APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the Circuit Court of Kankakee County, Herman Winfield, defendant-appellant, was found guilty of driving while under the influence of intoxicating liquor and of disobeying a traffic signal. On appeal, defendant contends that the evidence was insufficient to support his conviction, and particularly that the results of breath analysis tests administered to him were improperly considered by the trial court to be the "crux" of its determination that he was guilty of driving while intoxicated.
Defendant's arrest followed an accident in which the car defendant was driving collided with a car operated by Roger Benson at an intersection controlled by a traffic signal. Both defendant and Benson stated to Officer Collier, who investigated the accident, that the other had gone through a red light. The officer issued traffic tickets to defendant for the violations charged, and required defendant to go with him to the police station. Defendant refused and in the course of resisting, defendant fell and cut his head. Defendant was then taken to a hospital for treatment of the cut and from there to the police station where he consented to breath analysis tests to determine the alcohol in his blood. The tests were administered twice, beginning 88 minutes after the accident, and the results showed defendant to have .23 percent and .26 percent alcohol in his blood.
At the trial, Officer Collier and Officer Petry testified to these facts, and in addition the arresting officer testified that, at the time of the arrest, defendant was unsteady on his feet, his eyes were glassy, his speech jerky, he had an odor of alcoholic beverage on his breath, and in the officers' opinion, defendant was under the influence of intoxicating liquor. This testimony was corroborated by Benson who stated that defendant's eyes were glassy, that he was unsteady on his feet and appeared to have a stupor about him, that he "had some difficulty in maintaining his balance on one spot," and had to keep moving around in order to maintain his balance.
Officer Petry testified that he was trained to operate the breathalyzer machine; that he holds a permit to administer such tests; that he followed the checklist of operating procedures which is approved by the Illinois Department of Public Health; and that he obtained the test results shown on the "printout" sheet introduced in evidence. He also testified that he observed defendant for 20 minutes before each test, and during that time defendant did not "eat, drink, smoke or regurgitate." The parties stipulated that the machine was checked and found to be accurate by an inspector for the Department of Public Health 2 weeks prior to and 2 weeks after the date of defendant's tests.
Defendant did not testify and called no witnesses. At the close of the trial, as the court announced its decision, the following colloquy occurred:
"DEFENSE ATTORNEY: I am asking the Court if the backbone of his opinion * * * is not the reading of the breath test? In other words, I am asking the Court, for the record, if the Court will state that they are leaning heavily on the twenty-six [.26] and twenty-three [.23] readings in their finding of guilty of Herman Winfield.
THE COURT: Yes, I am leaning on the testimony of the police officer as to his observations as well as the breath test, and taking cognizance of the fact that the state statute says that a reading of Point One 0 [.10] or above indicates a presumption of driving while under the influence of intoxicating liquor. The Court is satisfied that the defendant Herman Winfield, is guilty * * *."
DEFENSE ATTORNEY: But the record is sufficient there that you are giving a great the crux of your opinion is the breathalyzer?
Defendant argues that breath test results obtained 1 1/2 hours after arrest cannot be the crux or pivotal point on which a conviction of driving while under the influence of intoxicating liquor can stand, but at most can only be corrobative of other evidence of intoxication. Defendant has submitted a lengthy brief, challenging the statutory presumption arising from breath tests. This presumption is contained in section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat., ch. 95 1/2, § 11-501) as follows:
"(c) Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person's blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva or other bodily substance is admissible, as provided hereinafter in this paragraph (c) and the result of any such analysis shall give rise to the following presumptions:
(3) If there was at the time of such analysis 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor.
Percent by weight of alcohol in the blood shall be based upon grams of alcohol per 100 cubic centimeters of blood. Evidence based upon a chemical analysis of * * * breath * * * shall not be admitted unless such substance was procured and such analysis made with the consent of the ...