(Editor's note: This article has been updated to reflect that St. Clair County Associate Judge Jeffrey Watson placed Cates under supervision in his 2020 DUI case, after rejecting the state's argument for probation).
BELLEVILLE – David Cates of Swansea seeks to avoid a second drunk driving conviction by discrediting the police in Fairview Heights.
His lawyers Chet Kelly and John Baricevic moved to dismiss the charge on Feb. 15, as a sanction for police misconduct.
Kelly wrote, “The court is justified under the applicable law of dismissing the charge against the defendant with prejudice.”
Special prosecutor John Barnard of Quincy responded that, “Defendant is truly grasping at straws.”
Associate judge Tameeka Purchase presides.
Police have charged Cates with drunk driving four times.
Twice he pleaded guilty of lesser offenses.
On the third occasion, in 2020, a trooper stopped him on Interstate 64 a day after his mother Judy Cates lost a race for Illinois Supreme Court.
A police report indicated Cates told the trooper that he would call the courthouse and have the ticket dismissed.
Cates is an attorney, practicing at Cates Mahoney in Swansea.
Barnard took Cates’s 2020 DUI case as special prosecutor. He argued for probation which would automatically revoke the license.
Cates agreed to plead guilty and let Associate Judge Jeffrey Watson choose between revoking his license by placing him on probation or placing him under supervision. Watson ordered supervision and Cates kept driving.
This year’s arrest happened on Jan. 6, around 8 p.m., at Frank Scott Parkway and North Illinois Street.
A woman who had waited for a light to turn green couldn’t proceed because a Ford Expedition truck ahead of her didn’t proceed.
According to a police report, she got out of her vehicle and knocked on the window.
The driver didn’t wake up, so she called 911 and gave the location.
A dispatcher sent police, and the woman at the window kept talking.
She said he appeared to be breathing but not moving; she said his head was slumped over; she said he just woke up and he got out and wobbled.
She said he walked to Lakeland Square parking lot.
Another driver recognized Cates as an acquaintance and took the wheel.
He drove to the parking lot and Cates entered on the passenger side.
Police arrived and officer Julian Feix spoke to Cates.
According to Feix’s report, Cates said he had no idea what was going on, he was headed home, and he didn’t need an ambulance.
Feix wrote that Cates said he drank with people a couple hours ago and he didn’t remember how much he drank.
“I observed his eyes to be bloodshot and glassy, his speech was slurred, he swayed side to side, and there was an odor of alcoholic beverage emitting from his person,” Feix wrote.
He wrote that it was about 13 degrees, so he placed Cates under arrest with the intention of conducting sobriety tests at the police department.
“Cates was secured in handcuffs which were double locked and checked for fit,” he wrote.
At the department, he wrote, Cates refused to participate in any tests.
Cates posted $100 cash bond.
Feix issued him a warning that stated, “If you are not a first offender, your driving privileges will be suspended for a minimum of three years.”
On Jan. 10, Feix wrote that he amended his report “due to corrections required to the probable cause statement.”
On Jan. 19, State’s Attorney James Gomric moved to appoint a special prosecutor due to a conflict of interest.
Chief Judge Andrew Gleeson granted it and asked the State’s Attorneys’ Appellate Prosecutor to make an appointment.
The agency again sent Barnard, who worked as Adams County state’s attorney from 2005 to 2017.
On Jan. 27, Kelly requested a hearing to rescind suspension of the license.
He asked the court to determine whether Cates was lawfully placed under arrest.
He asked whether Feix had reasonable grounds to believe Cates was in actual physical control of the vehicle.
On the same date he filed 36 requests for documents and 35 discovery requests, many pertaining to amendments of the ticket and the suspension notice.
Baricevic entered for Cates and put his name on motions Kelly filed on Feb. 15.
One motion sought to quash the arrest and to suppress evidence, and allegations in that motion made up the basis of a motion for sanctions.
Kelly claimed that on Jan. 6, Feix alleged that Cates drove in an unsafe manner while under the influence of alcohol and drugs.
He claimed Feix filled out a sworn report that he had probable cause to arrest Cates because he stopped in traffic and abandoned his vehicle.
He claimed Feix altered the citation four days later in violation of established law and also created a new sworn report.
He claimed the altered citation alleged an entirely different offense, driving under the influence of alcohol.
He expressed suspicion that the original sworn report no longer existed or was not produced in discovery.
“Defendant should not be forced to rely on the testimony of Officer Feix in this regard, as the credibility of this officer is at question,” Kelly wrote.
“Defendant believes there may have been conversations with other officers of the Fairview Heights police department which led to officer Feix revising the original police officer sworn report and substantively revising the charge for which the defendant was arrested.”
He claimed Cates wasn’t offered sobriety tests until after he was arrested.
He claimed tests aid an officer in assessing whether probable cause exists.
Barnard responded on Feb. 17, stating Kelly irresponsibly suggested that Feix tampered with public records.
“Defendant’s flagrantly improper and irresponsible accusations of criminal wrongdoing by a police officer are a hyperbolic diversion designed to take focus away from the surplus of evidence demonstrating probable cause,” Barnard wrote.
He claimed amendment of a citation is permissible if the change is not material or doesn’t alter the elements of the offense.
“This clarification constitutes merely a formal amendment rather than a substantive one as the defendant argues,” he wrote.
He claimed Cates and counsel should be warned of the risks of defaming Feix.
“Such conduct should be out of bounds,” he wrote.