Woodridge DUI Lawyers Ramsell And Associates Win Woodridge Obstructing Arrest In DuPage County

POINTS AND AUTHORITIES

PAGE

STANDARD OF REVIEW

THE DE NOVO STANDARD OF REVIEW APPLIES HERE ……………………………… 5

People v. Edwards , 337 Ill.App.3d 912, 921, 788 N.E.2d 35, 43 (Ill. App. 1 ^st Dist., 2002) ………5

People v. Smith , 194 Ill.2d 408, 411, 732 N.E.2d 513, 514 (Il. S. Ct. 2000)………………………5

ARGUMENT

I. THE COMPLAINT FOR OBSTRUCTING A POLICE OFFICER WAS FATALLY DEFECTIVE BECAUSE IT FAILED TO ALLEGE AN OFFENSE, WHAT ACT THE POLICE OFFICER WAS AUTHORIZED TO PERFORM, AND WHY THE OFFICER WAS AUTHORIZED TO PERFORM IT. THEREFORE, IT CANNOT SUPPORT A CONVICTION.

People v. Billingsley , 67 Ill.App.2d 292,

213 N.E.2d 765 (Ill. App. 2 ^nd Dist., 1966) …………………………………………………9

People v. Heard , 47 Ill.2d 501,

266 N.E.2d 340 (Il. S. Ct. 1970)…………………………………………………………..9

People v. Tucker , 131 Ill.App. 598,

268 N.E.2d 191 (Ill. App. 1 ^st Dist., 1971) …………………………………………………9

1. The criminal complaint fails to allege what authorized act the Defendant allegedly obstructed.

People v. Leach , 3 Ill.App.3d 389,

279 N.E.2d 450 (Ill. App. 1 ^st Dist., 1972) ……………………………9, 10, 11

2. The criminal complaint fails to properly allege that the Defendant committed a crime.

People v. Leach , 3 Ill.App.3d 389,

279 N.E.2d 450 (Ill. App. 1 ^st Dist., 1972) ……………………………………12, 13

People v. Raby , 40 Ill.2d 392,

240 N.E.2d 595 (Il. S. Ct. 1968) …………………………………………………12

People v. Tucker , 131 Ill.App. 598,

268 N.E.2d 191 (Ill. App. 1 ^st Dist., 1971) ………………………………………..13

II. THE DEFENDANT’S ACTIONS DID NOT RISE TO THE LEVEL OF OBSTRUCTION BECAUSE THEY CONSTITUTED MERE ARGUMENT AND THE TRIAL COURT RIGIDLY APPLIED THE STATUTE WITHOUT TAKING INTO ACCOUNT THE REALITIES OF HUMAN BEHAVIOR.

1. The Defendant’s actions did not obstruct the police officer because they only constituted mere argument as a matter of law.

People v. Flannigan ,131 Ill.App.2d 1059,

267 N.E.2d 739 (Ill. App. 5 ^th Dist., 1971 ……………………………………15, 16

People v. Raby , 40 Ill.2d 392,

240 N.E.2d 595 (Il. S. Ct. 1968) …………………………………………………14

People v. Ross , 81 Ill.App.3d 127,

400 N.E.2d 992 (Ill. App. 3 ^rd Dist., 1980) ……………………………………………14

2. The Trial Court improperly found the Defendant guilty solely because he disagreed with the police officer.

SUPREME COURT RULES

Supreme Court Rule 604(b), 155 Ill.2d R. 604(b)……………………………………………….3

STATUTES

720 ILCS 5/31-1(a)…………………………………………………………..10, 11

OTHER REFERENCES

Merriam-Webster Online Dictionary . 2009, Merriam-Webster Online. 14 April 2009. ( http://www.merriam-webster.com/dictionary/retain) ………………………………………………….12

