APPEAL from the Circuit Court of Cook County; the Hon. JOHN
GANNON, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Maurice L. Godbout (hereinafter defendant) was charged with the separate offenses of improper lane usage and of driving a motor vehicle while under the influence of intoxicating liquor. *fn1 (Ill. Rev. Stat. 1973, ch. 95 1/2, pars. 11-709(a), 11-501(a).) Following a jury trial, he was found guilty of both charges and sentenced solely on the latter finding to one year conditional discharge from confinement and ordered to pay a fine of $350 and $100 in costs.
Defendant's appeal presents the following issues: (1) whether the court properly denied the motion to suppress the chemical tests; (2) whether the court properly denied the motion to suppress the confession without a hearing; (3) whether the court properly ruled on certain evidentiary matters; (4) whether the court erred in refusing to allow defendant an opportunity to qualify his expert witness; (5) whether the court improperly participated in the trial and improperly commented on the evidence; (6) whether the court properly instructed the jury; and (7) whether defendant was proved guilty beyond a reasonable doubt.
The charges against defendant arose from his operation of an automobile on March 17, 1975. Prior to trial, by motions to suppress, defendant challenged the admissibility of breathalyzer test results, of a confession, and of other evidence. His motion to produce the breathalyzer test and to produce the test ampoules which had been used in the test administered to him was denied by the trial court. At the hearing on the motion to suppress evidence, defendant testified that he was arrested by Sergeant Louis Bervid and taken to the village of Hanover Park police station; that he signed a form submitting to the breathalyzer test; and that he smoked cigarettes five or ten minutes before taking the test. The arresting officer testified on the motion that he observed defendant driving in an erratic manner; that he gave defendant Miranda warnings; that he administered the test; and that defendant did not smoke immediately prior to the test. The motion to suppress evidence was then denied.
At the trial, Officer Thomas Sidman testified that on March 17, 1975, at about 1:15 in the morning, he saw defendant driving in an erratic manner. After observing the automobile weaving across the center line and being driven onto the shoulder, Sidman signaled to Sergeant Bervid who followed defendant and also observed his driving. Defendant stopped upon a signal from Bervid. Bervid, Sidman, and another officer, C. Dexter Marks, saw defendant drop all the papers from his wallet when he exited the car in a swaying manner. Defendant then stated, "I know I have had too much to drink; I'm sorry." At the station defendant's breath was tested twice, at 2:50 a.m. and then at 3:05 a.m.; the first reading was .21 percent alcohol in the blood, the second .18 percent. Throughout the period at the station, defendant's attitude was polite and cooperative, his speech fair. Although defendant's eyes were bloodshot and he seemed to be swaying and wobbling, he performed the coin pick-up test. He staggered on the walking test, however, and had difficulty with the finger-to-nose test.
Scott Helem, defendant's roommate, testified that he had seen defendant at their residence about three hours before and also after the arrest. Helem testified further that defendant seemed normal at all times, and that defendant has an excellent reputation for sobriety.
Defendant testified that on March 16, 1975, he had two beers in a tavern at 4 p.m. and two more in a second tavern about 5:30. He then went home where he remained until 11 p.m. At that point defendant returned to the first tavern, had one more beer about 12:30 on March 17, 1975, and then went to a restaurant to eat. When he left the restaurant, it was foggy and visibility was poor. Upon defendant's stop, papers fell from his wallet because his plastic-encased driver's license stuck in the wallet. He testified further that upon his arrest his hands were cuffed behind his back and remained so until he arrived inside the station. He also denied stumbling, and driving under the influence of intoxicating liquor.
Richard W. Hall testified as an expert on behalf of the defendant on the subject of breathalyzer testing. When counsel for defendant attempted to place before the jury Hall's qualifications, the trial court stopped the questioning and announced judicial notice would be taken of Hall's qualifications. Hall testified that a breathalyzer test lacks probative value unless the machine has first been checked with a standardization test; that the sobriety of a person at the time of an earlier occurrence cannot be determined from the test; and that the test's validity is impaired if a subject smokes immediately before the test.
