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SIXTH DIVISION
September 26, 2003

Following a bench trial, defendant Rosbel Briseno was convicted of driving under theinfluence (DUI) of cannabis in violation of section 11-501 (a)(6) of the Illinois Vehicle Code. 625ILCS 5/11-501(a)(6) (West 2000). He was sentenced to two years of court supervision and a$200 fine. On appeal defendant contends as follows: (1) the trial court erred in denyingdefendant's motion to suppress his statement; (2) section 11-501(a)(6) is unconstitutionallyvague; and (3) the State failed to prove defendant guilty beyond a reasonable doubt. For thereasons that follow, we affirm.

BACKGROUND

At trial, Chicago Police Officer Randolph Stevens was the only witness to testify. Defendant was stopped at a DUI roadblock on Stoney Island Avenue, on October 7, 2000, atapproximately 12:30 a.m. Officer Stevens testified that he observed defendant driving a minivan. Officer Flores ordered defendant to exit his vehicle and he was escorted by a policeman to theinvestigation area about 10 feet away. Officer Stevens testified that defendant's vehicle andbreath smelled of cannabis.

Officer Stevens asked defendant if he had smoked marijuana that evening. Defendant toldthe officer that he smoked marijuana in his vehicle, just before driving it. Officer Stevens askeddefendant to perform field sobriety tests. Defendant had some trouble performing the tests,swaying moderately back and forth and extending his arms for balance. Officer Stevens testifiedthat defendant had the odor of cannabis on his breath and in his vehicle, his eyes were dilated, hisspeech was slurred, and his motor skills were slower than average. Based on these factors anddefendant's admission, Officer Stevens arrested defendant and took him to the police station.

Defendant moved to suppress his admission because he had not been advised of hisMiranda rights at the time he made the admission. The motion to suppress was heard inconjunction with the trial. The trial court denied the motion to suppress the statement.

Defendant was found guilty of driving under the influence of cannabis. The trial court denieddefendant's motion for a new trial and sentenced defendant to two years of court supervision anda $200 fine. This appeal follows.

MOTION TO SUPPRESS STATEMENT

Defendant argues the court erred by not suppressing his statement because he made anincriminating admission to the police resulting from custodial interrogation without the benefit ofMiranda warnings. Defendant contends that the failure to "Mirandize" before the custodialinterrogation violated his fifth amendment right under the United States Constitution not to becompelled to incriminate himself. The State argues that defendant was not in custody at the timeof his admission and, therefore, Miranda warnings were not required and no fifth amendment violation occurred.

The denial of a motion to suppress statements is reversed only if that ruling is manifestlyerroneous. People v. Nielsen, 187 Ill. 2d 271 (1999). However, a de novo review of a trialcourt's ruling should be conducted when neither the facts nor the credibility of the witnesses ischallenged. Nielsen, 187 Ill. 2d at 286. In the instant case, defendant does not challenge witnesscredibility and has indicated in his brief that "this issue involves the application of the law toundisputed facts, and the standard of review is de novo." We review the trial court's denial ofdefendant's motion to suppress statements de novo.

The fifth amendment provides: "No person *** shall be compelled in any criminal case tobe a witness against himself ***." U.S. Const., amend. V. In Miranda v. Arizona, 384 U.S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the court addressed how the fifth amendment privilegeagainst compelled self-incrimination could be protected in the context of custodial interrogation. Miranda warnings are unnecessary unless the person is both in custody and being interrogated bythe police. Miranda, 384 U.S. at 436, 16 L. Ed. 2d at 694, 86 S. Ct. at 1602. The Court inMiranda held:

"[T]he prosecution may not use statements, whetherexculpatory or inculpatory, stemming from custodial interrogationof [a] defendant unless it demonstrates the use of proceduralsafeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioninginitiated by law enforcement officers after a person has been takeninto custody or otherwise deprived of his freedom of action in anysignificant way. As for the procedural safeguards to be employed,unless other fully effective means are devised to inform accusedpersons of their right of silence and to assure a continuousopportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has aright to remain silent, that any statement he does make may beused as evidence against him, and that he has a right to thepresence of an attorney, either retained or appointed." Miranda,384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612.