NATURE OF THE CASE

This is an appeal by the Defendant from a finding of guilty on one count of obstructing a police officer after a bench trial. (C. 97 – 98). The Defendant was arrested on November 18, 2007 by Officer Wolfe and Officer Wojcik of the Village of Woodridge Police Department. (C. 1, C. 2 – 97). The Defendant’s bench trial was held on December 3, 2008. (C. 22). At the hearing, Officer Wojcik testified that the Defendant did not comply with his commands to not use his cell phone, which the Defendant had previously placed on the roof of his car. (C. 59 – 60). The Defendant testified that he only wanted to use his cell phone to call for a ride because he saw his wife being arrested for DUI. (C. 90). At the conclusion of the State’s case, the Court denied the Defendant’s motion for a directed finding, ruling that the charging complaint was not fatally defective and the State had made a prima facie case. (C. 77 – 84). During the Defense’s case, the Defendant was the only witness who testified. (C. 85 – 97). At the conclusion of the Defendant’s case, the Defendant renewed his motion for a directed finding, which was subsequently denied. (C. 98). The Trial Court then found the Defendant guilty on one count of obstructing a police officer and did not allow for any closing argument. (C. 98 – 99). On December 10, 2008, the Defendant was sentenced to one year of conditional discharge, 100 hours of public service employment, and $100.00 in fines plus court costs. (C. 15). The Defendant filed his timely Notice of Appeal on December 12, 2008. (C. 18).

ISSUE PRESENTED FOR REVIEW

I. WHETHER THE COMPLAINT FOR OBSTRUCTING A POLICE OFFICER WAS FATALLY DEFECTIVE WHEN IT FAILED TO ALLEGE A CRIMINAL OFFENSE AND FAILED TO STATE WHAT ACT THE POLICE OFFICERS HAD AUTHORITY TO PERFORM.

II. WHETHER THE DEFENDANT WAS GUILTY BEYOND A REASONABLE DOUBT FOR OBSTRUCTING A POLICE OFFICER FOR MERELY DISAGREEING WITH THE OFFICER’S UNEXPLAINED INSTRUCTIONS.

JURISDICTIONAL STATEMENT

This appeal is taken pursuant to Supreme Court Rules 604(b) which governs appeals after a Defendant has been found guilty and sentenced to conditional discharge. 155 Ill.2d R. 604(b).

The Defendant was found guilty of one count of resisting or obstructing a police officer on December 3, 2008 and was sentenced on December 10, 2008 (C. 15, see appendix 2). The Notice of Appeal was timely filed with the clerk of the circuit court on December 12, 2008. (C. 18, see appendix p. 3).

STANDARD OF REVIEW

Because the sufficiency of a complaint is a question of law, this issue should be reviewed de novo. People v. Edwards , 337 Ill.App.3d 912, 921, 788 N.E.2d 35, 43 (Ill. App. 1 ^st Dist., 2002) . In addition, since the Defendant is not challenging any factual findings or credibility determinations made by the Trial Court, the Defendant’s question of guilt is a matter of law and should also be reviewed de novo. People v. Smith , 194 Ill.2d 408, 411, 732 N.E.2d 513, 514 (Il. S. Ct. 2000).

STATEMENT OF FACTS

On November 18th, 2007, Officer Wolfe of the Woodridge Police Department was on patrol during the early morning. (C. 28). Around 2:30 AM, the Officer noticed a vehicle parked three feet from the curb as he passed Oakleaf Court, traveling eastbound on 83rd St. (C. 28). The vehicle’s lights were on, the driver’s door was open, and it appeared that parts of the vehicle had fallen off and were placed in the trunk of the car. (C. 28 – 29). The Officer called for another unit and proceeded to question the male and female who were standing by the vehicle. (C. 29). Officer Wolfe directed his attention to the female, whom he determined was the driver of the vehicle, and began to investigate her for a possible DUI arrest. (C. 31 – 33). Sometime while Office Wolfe was questioning the female and administering field sobriety tests, Officer Wojcick arrived. (C. 33). Officer Wolfe instructed Officer Wojcik to question the male subject, previously identified as the Defendant, to find out his version of the events. (C. 33). Officer Wojcik’s duties were to watch the Defendant as they both were standing by the driver’s side door of the vehicle. (C. 56). As they were standing, Officer Wojcik told the Defendant to place the Defendant’s cell phone on the roof of the vehicle. (C. 58). The Defendant complied and placed his cell phone on the roof of the car. (C. 66; C. 90). The Defendant also complied with Officer’s Wojick’s instructions to sit down in the car and not use his cell phone. (C. 66). However, Officer Wojcik never told the Defendant why he was not able to use his cell phone. (C. 72). After the driver was arrested, the Defendant stood up and reached for his cell phone on the roof of the car. (C; 50; C. 61). Officer Wojick testified that he wanted to the Defendant to remain seated because he was a large man, felt he was intoxicated, and was in an agitated state. (C. 61). However, Officer Wojcik later admitted that he only believed the Defendant was agitated and aggressive because he reached for his cell phone. (C. 71). Officer Wolfe then instructed Officer Wojcik to place the Defendant into custody and the Defendant was transported to the Woodridge Police Station. (C. 37 – 39).

