about 6 years teaching anything traffic related at the Chicago Police Academy. He taught officers they must have probable cause to believe a driver has been drinking before field sobriety tests can be conducted. Officers Gramins and Glad had probable cause to believe Goldberg had been drinking when they stopped him after the first accident. Officers Gramins, Glad and Wolfer were not credible when they made statements about Goldberg’s condition.

Further, once Officers Gramins and Glad had sufficient probable cause to conduct the field sobriety tests on Goldberg, they had no discretion whether to enforce the zero tolerance law, even if they believed Goldberg passed the tests. Proper procedure required the officers to take Goldberg to the station and process him for violating the zero tolerance law. Officers Gramins and Glad should have also cited Goldberg for reckless driving and had no discretion as to whether to issue this citation. They violated proper police procedure when they did not cite Goldberg for reckless driving and take him into custody. The officers had probable cause to arrest Goldberg for DUI, and they violated proper police procedure by not citing Goldberg for DUI.

Additionally, under either the zero tolerance or DUI laws, an investigating officer is under a duty to smell the breath of the driver. Officer Glad violated proper police procedure when he did not attempt to smell Goldberg’s breath.

Thamrong Chira, M.D., a Cook County deputy medical examiner who conducted Mikhail Ozik’s autopsy, testified that death was caused by lacerations and abrasions throughout his body, an open fracture of his right femur, and a dislocated cervical spine.

This memo, drafted for the use of the HEPD, may be reproduced and distributed, but not for commercial gain.