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People v. Clifton

APRIL 17, 1973.




APPEAL from the Circuit Court of Rock Island County; the Hon. JOHN R. ERHART, Judge, presiding.


Rehearing denied May 24, 1973.

The defendant Ralph D. Clifton was issued a Traffic Ticket and Complaint which charged him with "Driving While Under Influence of Liquor" in violation of Sec. 11-501 of the Illinois Vehicle Code. Defendant waived jury, was found guilty and was fined $100 plus costs by the Circuit Court of Rock Island County.

• 1 Defendant first contends that the complaint fails to charge an offense in that the statutory word "intoxicating" was omitted. This precise point arose in People v. Haney, 95 Ill. App.2d 1, where after a thorough discussion the court held that when modified by the phrase, "under the influence of", the word "liquor" must be synonymous with "intoxicating liquor" as that term is used in the statute, and that the complaint sufficiently charged defendant with the conduct prescribed by the statute. We agree.

At the trial held Oct. 29, 1971 a State Trooper testified that on the evening of Aug. 8, 1971 defendant was initially observed driving a motor vehicle which was stopped in front of a tavern in the middle of a four lane roadway, blocking two lanes of traffic. Defendant then attempted to drive his vehicle over the center median. After straddling the median the defendant proceeded down the roadway, weaving across the center lane, causing approaching traffic to take evasive action. After stopping defendant the officer noticed defendant's physical appearance and behavior. There was a strong smell of alcohol, mumbled speech and poor coordination including a stumbling, staggering walk which required the assistance of the officer when defendant was placed in the squad car.

Another state policeman, Cpl. W.G. Waterhouse, testified that he possessed a valid, certified permit authorizing him to administer breathalyzer tests, that he had received such permit after successfully completing a 40 hour course in the instruction of the use of the breathalyzer and that the course was conducted under the auspices of the State Department of Public Health in cooperation with the State Highway Police. The officer further testified that his permit was valid on Aug. 8, 1971 and that he administered a breathalyzer test to the defendant after the defendant had given his consent to such a test. He testified as to each step in the breathalyzer operational check list which was followed before the test was given. The result of the test indicated .21 percent blood alcohol. Defense counsel objected to the admission into evidence of the test on the ground that there was no foundation proof that the test had been performed in accordance with uniform standards of the Department of Public Health, as required by the statute. On cross-examination Officer Waterhouse testified that he had heard of the "uniform standards" but did not know what they were.

The defendant testified that he had received a head injury and was dizzy and these facts accounted for the erratic driving.

Section 11-501(d) of the Illinois Vehicle Code then provided:

"(d) Chemical analysis of the person's blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health, in cooperation with the Superintendent of State Police, and by an individual possessing a valid permit issued by that Department for this purpose * * *."

Defendant's argument here is that since there was no testimony concerning the actual "uniform standards" how could the trial court be sure that the test was performed in accordance with them.

• 2 The Department of Public Health in cooperation with the Superintendent of State Highway Police did in fact adopt standards effective on and after Sept. 1, 1970. The standards were not in possession of either attorney at the time of trial and no attempt was made to ask that judicial notice be taken. A party desiring to have a fact judicially noticed should bring the matter to the attention of the court, on the record. If he does not, the court of review will not ordinarily judicially notice such fact. People ex rel. McCallister v. Keokuk & Hamilton Bridge Co., 287 Ill. 246.

• 3-5 Evidence of the breathalyzer test was therefore improperly admitted. However, this case was tried before the court without a jury and it is presumed that the judge considered only competent evidence. (People v. Frenchwood, 28 Ill.2d 139, 142.) Defendant concedes, "that sufficient testimony was presented by the State, in addition to the breathalyzer test, from which defendant acknowledges a trier of fact could have found the defendant guilty even if the breathalyzer report had been excluded". We are of the opinion that the admission in evidence of the breathalyzer although erroneous, was not of such a prejudicial nature as to require reversal of the judgment of conviction.

The judgment of the Circuit Court of Rock Island County is ...

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