People v. Smith

43 N.E.3d 1026

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Marc SMITH, Defendant–Appellant.

No. 1–12–2306.

Appellate Court of Illinois, First District, Sixth Division.

Opinion Filed Aug. 21, 2015.

Rehearing Denied Nov. 9, 2015.

Modified Opinion Filed Nov. 13, 2015.

Michael J. Pelletier and Michael Gomez, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Jeffrey Allen, and Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 A jury convicted defendant, Marc Smith, of driving on a suspended license (625 ILCS 5/6–303(a) (West 2010)), and driving with an alcohol concentration of 0.08 or more (625 ILCS 5/11–501(a)(1) (West 2010)), and acquitted him of driving under the influence of alcohol (625 ILCS 5/11–501(a)(2) (West 2010)). On the conviction for driving on a suspended license, the trial court sentenced defendant to 24 months' conditional discharge. On the conviction of driving with an alcohol concentration of 0.08 or more, the trial court sentenced defendant to a concurrent term of 24 months' conditional discharge, as well as 360 hours of community service, a 30–hour alcohol treatment program, a victim impact panel, and $200 in fines. On appeal, defendant challenges only his conviction of driving with an alcohol concentration of 0.08 or more, arguing that the trial court erred in admitting the result of his Breathalyzer test, without which there was no evidence proving his guilt beyond a reasonable doubt. We reverse and remand for a new trial.

¶ 2 I. PRETRIAL PROCEEDINGS

¶ 3 Defendant filed a motion in limine seeking to exclude the result of the Breathalyzer test administered to him on March 19, 2010, because, based on documents in defendant's possession, the Breathalyzer machine was not properly certified as accurate. At the hearing on the motion in limine on the first day of trial, defendant argued that pursuant to the applicable administrative regulations (20 Ill. Adm.Code 1286.200 (2009) and 20 Ill. Adm.Code 1286.230 (2011) ), the State needed to prove, as a foundation for admission, that the Breathalyzer machine had been certified as accurate within 62 days before his test. The police station's logbook indicated, however, that the Breathalyzer machine was certified as accurate about 120 days prior to defendant's test.

¶ 4 The State claimed that the Breathalyzer machine had been electronically certified as accurate within the relevant time frame, as indicated in a letter and report (referred to collectively herein as the “electronic certification”) from the Illinois State Police, dated March 2, 2011, about 13 months before trial. The letter, signed by the “Keeper of Records” of the Alcohol and Substance Testing Section of the Illinois State Police Academy, and notarized by a notary public, stated that it was made in response to a subpoena duces tecum and indicated that the Breathalyzer machine had been tested for accuracy on March 1, 2010, and April 1, 2010. The report provided numerical data, but did not provide any interpretation of that data and did not state whether or not the Breathalyzer machine passed the accuracy tests.

¶ 5 Defendant argued that the State had never tendered the electronic certification during pretrial discovery, though the State apparently had the document in its possession for over a year. Defendant argued he had based his defense on the State's apparent inability to provide the necessary foundation for admission of the Breathalyzer test result, and that the court should exclude the electronic certification and, by extension, the Breathalyzer test result based on the State's “egregious” delay and discovery violation.

¶ 6 The State claimed it had tendered the electronic certification to the defense at an earlier pretrial hearing. The trial court initially noted that it was unaware of such a tender because a different judge presided over the earlier pretrial hearing and no indication was made in the record that the State had tendered the electronic certification to the defense on that date.

¶ 7 The trial court subsequently noted, though, that the regular practice was for the court to receive the electronic certification in a manila envelope, and for the court to then hand the electronic certification to the State in the presence of defendant. Accordingly, as defendant likely would have been made aware of the electronic certification on the date it was presented to the State in open court, there was no discovery violation and, therefore, the trial court denied defendant's motion in limine to exclude the Breathalyzer test result.

¶ 8 The State later asked the court, outside the presence of the jury, to rule on the admissibility of the electronic certification of the Breathalyzer machine. Over defense objection, the trial court ruled that the electronic certification was admissible as a self-authenticating business record. See Ill. R. Evid. 803(6) (eff. Apr. 26, 2012); R. 902(11) (eff. Jan. 1, 2011).

