People v. Crump

2018 IL App (3d) 160124

118 N.E.3d 608

427 Ill.Dec. 407

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

v.Xavier D. CRUMP, Defendant-Appellant.

Appeal No. 3-16-0124

Appellate Court of Illinois, Third District.

Rule 23 order filed September 28, 2018

Motion to publish allowed October 17, 2018

Opinion filed October 17, 2018

James E. Chadd, Peter A. Carusona, and James Wozniak, of State Appellate Defender’s Office, of Ottawa, for appellant.

James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Mark A. Austill, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 Defendant, Xavier D. Crump, appeals his conviction for driving with an alcohol concentration of 0.08 or higher ( 625 ILCS 5/11-501(a)(1) (West 2014) ). He asserts that the trial court erred in admitting the results of his Breathalyzer test because (1) the State failed to lay the proper foundation to admit certain exhibits as business records and (2) regardless of whether the records were properly admitted, they were insufficient to certify the proper functioning of the Breathalyzer test. We affirm.

¶ 2 FACTS

¶ 3 In May 2015, the State charged defendant with driving under the influence of alcohol (id. § 11-501(a)(2) ), driving with an alcohol concentration of 0.08 or more (id. § 11-501(a)(1) ), and improper parking on a highway (id. § 11-1303).

¶ 4 The State presented the following evidence at defendant's November 2015 bench trial.

¶ 5 Illinois State Trooper Brian Frank testified as follows. While on patrol at approximately 7:50 a.m. on May 10, 2015, he observed a vehicle parked along the right shoulder of the I-55 southbound ramp. He approached the vehicle and saw a man, who he identified as defendant, asleep in the driver's seat. He could not recall whether the car was running but the keys were in the ignition. Upon waking, defendant's eyes appeared "red, glassy and bloodshot" and Frank smelled "a strong odor of an alcoholic beverage emitting from his breath." Defendant stated that he drank two beers and two mixed drinks at a bar the night before.

¶ 6 Trooper Frank asked defendant to perform standard field sobriety tests, including the horizontal gaze nystagmus, the "walk and turn" and the "one leg stand." Defendant exhibited signs of intoxication during each test. As a result, Frank arrested defendant and transported him to the Illinois State Police headquarters. After Frank observed defendant for 20 minutes at police headquarters, defendant submitted to an "Intoxilizer" Breathalyzer test. Frank is certified in administering the Breathalyzer test. The results of that test indicated defendant had a blood alcohol content of 0.131. Frank then issued defendant citations for driving under the influence of alcohol, driving with an alcohol concentration of 0.08 or more, and improper parking on a highway.

¶ 7 As proof of defendant's intoxication, the trial court, over defense counsel's objections, admitted a number of the State's exhibits under the business-record exception to the hearsay rule. Specifically, State's exhibit No. 3 included a notarized "verified certification" letter, signed by the "Keeper of Records" of the Alcohol and Substance Testing Section of the Illinois State Police Academy, indicating that accuracy checks were conducted on the Intox EC/IR-II Breathalyzer machine at issue on May 1 and June 5, 2015, and its corresponding attachments (electronic certification). The attachments included printouts of an "Intox EC/IR-II Scheduled Certification" that indicated a test date of May 1, 2015, and an "Intox EC/IR-11 Certification check" that indicated a test date of June 5, 2015, both of which contained the following notations: "System Check: Passed" and "Test Status: Success." State's exhibit No. 4 was an "Intox EC/IR-II Subject Test" dated May 10, 2015, indicating Trooper Frank administered the test to defendant, that defendant blew a .13 (the third decimal digit is blacked out), and containing "System Check: Passed" and "Test Status: Success" notations. Trooper Frank identified exhibit No. 4 as a printout of defendant's Breathalyzer test created in the regular course of business. State's exhibit No. 5 was the breath analysis instrument logbook from the State Police headquarters showing defendant's test results from the Breathalyzer machine as .131. It also contained a June 5, 2015, entry with a "certified accurate" notation by a Trooper D. Sheldon. Trooper Frank identified exhibit No. 5 as a logbook for the Intox Breathalyzer machine kept in the regular course of business.