At the end of the State’s case, the Defendant made a motion for a directed finding based on the complaint being fatally defective and the State’s inability to present a prima facie case. (C. 77 – 81). The Defendant argued that the complaint did not state an offense because retaining property is not a criminal action and the complaint fall to allege why the police had lawful authority to tell the Defendant he could not use his cell phone. (C. 57). Also, the Defendant stated that an element was missing from the State’s case because the police officers never established why the Defendant could not use his cell phone. (C. 80 – 81). The State responded by stating that the complaint was sufficient to inform the Defendant of the charges against him and that the Officer’s had lawful authority to control the situation. (C. 79 – 83). The Trial Court denied the Defendant’s motion and the Defense proceeded with its case-in-chief by calling the Defendant to testify. (C. 85)

The Defendant testified that on November 18th, 2007, he and his wife were standing on a street because the car molding from the bottom of his car had fallen off. (C. 86 – 87). The Defendant’s wife was previously driving the car. (C. 87). While he was waiting outside his car, the Defendant called his friends on his cell phone to give him and his wife a ride home. (C. 87). The Defendant stated that he had been drinking during that evening, but did not feel intoxicated. (C. 91). Approximately, ten minutes later, Officer Wolfe approached the Defendant while the Defendant was talking on his cell phone. (C. 88). Officer Wolfe could not recall whether the Defendant was on his cell phone when he first spoke with the Defendant. (C. 46 – 47). When Officer Wolfe approached the Defendant, the Defendant told his friend that he would call him back because the police had arrived. (C. 67). Officer Wolfe asked the Defendant who was driving, and the Defendant answered that his wife was driving. (C. 88). Shortly thereafter, approximately three or four other police cars arrived, along with at least five additional officers. (C. 88).

While Officer Wolfe was performing field sobriety tests on the Defendant’s wife, the Defendant asked Officer Wojcik if he could call his friends to pick him up. (C. 89). While the Defendant was standing next to the passenger side door of the vehicle, the Defendant complied with the Officer’s instructions and placed his wallet, cell phone, and other items on the roof of the car. (C. 90). Once the Defendant saw that his wife was going to be arrested, he wanted to call a friend for a ride home. (C. 90). When the Defendant reached for his cell phone on the roof of the car, Officer Wojcik grabbed his hand and took away his cell phone. (C. 93). Upon further questioning by the prosecutor, the Defendant stated that he did not understand why the officers told him not to reach for his cell phone. (C. 96). Neither of the Officers would tell the Defendant why he was unable to make a phone call, nor did they explain why he had to keep his cell phone on the roof of the car. (C. 94). Thus, the Defendant did not understand why he could not use his cell phone. (C. 97). When the Defendant was arrested, he stated that he was never told why he was being arrested. (C. 92). After the Defendant reached for his cell phone, Officer Wojcik placed him under arrested. (C. 95).

After the Defense rested, the Defendant renewed his motion for a directed finding, which the Trial Court denied. (C. 98). The Trial Court then found the Defendant guilty on one count of obstructing a police officer. (C. 99). The Court made no findings of fact and did not permit Defense counsel to make a closing argument. (C. 99). On December 10, 2008, the Defendant was sentenced to one year of conditional discharge, 100 hours of public service employment, and $100.00 in fines plus court costs. (C. 15, see appendix 2).

ARGUMENT

I. THE COMPLAINT FOR OBSTRUCTING A POLICE OFFICER WAS FATALLY DEFECTIVE BECAUSE IT FAILED TO ALLEGE AN OFFENSE, WHAT ACT THE POLICE OFFICER WAS AUTHORIZED TO PERFORM, AND WHY THE OFFICER WAS AUTHORIZED TO PERFORM IT. THEREFORE, THE DEFENDANT’S CONVICTION SHOULD BE REVERSED.

