                            2014 IL App (2d) 121335
                                 No. 2-12-1335
                          Opinion filed August 13, 2014
_____________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-DT-2830
                                       )
TANYA KATHAN,                          ) Honorable
                                       ) Theodore S. Potkonjak,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion.
       Justices Schostok and Hudson concurred in the judgment and opinion.

                                           OPINION

¶1     Following a bench trial, the trial court found defendant, Tanya Kathan, guilty of

“drug-driving” under section 11-501(a)(6) of the Illinois Vehicle Code (Vehicle Code) (625

ILCS 5/11-501(a)(6) (West 2010)).       The court sentenced defendant to 12 months’ court

supervision and imposed a $500 fine.     On appeal, defendant argues that the State’s evidence

was insufficient to prove her guilt beyond a reasonable doubt.   We affirm.

¶2                                   I. BACKGROUND

¶3     On December 10, 2011, the State charged defendant under section 11-501(a)(6) of the

Vehicle Code, which prohibits operating a motor vehicle while there is any amount of a drug,
2014 IL App (2d) 121335


substance, or compound in a defendant’s breath, blood, or urine resulting from the unlawful use

or consumption of a controlled substance. A bench trial occurred on August 10, 2012.

¶4     The State’s only witness was Lake County police officer Jonathan Pedraja, who testified

as follows.   On December 10, 2011, around 6:30 p.m., Officer Pedraja received a report of a

reckless driver in a green Toyota Corolla.          Officer Pedraja drove to the reported area and

observed the car “weaving” in its own lane and crossing over the white fog line. As a result,

Officer Pedraja conducted a traffic stop and asked the driver, defendant, for identification. When

defendant opened her purse, she “frantically looked” for her driver’s license and could not locate it

even though it was clearly visible in her wallet. Defendant said that she and her passenger had

been at a party, and she denied drinking, although Officer Pedraja could smell the odor of alcohol

emanating from the car.

¶5     Officer Pedraja had defendant exit the car, at which time he noticed some damage to her

vehicle’s front right bumper.   Officer Pedraja asked about the damage, and defendant “kind of

fumbled for an answer and said that she hit a curb, although she couldn’t say where the curb was

or how high it was.”

¶6     Officer Pedraja had defendant perform some field sobriety tests, including the

walk-and-turn and one-leg tests. Defendant failed those tests for multiple reasons, including

that she swayed throughout the process and had a hard time keeping her balance.           Defendant

also performed the horizontal gaze nystagmus (HGN) test, which revealed a “very high alcohol

intoxication or impairment by drugs.”     In addition, Officer Pedraja continued to smell alcohol

after defendant exited the vehicle, although he was not sure whether the smell originated from

defendant’s breath, her clothing, or the vehicle.     Overall, Officer Pedraja observed defendant to

be “very incoherent” and “very confused on where she was, where she was going.” He believed



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2014 IL App (2d) 121335


that she was under the influence of alcohol and he arrested her. The trial court viewed the video

of the field sobriety tests and the arrest.

¶7      Following her arrest, Officer Pedraja took defendant to the station and asked if defendant

had taken any medications that day. Defendant responded that she had taken “ ‘two Xanax pills,

one recently before she started driving, and a Vicodin pill.’ ” Officer Pedraja asked if the pills

were prescribed. Defendant replied that they were prescribed by a doctor; that she was to exercise

caution before driving while on those medications; and that she was to take them as needed.

¶8      At the station, defendant refused to submit to a blood or urine test but agreed to take a

blood alcohol content (BAC) test. The BAC test revealed no alcohol in defendant’s system. The

court also watched a video of defendant in the booking room.

¶9      Defendant moved for a directed finding, which the trial court denied.

¶ 10    During closing argument, the State argued that defendant admitted using drugs,

specifically Xanax and Vicodin, “only an hour or two before driving,” meaning that she was guilty

under section 11-501(a)(6) of the Vehicle Code. The State further argued that defendant refused

a blood or urine test because she knew that she would test positive for Xanax or Vicodin.

Defense counsel responded that section 11-501(a)(6) required “some blood, urine, or breath

analysis” to show evidence of drugs or an intoxicating compound in defendant’s system and that

no such evidence had been presented.

