People v. Cielak

2016 IL App (2d) 150944

68 N.E.3d 902

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Kurt CIELAK, Defendant-Appellant.

No. 2-15-0944

Appellate Court of Illinois, Second District.

Opinion filed December 7, 2016

Randy K. Johnson, of Law Office of Randy K. Johnson, of West Dundee, and J. Brick Van Der Snick, of Van Der Snick Law Firm, of St. Charles, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Kathryn E. Kohls, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Defendant, Kurt Cielak, was ticketed for driving while under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2014)) and transported to the East Dundee police department. While there, he was given the statutory warning to motorists and was asked to complete a Breathalyzer test 19 minutes later. Defendant complied, and the results of the test revealed that his breath-alcohol concentration was over the legal limit. Because of that, defendant's driving privileges were summarily suspended. Defendant petitioned to rescind that suspension, arguing, among other things, that the Breathalyzer test was administered before the arresting officer observed him for 20 minutes (see 20 Ill. Adm. Code 1286.310(a)(1) (2004) ). The trial court denied the petition, defendant moved to reconsider, the court denied that motion, and this timely appeal followed. On appeal, defendant argues that (1) the State failed to substantially comply with the 20-minute continuous observation requirement and (2) he was denied due process when the State failed to disclose to him before the hearing that the arresting officer's testimony that he began the 20-minute observation period before he read the warning to defendant was inconsistent with his police report. For the reasons that follow, we affirm.

¶ 2 At the hearing on the petition to rescind, Officer John Haase testified that, on June 7, 2015, at around 12:30 a.m., he arrested defendant for DUI and then took him to the police department. At around 12:43 a.m., he read the warning to defendant, which took about two or three minutes. Prior to reading the warning, Officer Haase began observing defendant for the mandated 20 minutes. Although Officer Haase's police report was not admitted at the hearing, Officer Haase testified that, in the last paragraph of his report, he indicated that " ‘[a]fter the matter of a 20[-]minute observation period, at 1:02 [he] administered the test.’ "

¶ 3 Officer Haase's testimony on cross-examination was somewhat conflicting. For example, after Officer Haase confirmed that he began the 20-minute observation period before he read the warning to defendant, he stated that he "probably" started the 20-minute observation period within 15 minutes of bringing defendant to the police department. He testified that he began observing defendant 10 minutes before the warning and that he observed defendant for a total of 29 minutes at the station before giving defendant the Breathalyzer test. During the observation period, defendant did not "vomit, throw-up or cough or anything like that."

¶ 4 The State moved for a directed finding. The trial court granted that motion, noting that it was unaware of any requirement that prohibited the officer from starting the 20-minute observation period before reading the warning to defendant. It also found that Officer Haase was observing defendant while he was filling out paperwork before he read the warning.

¶ 5 Thereafter, defendant filed a motion to reconsider, attaching to his motion a "DUI Checklist" given to police officers. On this form, reading the warning is listed as number 9, and the 20-minute observation period is listed as number 10. The trial court denied the motion to reconsider, finding that the officer complied with the 20-minute observation period. Specifically, the court relied on Officer Haase's testimony that he observed defendant both before and after he read the warning to motorists. The court again observed that it was not aware of any law that provided that the 20-minute observation period commences only after the warning is read to the defendant.

¶ 6 At issue is whether the petition to rescind the summary suspension of defendant's driving privileges should have been granted. A hearing on a petition to rescind a summary suspension of driving privileges is a civil proceeding. People v. Pollitt , 2011 IL App (2d) 091247, ¶ 13, 356 Ill.Dec. 14, 960 N.E.2d 1137. On appeal, we apply the same bifurcated standard of review that applies to motions to suppress. See People v. Wear , 229 Ill.2d 545, 560–562, 323 Ill.Dec. 359, 893 N.E.2d 631 (2008). That is, we defer to the trial court's factual findings unless they are against the manifest weight of the evidence, and we review de novo the trial court's determination of whether the petition to rescind should be granted. Id. at 561–62, 323 Ill.Dec. 359, 893 N.E.2d 631.