In this case, the Trial Court erred by denying the Defendant’s motion for a directed finding based on the fact that the Defendant was charged with a defective criminal complaint. (see C. 84). In order for a criminal complaint to be sufficient, it must “set forth the nature and elements of the crime sought to be charged,” People v. Billingsley , 67 Ill.App.2d 292, 299, 213 N.E.2d 765, 769 (Ill. App. 2 ^nd Dist., 1966) . If the criminal complaint fails to state an offense, it is fatally defective, denies the Defendant due process, and will not support a conviction. People v. Heard , 47 Ill.2d 501, 505, 266 N.E.2d 340, 343 (Il. S. Ct. 1970). Furthermore, if the complaint is found defective after a conviction, then the proper remedy is to reverse the conviction without remand. People v. Tucker , 131 Ill.App. 598, 599 268 N.E.2d 191, 192 (Ill. App. 1 ^st Dist., 1971) . Therefore, because the complaint in this case was defective for failing to allege an offense, the Defendant’s conviction should be reversed.

1. The criminal complaint fails to allege what authorized act the Defendant allegedly obstructed.

In order for a complaint to properly allege that the Defendant obstructed a police officer, it must describe the facts that constitute the crime. People v. Leach , 3 Ill.App.3d 389, 394, 279 N.E.2d 450, 453 (Ill. App. 1 ^st Dist., 1972) . If the complaint does not particularize the offense nor describe the acts that constitute a crime, then a conviction cannot stand. Id. at 395. In the instant case, the criminal complaint fails to allege what authorized act the officers were engaged in and what their official duties were at the time. (C. 1, see appendix 1).

The complaint alleges:

“that the said Defendant knowingly obstructed the performance of Police Officer Wolfe #11 and Police Officer Wojcik #93 engaged in an authorized act within their official capacity, in that AIDAS GEMSKIS disobeyed verbal directions given by officers engaged in the execution of their official duties, in that he attempted to retain his property after many commands given by officers…., to wit this occurred in Woodridge, Illinois, DuPage County.” (C. 1, see appendix 1)

The original charging complaint also contained “and he failed to produce officers with identification of his identity,” but was stricken minutes before the trial as “surplusage.” (C. 25). Since the Defendant was charged with obstructing a police officer, one of the issues is “whether the Defendant resisted an ‘authorized’ act of the peace officer,” Leach , 3 Ill.App.3d at 394. Furthermore, “since performance by a peace officer is an element of the crime, failure of the complaint to set forth this element subjects it to a dismissal…” Id.

Similar to the instant case, in People v. Leach , the complaint alleged that the defendant:

“committed the offense of Resisting or Obstructing a peace officer in that she knowingly obstructing the performance of ROBERY GALLOWAY known to her to be a peace officer of CHICAGO POLICE DEPARTMENT while said officer was acting within his official capacity…” 3 Ill.App.3d at 393.

In Leach , the court found that this statute was defective because it failed to allege what authorized act the officer was performing. Id. Although the complaint in the instant case contained the additional language, “engaged in an authorized act within their official capacity,” and “engaged in the execution of their official duties,” these additions do not properly state the necessary element of the offense. (C. 1, see appendix 1). First, the additions only mirror the language of the statute, which states, “any authorized act within his official capacity,” 720 ILCS 5/31-1(a). A complaint that “contains a charge solely in the language of the statute is not sufficient,” Leach , 3 Ill.App.3d at 395. Second, the term “official duties” can range anywhere from a police officer completing a report, answering a 911 call, or following a fleeing fugitive. If the complaint does not describe which duties the officers were performing in their official capacity, then it fails to put the Defendant on notice of the allegations of the complaint. Because the language only generically describes the nature of officer’s duties by repeating the language of the statute, the complaint is missing an element and is thereby defective. Leach , 3 Ill.App.3d at 394.