¶ 11    The court stated the following in reaching its decision. It had watched the video of

defendant’s weaving; her confusion after being pulled over; the field sobriety tests; and her

admission to ingesting Xanax and Vicodin. According to the court, defendant’s argument that

there was no blood or urine testing was unpersuasive given her refusal to submit to such tests.

The court determined that the State had proven defendant’s guilt beyond a reasonable doubt.



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¶ 12      Defendant filed a motion to reconsider, arguing that the State failed to prove two elements

under section 11-501(a)(6). First, defendant argued that there was no evidence of a drug,

substance, or compound in her breath, blood, or urine. Noting that a violation of section

11-501(a)(6) was a strict liability offense that presumed impairment, defendant argued that

evidence of impairment was irrelevant. Second, defendant argued that the State failed to show

that she “unlawfully used any substance.” Although she admitted taking Xanax prior to driving

her car, defendant pointed out, she never gave a specific time or amount of consumption.

Defendant argued that her statements to Officer Pedraja were admitted at trial as substantive

evidence and that this evidence was not countered by the State.

¶ 13      The State responded that defendant presented no evidence regarding a prescription but

simply relied on Officer Pedraja’s testimony.       Accordingly, there was no testimony as to the

contents of the prescription or whether she took the pills pursuant to the prescription.   Based on

defendant’s admission of taking Xanax and Vicodin, Officer Pedraja’s opinion that she failed the

field sobriety tests, and Officer Pedraja’s observations of defendant’s slurred speech, her

inability to stand, and her confusion, the State argued that the motion to reconsider should be

denied.

¶ 14      The court denied defendant’s motion for reconsideration under section 11-501(b) of the

Vehicle Code. See 625 ILCS 5/11-501(b) (West 2010) (“The fact that any person charged with

violating this Section is or has been legally entitled to use alcohol, other drug or drugs, or

intoxicating compound or compounds, or any combination thereof, shall not constitute a defense

against any charge of violating this Section.”).

¶ 15      Defendant timely appealed.

¶ 16                                       II. ANALYSIS



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¶ 17    On appeal, defendant argues that there was insufficient evidence to prove her guilty of the

offense beyond a reasonable doubt. In reviewing the sufficiency of the evidence, our inquiry is

whether any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. People v. Martin, 2011 IL 109102, ¶ 15. “We view the evidence in the light

most favorable to the prosecution, and allow all reasonable inferences from that evidence to be

drawn in favor of the prosecution.” Id.

¶ 18    Section 11-501(a)(6) prohibits the operation of a vehicle with “any amount of a drug,

substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use ***

of *** a controlled substance listed in the Illinois Controlled Substances Act.” 625 ILCS

5/11-501(a)(6) (West 2010). As in the trial court, defendant argues on appeal that the State failed

to prove (1) any amount of a controlled substance in her breath, blood, or urine (2) resulting from

the unlawful use of a controlled substance.

¶ 19    On the first issue, defendant argues that, although she admitted to ingesting Xanax and

Vicodin pursuant to a prescription, there was no evidence that it was still in her system at the time

of arrest. According to defendant, the bulk of the testimony presented in this case was about

impairment, which was irrelevant under section 11-501(a)(6). See Martin, 2011 IL 109102, ¶ 26

(violation of section 11-501(a)(6) is a strict liability violation rather than a violation that requires

proof of impairment); see also People v. Vente, 2012 IL App (3d) 100600, ¶ 11 (section

11-501(a)(6) does not require proof of a driver’s impairment, but instead requires only that a driver

unlawfully use or consume any amount of a controlled substance). The State responds that

impairment was relevant as circumstantial evidence of controlled substances in her system.

While we agree with defendant that section 11-501(a)(6) does not require evidence of impairment,

we also agree with the State that impairment is relevant as circumstantial evidence of guilt. In



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other words, admitting that impairment is not a requirement is not the same as saying that it is

irrelevant.

¶ 20    Case law supports the conclusion that circumstantial evidence is relevant to prove the

presence of a substance in a defendant’s breath, blood, or urine. For example, in People v.