¶ 7 Because the trial court granted a directed finding, defendant asserts that the trial court erred in finding that he did not present a prima facie case for rescission. When a defendant challenges the results of a Breathalyzer test, as in this case, he must make a prima facie case that the test results are unreliable. People v. Aleliunaite , 379 Ill.App.3d 975, 978, 319 Ill.Dec. 192, 885 N.E.2d 463 (2008). Prima facie evidence is equivalent to the amount of evidence required under the preponderance-of-the-evidence standard. People v. Bonutti , 338 Ill.App.3d 333, 342, 273 Ill.Dec. 22, 788 N.E.2d 331 (2003). To attack breath-test results, the defendant must show that (1) the breath test was not properly administered, (2) the results were not accurate and trustworthy, or (3) the regulations regarding such testing were violated. People v. Barwig , 334 Ill.App.3d 738, 744, 268 Ill.Dec. 364, 778 N.E.2d 350 (2002). If the defendant meets this burden, the burden then shifts to the State to present evidence justifying the suspension. Pollitt , 2011 IL App (2d) 091247, ¶ 13, 356 Ill.Dec. 14, 960 N.E.2d 1137. If the defendant fails to establish a prima facie case, the State is entitled to a directed finding in its favor. Aleliunaite , 379 Ill.App.3d at 978, 319 Ill.Dec. 192, 885 N.E.2d 463. We review under the manifest-weight-of-the-evidence standard whether a defendant has presented a prima facie case for rescission. People v. Paige , 385 Ill.App.3d 486, 489, 324 Ill.Dec. 803, 896 N.E.2d 879 (2008). For a decision to be against the manifest weight of the evidence, the opposite conclusion must be clearly evident. Barwig , 334 Ill.App.3d at 743, 268 Ill.Dec. 364, 778 N.E.2d 350.

¶ 8 The first issue defendant raises is whether the regulations concerning Breathalyzer testing were violated. Specifically, defendant contends that the officer did not substantially comply with the 20-minute observation period as required by section 1286.310 of the Illinois Administrative Code (20 Ill. Adm. Code 1286.310 (2004) ). Section 1286.310 provides:

"The following procedures shall be used to obtain a breath sample to determine a subject's [breath-alcohol concentration] with an approved evidentiary instrument:

a) Prior to obtaining a breath analysis reading from a subject, the [breath-analysis operator] or another agency employee shall continuously observe the subject for at least 20 minutes.

1) During the 20[-]minute observation period the subject shall be deprived of alcohol and foreign substances and shall not have regurgitated or vomited.

2) If the subject vomits during the observation (deprivation) period, the process shall be started over by having the individual rinse the oral cavity with water.

3) If the individual continues to vomit, alternate testing shall be considered."

¶ 9 Defendant argues that, given Officer Haase's equivocal testimony concerning when the 20-minute observation period began, the court should have discredited his statement that he administered the breath test only after observing defendant for 20 minutes. He further contends that Officer Haase was impeached by his police report, which did not contain an entry for when the observation period began. We disagree.

¶ 10 "Where testimonial evidence is conflicting, it is within the province of the trier of fact to determine credibility." People v. Zator , 209 Ill.App.3d 322, 328, 154 Ill.Dec. 162, 568 N.E.2d 162 (1991). More specifically, the trial court is charged with evaluating how any inconsistencies in a witness's testimony affect the credibility of the whole testimony. See People v. Cunningham , 212 Ill.2d 274, 283, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004). The court's credibility determinations "should not be disturbed on review unless such findings are palpably against the manifest weight of the evidence." Zator , 209 Ill.App.3d at 328, 154 Ill.Dec. 162, 568 N.E.2d 162.

¶ 11 Here, it is undisputed that Officer Haase began reading the warning to motorists at 12:43 a.m. and administered the breath test at 1:02 a.m. As to the sequence of events, he testified that he arrested defendant at 12:30 a.m., transported him to the police station, and began to fill out paperwork, which took approximately 10 minutes. Officer Haase further testified that he began the 20-minute observation period 10 minutes before he read the warning at 12:43 a.m., while he was filling out the paperwork; he also acknowledged that he did not explicitly make an entry in the police report as to when the observation period commenced.¹ On cross-examination, however, he testified that he began the observation period "probably within" 15 minutes of arriving at the police station. Officer Haase testified that he ultimately observed defendant for 29 minutes before administering the breath test.

¶ 12 Based on the evidence, we cannot conclude that the court's finding that defendant failed to make a prima facie case for rescission was against the manifest weight of the evidence. Although...