Custodial interrogation occurs when questioning is initiated by law enforcement officersafter a person has been taken into custody or otherwise deprived of freedom of action in asignificant way. Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984). We find the Berkemer case instructive. In Berkemer, a highway patrol officer watched a driverweave in and out of traffic. The officer stopped the driver and asked the driver to get out of thevehicle. The officer noticed the driver was having difficulty standing. The driver could notperform a filed sobriety test, commonly known as a "balancing test" without falling. The officerasked the driver if he had been using intoxicants, and the driver admitted to drinking two beersand smoking marijuana before driving. The driver was then arrested for the misdemeanor ofoperating a motor vehicle while under the influence of alcohol and/or drugs. He was taken to thecounty jail where he made additional incriminating statements. At no time was the driver advisedof his Miranda rights. Berkemer, 468 U.S. at 423, 82 L. Ed. 2d at 324, 104 S. Ct. at 3141.

The Supreme Court held that "a person subjected to custodial interrogation is entitled tothe benefit of the procedural safeguards enunciated in Miranda, regardless of the nature orseverity of the offense ***." Berkemer, 468 U.S. at 435, 82 L. Ed. 2d at 331, 104 S. Ct. at 3148. Accordingly, the Court found that all statements made by the driver after he was arrested andtaken to the county jail were inadmissible at trial because he was not given Miranda warnings.

As to the statements made by the driver before his arrest, the Court found the statementsadmissible. The Berkemer Court recognized that the statements made before the driver's formalarrest raised the question "whether the roadside questioning of a motorist detained pursuant to aroutine traffic stop should be considered custodial interrogation." Berkemer, 468 U.S. at 435, 82L. Ed. 2d at 331, 104 S. Ct. at 3148. The Supreme Court in Berkemer found that although thedriver was not able to leave the scene, he was not in custody for purposes of Miranda. Berkemer,468 U.S. at 440-42, 82 L. Ed. 2d at 334-36, 104 S. Ct. at 3150-52. Noting the fact that trafficstops were usually brief and in public, the Court found that such stops did not significantlyprevent an individual from exercising his privilege against self-incrimination. Berkemer, 468 U.S.at 437-39, 82 L. Ed. 2d at 333-34, 104 S. Ct. at 3149-50. Berkemer held that a motorist detainedas the result of a roadside stop could be questioned without being given Miranda warnings,provided the stop was brief and public. Berkemer, 468 U.S. at 437-40, 82 L. Ed. 2d at 333-35,104 S. Ct. at 3149-50.

In so holding, the Court reasoned that the typical traffic stop is more analogous to a Terrystop (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) than to the kind ofcustodial interrogation addressed in Miranda. The Berkemer Court noted that various features of the traffic stop distinguish it from custodial interrogation, including the fact that the typicaltraffic stop is relatively brief, it is exposed to public view, and the detained motorist is typicallyconfronted by one or two officers. Berkemer, 468 U.S. at 438-39, 82 L. Ed. 2d at 334, 104 S.Ct. at 3149-50. The non-coercive nature of ordinary traffic stops supports the conclusion thatpersons temporarily detained as the result of a traffic stop are not "in custody" for purposes ofMiranda. Berkemer, 468 U.S. at 440, 82 L. Ed. 2d at 335, 104 S. Ct. at 3150.

Similar to Berkemer, in the instant case, defendant was detained as the result of a roadsidestop that was brief and public. Defendant was one of many cars stopped as part of a routineroadblock. The roadblock took place on a major thoroughfare, Stoney Island Avenue, shortlyafter midnight on a Saturday. Only two officers, Stevens and Flores, were in defendant'simmediate presence. Defendant was stopped, exited his vehicle, and was escorted less than 10feet away from his vehicle when Officer Stevens asked defendant if he had smoked marijuana thatevening. At that point, defendant admitted to Officer Stevens that he had smoked marijuana in hisvehicle just before driving it.