McPeak, 399 Ill. App. 3d 799, 801 (2010), this court addressed the issue of whether there was

sufficient evidence of a controlled substance (cannabis) in the defendant’s breath, blood, or urine

as required under section 11-501(a)(6). In doing so, this court stated that a “criminal conviction

may be based on circumstantial evidence, as long as it satisfies proof beyond a reasonable doubt of

the charged offense.” Id. Circumstantial evidence consists of proof of facts and circumstances

from which the trier of fact may infer other connected facts that reasonably and usually follow

according to common experience. Id. In fact, it was the lack of circumstantial evidence in

McPeak that led this court to reverse the defendant’s conviction. Id. at 803 (noting that aside

from the defendant’s admission that he consumed cannabis about an hour before being stopped,

the State provided no additional evidence of impairment or odor to show that cannabis remained in

his breath, blood, or urine as required under section 11-501(a)(6)); see also People v. Briseno, 343

Ill. App. 3d 953, 962 (2003) (there was sufficient evidence of the defendant’s guilt under section

11-501(a)(6) based on his admission of smoking cannabis just before driving, his slurred speech,

his dilated pupils, his slower-than-average motor skills, and the odor of cannabis emanating from

his breath and his vehicle).

¶ 21    In this case, the State presented sufficient evidence to show the presence of a controlled

substance in defendant’s breath, blood, or urine. Defendant admitted to Officer Pedraja that she

had taken two Xanax pills, one recently before driving, and a Vicodin pill. In addition to this

admission, her level of impairment provided circumstantial evidence that the prescription drugs



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were in her breath, blood, or urine when she was driving. First, defendant was weaving while

driving. Second, defendant could not locate her license even when plainly visible in her wallet.

Third, Officer Pedraja observed defendant to be “very confused” and “very incoherent” as to what

was occurring.    Fourth, defendant could not explain the damage to her vehicle.           Finally,

defendant failed the field sobriety tests in that she swayed throughout the process and had a hard

time keeping her balance. The HGN test provided a basis to conclude that defendant had a high

level of alcohol intoxication or impairment by drugs. Based on all of this evidence, the State

proved beyond a reasonable doubt that drugs remained in defendant’s breath, blood, or urine under

section 11-501(a)(6).

¶ 22   Defendant next argues that the State failed to prove “unlawful use.” According to

defendant, “the most one can say in this case is that [she] had prescription medicine in her system

at the time that she was driving.” In other words, defendant argues that there was no evidence that

she ever unlawfully used or consumed any controlled substance. The State counters defendant’s

argument by relying on People v. Rodriguez, 398 Ill. App. 3d 436 (2009), which held that

unlawfulness was not a separate element of the offense and that possession of a controlled

substance was unlawful per se. Id. at 442.

¶ 23   In Rodriguez, the defendant was found guilty of violating section 11-501(a)(6) based upon

the presence of cocaine in his urine. Id. at 437. The defendant did not challenge the presence of

cocaine in his urine but instead argued that the State did not show that his use was unlawful,

because it did not show that there was no accepted medical use of the cocaine. Id. at 438. The

court reasoned that section 11-501(a)(6) was designed to ban driving a vehicle with any amount of

an unlawfully ingested controlled substance in a person’s breath, blood, or urine. Id. at 440. In

defining the word “unlawful” in that section, the court noted that section 11-501(a)(6) expressly



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referred to the unlawful use or consumption of a controlled substance listed in the Controlled

Substances Act and that it was necessary to look to the Controlled Substances Act for the answer.

Id.

¶ 24   The court went on to say that cocaine was a controlled substance under the Controlled

Substances Act. Id. at 441 (citing 720 ILCS 570/206(b)(4) (West 2004)). The Controlled

Substances Act provided that, except as otherwise authorized by the Act, it was unlawful for any

person to knowingly possess a controlled substance. Id. (citing 720 ILCS 570/402 (West 2004)).

The court concluded that, because it was unlawful for any person to knowingly possess a

controlled substance, the State did not have to establish that the use was “unlawful,” but it did have

to establish use or consumption of a controlled substance. Id. at 442. In other words, the court

held that “unlawfulness [was] not a separate element of the offense.” Id.; see also Martin, 2011

IL 109102, ¶ 16 (citing Rodriguez, 398 Ill. App. 3d at 442) (because possession of a controlled

substance was unlawful per se, the State had to establish simply that the defendant used or

consumed a controlled substance before driving; unlawfulness was not a separate element of the

offense).