In People v. Leach , the court found that the defendant’s conviction could not stand because, by simply re-stating the language in the statute, it did not give the defendant notice of the crime. Leach , 3 Ill.App.3d at 395. Similar in this case, the complaint only re-states the language “any authorized act within his official capacity,” without alleging the specific authorized acts. 720 ILCS 5/31-1(a); (C. 1, see appendix 1). Therefore, the Defendant’s conviction in this case cannot stand because the complaint was fatally defective. Leach , 3 Ill.App.3d at 394

2. The criminal complaint fails to properly allege that the Defendant committed a crime.

In addition to failing to allege what authorized act the police officers were engaged in, the complaint also fails to properly describe which of the Defendant’s actions constituted a crime. (C. 1). The complaint states that the Defendant “disobeyed verbal instructions…in that he attempted to retain his property after many commands…” (C. 1; see appendix 1). However, on its face, the actions described in the complaint do not allege a crime. In addition, even taken in the context of the whole complaint, they still fail to state the action that allegedly obstructed the police officer’s duties. (C. 1; see appendix 1). Therefore, the complaint fails to allege an essential element of the statute and is fatally defective. Leach , 3 Ill.App.3d at 394.

The term “obstruction,” in the context of obstructing a police officer, is defined as “an obstacle which may impede, hinder, interrupt, prevent, or delay the performance of the officer’s duties,” People v. Raby , 40 Ill.2d 392, 399, 240 N.E.2d 595, 599 (Il. S. Ct. 1968). However, the language of the complaint fails to describe how “attempting to retain” one’s property constitutes a crime that impedes, hinders, interrupts, prevents, or delays the police officer’s duties. (C. 1; see appendix 1). Simply, attempting to retain property, on its face, does not allege a criminal action.

The definition of “retention” is “1. to keep in possession or use,… 2. to hold secure or intact,” Merriam-Webster Online Dictionary . 2009, Merriam-Webster Online. 14 April 2009. ( http://www.merriam-webster.com/dictionary/retain). By applying the plain meaning of the word “retain,” the complaint alleges that the Defendant attempted to keep or secure his cell phone after many commands by the officer. (C. 1, see appendix 1). However, retaining one’s property is not illegal. Also, the words “attempted to retain” are ambiguous because if one is retaining his property, then they have already secured it. How could the Defendant attempt to retain something that he already had? Furthermore, the complaint fails to state what commands were given. On its face, the allegation that someone “attempted to retain his property after many commands” could just as easily apply to the situation of a driver who is unable to produce his car insurance because he cannot find it in his glove box.

Although the State is likely to argue that the purpose of a complaint is to list the elements of the alleged crime and provide notice to the Defendant of that crime (see C. 79), the complaint in this case fails to allege a crucial element of the crime: What were the Defendant’s criminal actions? In People v. Leach , the court found that a complaint “cannot escape notice that the statute which proscribes the resisting or obstructing of a peace officer does not particularize the offense nor does it describe the acts which constitute the crime,” [emphasis added] Ill.App.3d at 394. The appellate court in People v. Leach overturned the defendant’s conviction because the complaint failed to “particularize the offense nor…describe the acts which constitute the crime.” Id. at 395. Therefore, because an essential element of the crime is absent, the complaint is fatally defective and the Defendant’s conviction should be reversed. Tucker , 131 Ill.App. 598.

II. THE DEFENDANT’S ACTIONS DID NOT RISE TO THE LEVEL OF OBSTRUCTION BECAUSE THEY CONSTITUTED MERE ARGUMENT AND THE TRIAL COURT RIGIDLY APPLIED THE STATUTE WITHOUT TAKING INTO ACCOUNT THE REALITIES OF HUMAN BEHAVIOR.

Although there may be discrepancies in the facts of the case, even if the facts are taken in the light most favorable to the State and accepted as true, the Defendant is not guilty of the offense of obstructing of a police officer. Therefore, the Defendant is not guilty as a matter of law because the alleged acts did not constitute obstructing a police officer under 720 ILCS 5/31-1(a). In addition, the Trial Court’s ruling, which lacked any factual findings, unfairly punished the Defendant for disagreeing with the police officer’s directions. (C. 98 – 99). Accordingly, the Defendant should have been found not guilty beyond a reasonable doubt and his conviction should be reversed.

1. The Defendant’s actions did not obstruct the police officer because his actions only constituted mere argument.

The most important fact overlooked by the Trial Court in this case was that the Defendant was not the subject of the police officers’ investigation. (C. 33). When Officer Wolfe arrived on the scene, he spoke with the female driver and began to establish probable cause to arrest her for DUI. (C. 33). The Defendant in this case was only a passenger; a mere bystander. (C. 61). While Officer Wolfe was performing field sobriety tests on the driver, Officer Wojcik arrived and spoke with the Defendant. (C. 47). After conducting field sobriety tests for thirty minutes with the driver, Officer Wolfe saw the Defendant reach for his cell phone. (C. 51). It was only thirty minutes after the arrest that the Defendant performed the alleged crime of obstructing a police officer. (C. 51).