¶ 8 At the conclusion of the State's evidence, defense counsel moved for a directed verdict, again, asserting that the documents related to the Breathalyzer machine lacked proper foundation. The trial court denied the motion. Following arguments, the court found defendant guilty of driving with an alcohol concentration of 0.08 or more and improper parking but not guilty of driving under the influence of alcohol. The court recognized its "somewhat incongruous conclusions," especially since the Breathalyzer results supported a finding of guilt on both charges, but the court opined, "While I certainly see evidence of impairment, I also see considerable evidence of non impairment that would, in regards to driving under the influence (a)(2) charge, would cause me pause." In particular, the court noted that defendant exhibited "reasonable balance and physical acuity" during the field sobriety tests such that the court "could not draw a great deal of overwhelming weight to any evidence of impairment from the field sobriety tests."

¶ 9 Defense counsel timely filed a motion to reconsider the verdict or, alternatively, for a new trial. Counsel, again, asserted that the trial court erred in admitting the exhibits relating to the Breathalyzer machine because the State failed to lay the proper foundation. The court denied the motion. Thereafter, it sentenced defendant to 24 months' court supervision, fines, court costs, and 60 hours of community service.

¶ 10 Defendant appeals.

¶ 11 ANALYSIS

¶ 12 Defendant asserts that the trial court erred in admitting the results of his Breathalyzer test. Although defendant specifically delineates only one issue on appeal, his argument section presents two issues. Specifically, he argues—in reverse order—that the results of his Breathalyzer test should not have been admitted because (1) the State failed to lay the proper foundation to admit the electronic certification as a business record and (2) regardless of whether the electronic certification records were properly admitted business records, they were "insufficient to certify the proper functioning of the breathalyzer machine."

¶ 13 A. Standard of Review

¶ 14 At the outset, the parties disagree on the appropriate standard of review. Defendant asserts that the issue of whether the State laid a proper foundation to introduce the results of his Breathalyzer test is a legal question subject to de novo review. In support, he cites State v. Eagletail , 2014 IL App (1st) 130252, ¶ 19, 388 Ill.Dec. 315, 24 N.E.3d 223, and People v. Claudio , 371 Ill. App. 3d 1067, 1069, 309 Ill.Dec. 713, 864 N.E.2d 954 (2007), both of which held that a de novo standard of review applies in determining whether the State met the foundational requirements for the introduction of Breathalyzer tests results as set forth in People v. Orth , 124 Ill. 2d 326, 125 Ill.Dec. 182, 530 N.E.2d 210 (1988). In contrast, the State cites People v. Torruella , 2015 IL App (2d) 141001, ¶ 24, 395 Ill.Dec. 416, 38 N.E.3d 602, in support of its contention that an abuse of discretion standard applies. In Torruella , the court found the abuse of discretion standard appropriate for determining whether the State satisfied the foundational requirements of the business records exception to the hearsay rule. Id.

¶ 15 Because we are actually presented with two separate issues here, both standards of review are applicable. First, we will determine whether the trial court abused its discretion in admitting the electronic certification records proffered by the State. A trial court abuses its discretion only when its ruling is " ‘arbitrary, fanciful, or unreasonable’ or ‘no reasonable [person] would take the view adopted by the trial court.’ " State v. Eagletail , 2014 IL App (1st) 130252, ¶ 26, 388 Ill.Dec. 315, 24 N.E.3d 223 (quoting People v. Donoho , 204 Ill. 2d 159, 182, 273 Ill.Dec. 116, 788 N.E.2d 707 (2003) ). If we find the records were properly admitted, we will then consider de novo whether they establish that the Breathalyzer machine at issue "was tested for accuracy and working properly on the date the test was administered to the [d]efendant" such that the results of defendant's Breathalyzer test were properly considered.

¶ 16 B. Admissibility of the "Certification Records"

¶ 17 Defendant maintains that the State failed to lay a proper foundation for the admission of the electronic certification records. The State disagrees, asserting that the records were self-authenticating business documents under Illinois Rules of Evidence 902 and 803. Notably, defendant does not argue that the State failed to lay the proper foundation to admit the printout of his test results or the logbook documenting his result. Thus we consider only the propriety of admitting the electronic certification records, i.e. , State's exhibit No. 3.

¶ 18 Illinois Rule of Evidence 902 ( Ill. R. Evid. 902 (eff. Jan. 1, 2011) ), provides that certain evidence is self-authenticating and, as such, extrinsic evidence of its authenticity is not required where the document constitutes, in relevant part:

"(1) Domestic Public Documents Under Seal . A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or

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