¶ 25   The Rodriguez court further noted that the language, “except as otherwise authorized” by

the Controlled Substances Act, referred to exceptions and exemptions within the Controlled

Substances Act, including an exemption authorizing lawful possession pursuant to a lawful

prescription of a practitioner. Rodriguez, 398 Ill. App. 3d at 441 (citing 720 ILCS 570/302(c)(3)

(West 2004)). Critical here, the Rodriguez court noted that the Controlled Substances Act

provided that it was not necessary for the State to negate any exemption or exception under the

Act; rather, the burden of proof of any exemption or exception was upon the person claiming it.

Id. (citing 720 ILCS 570/506 (West 2004)). Accordingly, the court stated that “a defendant



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charged with possession of a controlled substance must produce evidence that his possession was

pursuant to a prescription, which then places the burden on the State to disprove the defense

beyond a reasonable doubt.” Id.

¶ 26   Defendant in this case does not dispute that Xanax and Vicodin are controlled substances

under the Controlled Substances Act. See 720 ILCS 570/204, 210 (West 2010). Therefore, once

defendant admitted to ingesting Xanax and Vicodin prior to driving, the State met its burden of

showing that defendant used or consumed a controlled substance. After that, the burden shifted to

defendant to prove the exemption authorizing lawful possession pursuant to a lawful prescription

of a practitioner. See 720 ILCS 570/302(c)(3) (West 2010) (a person may lawfully possess a

controlled substance under the Controlled Substances Act if it is pursuant to a lawful prescription

of a practitioner); see also Rodriguez, 398 Ill. App. 3d at 445 (it has never been a requirement

under the Controlled Substances Act for the State to show the absence of a valid medical

prescription to establish a violation of the Controlled Substances Act).

¶ 27   By arguing that there was no evidence that she ever unlawfully used or consumed any

controlled substance, defendant misunderstands that the burden shifted to her. See Rodriguez,

398 Ill. App. 3d at 445 (“[I]f the use was somehow exempted or excepted as to amount to lawful

conduct, we adhere to the view that an exception would be an affirmative defense the defendant

would have to raise, which we point out was not done in this case.”). Defendant did not present

evidence of a prescription or any evidence in this case. Rather, defendant merely relied on

Officer Pedraja’s testimony to the effect that she claimed to take the medicine pursuant to a valid

prescription. However, as stated, it was not the State’s burden to negate any exemption or

exception under the Controlled Substances Act; rather, the burden of proving any exemption or

exception was upon defendant. See 720 ILCS 570/506 (West 2010). Defendant’s failure to do



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so separates this case from Vente, 2012 IL App (3d) 100600, on which she relies. See id. ¶ 13 (the

evidence established that the defendant had a valid prescription for the cough medicine and that

she had taken the medication in accordance with the prescribed dosage). Because the State

showed that defendant used or consumed a controlled substance, and defendant did not meet her

burden of proving that an exemption applied, there was sufficient evidence of “unlawful use”

under section 11-501(a)(6).

¶ 28   As a final matter, we note that the court denied defendant’s motion to reconsider based on

section 11-501(b). See 625 ILCS 5/11-501(b) (West 2010) (“The fact that any person charged

with violating this Section is or has been legally entitled to use alcohol, other drug or drugs, or

intoxicating compound or compounds, or any combination thereof, shall not constitute a defense

against any charge of violating this Section.”). In addition, the State largely relies on section

11-501(b) as an appropriate basis to affirm defendant’s conviction. However, given our analysis

under section 11-501(a)(6), we need not address the parties’ arguments pertaining to section

11-501(b). See People v. Pankhurst, 365 Ill. App. 3d 248, 258 (2006) (we may affirm on any

basis in the record).

¶ 29                                   III. CONCLUSION

¶ 30   For the aforementioned reasons, the judgment of the Lake County circuit court is affirmed.

¶ 31   Affirmed.




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