We reject defendant's argument that he was in custody at the point when he admitted tosmoking cannabis because the routine stop was transformed into a "lengthy police investigation."A traffic stop, although restraining the driver's freedom of action, does not sufficiently impair thedriver's exercise of the privilege against self-incrimination so as to require that the driver bewarned of his Miranda rights. Berkemer, 468 U.S. at 440-42, 82 L. Ed. 2d at 334-36, 104 S. Ct.at 3150-52. The brief and public nature of a traffic stop mitigates the danger of self-incriminationwhich is present during custodial interrogation. Berkemer, 468 U.S. at 437-39, 82 L. Ed. 2d at333-34, 104 S. Ct. at 3149-50. We conclude that at the point in time when defendant made theincriminating admission his freedom of action was temporarily restrained. However, defendantwas not in custody for the purpose of Miranda warnings, due to the brief and public nature of thestop. Miranda warnings were not required because defendant's statement was not the result ofcustodial interrogation. For the reasons previously discussed, we affirm the trial court's rulingadmitting defendant's statement into evidence.

SECTION 11-501(a)(6) IS NOT UNCONSTITUTIONALLY VAGUE

Defendant contends that section 11-501(a)(6) of the Illinois Vehicle Code (625 ILCS5/11-501(a)(6) (West 2000)) is unconstitutionally vague because it fails to provide the police withthe required minimal guidelines for its enforcement, thereby failing to protect the public frompotential "whims and caprice of officials." See People v. Belcastro, 356 Ill. 144, 147 (1934). Defendant relies on Belcastro in support of the argument stated in his brief that "[a] statute willbe void if it deprives citizens of their liberty without due process of law and if it clothesadministrative officers with arbitrary and discriminatory powers." Belcastro, 356 Ill. at 150.

Section 11-501(a)(6) states in pertinent part as follows:

"[A] person shall not drive or be in actual physical controlof any vehicle within this State while *** (6) there is any amountof a drug, substance, or compound in the person's breath, blood,or urine resulting from the unlawful use or consumption ofcannabis***." 625 ILCS 5/11-501(a)(6) (West 2000).

Defendant contends that "the statute is impermissibly vague because the statute does not requireany definite standards or require specific proof of cannabis in the system so as to avoid arbitraryenforcement and application." Additionally, defendant challenges the statute because it does notrequire any proof of impaired driving ability. In the context of this case, there was testimony thatOfficer Stevens detected the odor of cannabis on defendant's breath and in his vehicle. Defendantargues as follows:

"[I]n the absence of any other circumstances or evidence showingthe consumption of marijuana, the officer's statement only revealsa suspicion that drugs were consumed. Because the statute doesnot require any corroboration and a conviction can rest solely onthe officer's testimony that he smelled cannabis on a suspect'sbreath, the statute is impermissibly vague and thus violates dueprocess."

The flaw in defendant's argument is the failure to recognize that the finding of guilt in theinstant case is not based "solely on the officer's testimony that he smelled cannabis on a suspect'sbreath." Rather, defendant was found guilty of driving under the influence of cannabis based onseveral additional factors including: (1) defendant's operation of a motor vehicle; (2) the officer'stestimony that he smelled a strong odor of cannabis in defendant's vehicle; (3) the officer'stestimony that he smelled the odor of cannabis on defendant's breath; (4) defendant's admissionthat he smoked cannabis in his vehicle just before driving his vehicle; (5) defendant's slurredspeech; (6) defendant's dilated pupils; (7) defendant's motor skills being slower than average; and(8) defendant's performance on the field sobriety tests.

Moreover, Officer Stevens, during the previous 3