Therefore, the alleged obstruction only occurred after the driver was placed under arrest for DUI and placed in the patrol car. (C. 50). After the driver was arrested, what official duties were the police performing? In addition, what duties was the Defendant obstructing if his disagreement with Officer Wojcik happened after the driver was already placed under arrest? After the Defendant witnessed his wife being arrested, his only intention was to call for a ride home. (C. 90). When Officer Wojcik began speaking with the Defendant, the Defendant was not under arrest and had not committed any crimes. (C. 67).

The charge of obstructing a police officer does not require an individual to completely and immediately submit to the Officer’s commands. People v. Ross , 81 Ill.App.3d 127, 130, 400 N.E.2d 992, 994 (Ill. App. 3 ^rd Dist., 1980) .

In addition, obstruction does not proscribe:

“mere argument with a policeman about the validity of an arrest or other police action, but proscribe[s] only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent, or delay the performance of the officer’s duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest.”

Raby , 40 Ill.2d at 399.

Not only does the complaint fail to allege that the Defendant performed any of these obstructive “obstacles,” but the evidence at trial failed to show that the Defendant engaged in any of these behaviors as well. (C. 1; C. 27 – 99). The Defendant did not pull his arm away from Officer Wojcik, he did not strike the officer, nor did he not flee from the officer. None of the physical acts alleged to have been made by the Defendant obstructed the arrest of his wife. (C. 27 – 99).

The Defendant’s actions in this case were the result of a misunderstanding with the Officer’s instructions and did not result in any physical or affirmative action that impeded the Officer’s investigation of a DUI. In People v. Flannigan , the Defendant’s conviction was overturned despite the fact that the Defendant did not step out of his car, argued with the officer over the charge, and jerked his arm away when the officer tried to take him out of the car. 131 Ill.App.2d 1059, 1063, 267 N.E.2d 739, 742 (Ill. App. 5 ^th Dist., 1971) . In Flannigan , after the officer stopped the defendant in his car, the officer attempted to reach into the car and take the keys from the defendant’s car. Id. at 1060. Before the officer could reach the keys, the defendant grabbed the keys from the ignition, put them in his pocket, and then put them back into the ignition. Id. When the officer grabbed the keys, the defendant asked him to return the keys, but the officer refused. Id. The 5 ^th District reversed the conviction stating, “Such conduct, while not the paragon of cooperation, was not ‘withstanding the force or effect of’ or the ‘exertion of oneself to counteract or defeat’ Pendall [the officer] in the exercise of his authorized duty,” Id. at 1063.

The factual similarity between Flannigan with the defendant’s keys and the Defendant with his cell phone in this case is readily apparent. However, even in Flannigan , the defendant was the focus of the investigation and arrest. Id. at 1060. In the instant case, the Defendant was only a bystander. The only crime he was charged with was obstructing a police officer and the only alleged criminal actions consisted of him reaching for his cell phone. (C. 1). While these actions may not have been the most cooperative, they did not impede, hinder, interrupt, prevent, or delay the arrest of the driver in any direct or indirect way. (C. 2 – 97). Although Officer Wojcik stated that the Defendant was acting “aggressive,” he later admitted that he only thought he was acting aggressive because the Defendant reached for his cell phone. (C. 72).

Furthermore, the evidence that the interaction between the Defendant and Officer Wojcik was merely an argument is supported by both parties’ testimony. Officer Wojcik did not know why he asked the Defendant to put his cell phone on the roof of the car. (C. 67). He also could not recall why he did not tell the Defendant that he could not use his cell phone. (C. 74). The Defendant’s testimony corroborated the lack of explanation when he stated that the Officer never told him why he was not allowed to call his friends or why he had to put his cell phone on the roof of the car. (C. 94). Since the Officer did not provide an explanation about why the Defendant could not use his cell phone, the Defendant’s actions were not made out of anger or disobedience, but out of confusion. Perhaps if Officer Wojcick had given a reason to the Defendant, then the Defendant would not have reached for his cell phone.