¶ 9 II. TRIAL

¶ 10 At trial, Howard Phillips testified that at approximately 4 p.m. on March 19, 2010, he was driving his Chrysler west on 79th Street and stopped at a red light at 79th Street and Kedzie Avenue. Four vehicles were ahead of him at the stoplight. He heard a vehicle approaching behind him, looked in the rearview mirror, observed defendant driving the vehicle, and thought the vehicle was moving too fast and might hit him.

¶ 11 Defendant's vehicle struck Howard's Chrysler, causing the Chrysler to strike a light pole. Both of Howard's knees were broken as a result of the collision. Howard was taken to the hospital for surgery on his knees.

¶ 12 Officer Rodriguez testified he received a call at about 4 p.m. on March 19, 2010, to respond to a traffic crash near 79th Street and Kedzie Avenue. When he arrived at the scene, Officer Rodriguez saw a Volvo facing east in the westbound lane closest to the median, a Chrysler was wrapped around a light pole, and a Volkswagen was on the other side of the median with a cracked windshield.

¶ 13 Defendant was at the scene, being treated inside an ambulance. Defendant was asked if he wanted to go to the hospital, and he said no. The paramedic told Officer Rodriguez that defendant was a driver of one of the vehicles involved in the accident. Officer Rodriguez and defendant then walked toward the officer's car. Officer Rodriguez noticed that defendant's eyes were red and bloodshot. Defendant told the officer his name, and Officer Rodriguez entered the name in his portable data terminal and ascertained that defendant's driver's license was suspended. Officer Rodriguez detained defendant inside the police car and asked him about the accident. Defendant was hesitant to speak, but he did state that he had been traveling westbound on 79th Street.

¶ 14 Inside the police car, Officer Rodriguez smelled the odor of alcohol on defendant's breath and noticed his speech was slurred. Based on his training and experience with the Chicago police department, Officer Rodriguez opined that defendant was under the influence of alcohol.

¶ 15 Officer Barber testified that shortly after 4 p.m. on March 19, 2010, he went to the scene of a traffic accident at 79th Street and Kedzie Avenue. Officer Barber saw a green Volvo facing east in the westbound lane, and a Chrysler wrapped around a light pole. Officer Barber learned that defendant was the driver of the Volvo.

¶ 16 Officer Barber spoke with defendant at the scene and observed that defendant's breath smelled like an “alcoholic beverage,” his eyes were bloodshot, and his speech was a little slurred. Officer Barber learned from Officer Rodriguez that defendant's license was suspended, and he took defendant to the police station, where he administered three field sobriety tests. Defendant failed all three tests. Officer Barber formed the opinion that defendant was under the influence of alcohol.

¶ 17 Officer Barber gave defendant a Breathalyzer test. Officer Barber previously had been trained to administer the Breathalyzer test, he was certified as a “breath operator” and was re-certified every 3 years for the past 15 years. When asked whether he knew how the Breathalyzer machine works, Officer Barber explained he knew how to administer the test and that he prepared the machine by hitting “enter” and inputting the test taker's name, date of birth, driver's license number and ticket number along with the officer's name, county, and badge number. Officer Barber testified the machine then self-calibrates and reads 0.000 to indicate it is calibrated and working properly at the time of the test.

¶ 18 Officer Barber testified the Breathalyzer machine was regularly tested for accuracy by the Illinois State Police and had been tested on March 1, 2010 (prior to defendant's test), and April 1, 2010 (after defendant's test). Officer Barber did not testify to the results of those accuracy tests.

¶ 19 Officer Barber gave defendant the Breathalyzer test on March 19, 2010, approximately two hours after the car accident. Prior to testing him, Officer Barber observed defendant for 20 minutes to ensure he had not eaten or drank anything which would taint the test. After observing defendant for the requisite 20 minutes, Officer Barber prepared the Breathalyzer machine by inputting the relevant information, after which the machine self-calibrated and read 0.00. Officer Barber gave defendant a tube attached to the Breathalyzer machine and told him to blow into it for four or five seconds. Defendant did so, after which the Breathalyzer machine showed a result on the screen, and printed out a “breath ticket” which revealed defendant's blood alcohol concentration was 0.099, which was over the legal limit of 0.08. The trial court admitted the breath ticket into evidence.

¶ 20 On cross-examination, Officer Barber testified he does not know how the...