Accordingly, the Defendant’s actions in reaching for his cell phone were based in merely disagreeing with Officer Wojcik. He did not interfere with Officer Wolfe’s arrest of the driver and he did not commit any crime besides the alleged charge. In addition, the facts and alleged criminal actions in Flannigan are analogous and applicable to the Defendant’s case. 131 Ill.App.2d at 1060. Therefore, as a matter of law, the Defendant should have been found not guilty and his conviction should be reversed.

2. The Trial Court improperly found the Defendant guilty solely because he disagreed with the police officer.

Determining why the Trial Court ruled the way it did is a mystery because the Trial Court did not provide any factual findings. (C. 97 – 98). However, since the Trial Court found the Defendant guilty, it is fair to infer that it did so because it found that the Defendant committed the acts in the criminal complaint beyond a reasonable doubt. (C. 1). Most citizens live their day-to-day lives freely without having a strong position of authority directly telling them how to act. Because police officers are in a position of seemingly absolute authority, interactions between police officers and civilians are inherently going to produce some conflict because now the civilian is required to submit to the officers’ requests. Although most citizens will comply with the officer’s orders, civilians who disagree with the officers’ requests are put in a compromising situation, especially if they feel they are being treated unfairly. While it may be easy to microscopically examine the Defendant’s actions in a court of law, the Defendant did not have the luxury of hindsight on that night.

Nevertheless, despite the Defendant’s argumentativeness, he did not physically or aggressively obstruct the police officers while they were establishing probable cause to arrest his wife for DUI. (C. 2 – 97). There must be some latitude in the law that accounts for basic human nature. If an officer grabs an individual by the ay the arm to arrest him, and the individual tenses or pulls his arm away instinctively, is this obstruction? Given the fact that the Defendant did not produce any physical altercation with Officer Wojcik in this case, the Trial Court found him guilty based upon him reaching for his cell phone despite the officer’s request. This strict interpretation does not take into account the fact that individuals may not fully understand the nature or importance of the requests. This is especially true in the Defendant’s case because Officer Wojcik never told him why he could not use his phone and the Defendant clearly did not understand why either. (C. 72; C. 94). By finding the Defendant guilty, the Trial Court applied the law too strictly without taking into account the Defendant’s instinctive response. Therefore, the Defendant’s conviction should be reversed.

CONCLUSION

WHEREFORE, the Defendant prays that this Honorable Court reverse the finding of guilty on one count of obstructing a police officer entered by the trial court, and in its stead direct the trial court to find the Defendant not guilty.

INDEX TO THE RECORD

C0000001 11-19-07 Complaint

C0000002 11-19-07 Bail Bond

C0000003 01-08-08 Appearance

C0000004 01-23-08 Notice of Filing

C0000005 01-23-08 Appearance

C0000006 01-23-08 Substitution of Attorney

C0000007 01-23-08 Motion for Discovery

C0000011 09-17-08 Affidavit

C0000012 09-17-08 Motion to Continue Trial

C0000013 09-17-08 Notice of Filing

C0000014 09-25-08 Waiver of Trial by Jury

C0000015 12-10-08 Criminal Sentence Order

C0000018 12-12-08 Notice of Appeal

C0000019 12-12-08 Writ of Praecipe

C0000020 12-12-08 Notice of Filing

C0000021 12-29-08 Letter

C0000022 12-29-08 Report of Proceedings from 12-03-08

INDEX TO THE REPORT OF PROCEEDINGS

PAGE

Witness: Woodridge Police Officer Wolfe

C0000103 12-03-08 Report of Proceedings From 12-03-08

C0000027 12-03-08 1. Direct Examination……………………………………………..6

C0000046 12-03-08 2. Cross Examination…………………………………………….25

Witness: Woodridge Police Officer Wojcik

C0000054 12-03-08 1. Direct Examination……………………………………………54

C0000063 12-03-08 2. Cross Examination………………………………………………63

C0000073 12-03-08 3. Re-Direct Examination………………………………………..52

C0000076 12-03-08 4. Re-Cross Examination…………………………………………55

Witness: Defendant-Appellant Aidas Gemskis

C0000085 12-03-08 1. Direct Examination……………………………………………64

C0000095 12-03-08 2. Cross Examination………………………………………………74

APPENDIX

ITEM EXHIBIT

Complaint (11-17-09) 1

Criminal Sentence Order (12-10-08) 2

Notice of Appeal (12-12-2008) 3