• 1 Defendant maintains that the court erred in denying the motion to suppress the chemical tests because the State in this case failed to produce upon request the ampoules which had been used in the breath analysis. *fn2 A motion to produce the pertinent ampoules was denied. In fact the record indicates that the said ampoules were destroyed. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194; People v. Murdock (1968), 39 Ill.2d 553, 560, 237 N.E.2d 442, cert. denied (1971), 404 U.S. 957; People v. Hoffman (1965), 32 Ill.2d 96, 99-100, 203 N.E.2d 873; People v. Nichols (1st Dist. 1975), 27 Ill. App.3d 372, 384-87, 327 N.E.2d 186; People v. Dixon (1st Dist. 1974), 19 Ill. App.3d 683, 686, 312 N.E.2d 390.) On the other hand, the State is under no duty to produce evidence for the defense where it does not exist. (People ex rel. Walker v. Pate (1973), 53 Ill.2d 485, 496-97, 292 N.E.2d 387; People v. Taylor (1965), 32 Ill.2d 165, 171-72, 204 N.E.2d 734.) The trial court here noted that the ampoules were destroyed in accordance with standard operating procedures of breathalyzer testing. See People v. Van De Rostyne (2nd Dist. 1974), 26 Ill. App.3d 1048, 320 N.E.2d 270, aff'd and remanded (1976), 63 Ill.2d 364, 349 N.E.2d 16.
Defendant, however, seeks a new interpretation of a provision in the Illinois Vehicle Code which states:
"(g) Upon the request of the person who submitted to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests must be made available to him or his attorney." (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501(g).)
In contending that this provision mandates the return of ampoules used in his breathalyzer test, defendant relies solely on a California case construing the same provision in the California Vehicle Code. (West's Cal. Ann. Vehicle Code § 13354(c).) In People v. Hitch (1974), 12 Cal.3d 641, 527 P.2d 361, 117 Cal. Rptr. 9, the California Supreme Court held on rehearing that the ampoules had been destroyed in good faith and in conformity with standard law enforcement procedures; consequently, the trial court was not in error in suppressing the tests. However, that court held that, in future breathalyzer tests, the test ampoule, its contents, and the reference ampoule customarily used in the test constitute material evidence on the driver's guilt or innocence of the charge of driving a vehicle under the influence of intoxicating liquor. The supreme court's ruling was applied prospectively only, not retroactively. Consequently, in California the ampoules must now be preserved. The dissent in that case and the majority in the earlier case, 11 Cal.3d 159, 520 P.2d 974, 113 Cal.Rptr. 158, stated that, since the destroyed evidence was necessary to accord Hitch a fair trial, the State should not be permitted to use any evidence of the breathalyzer tests.
If sufficient evidence appeared in a record for our review that preservation of test ampoules provides valuable information to both the prosecution and defense, we would consider that evidence closely. However, the record here in contrast to the record in the Hitch case does not permit a proper resolution of this interesting issue. After extensive hearings, the trial court in Hitch made detailed findings of fact, concluding that the test ampoule, its contents, the reference ampoule, and the bubbler tube used in the original test, would, if preserved, provide the kind of valuable information to which we have alluded. (People v. Hitch (1974), 12 Cal.3d 641, 645, 649-50, 527 P.2d 361, 117 Cal.Rptr. 9; 11 Cal.3d 159, 520 P.2d 974, 113 Cal.Rptr. 158, 160.) In the case at bar, however, we have little, if any, scientific evidence from which to determine what the significance would be of preserving the ampoules. (Cf. State v. Teare (1975), 133 N.J. Super. 338, 336 A.2d 496; 135 N.J. Super. 19, 342 A.2d 556.) As the next portion of our opinion indicates, we think that defendant may have been prevented from presenting us with such evidence. In any event, in view of our remanding this cause for a new trial, this subject can be more thoroughly developed, should the need arise to again review this matter.
• 2 Defendant also alleges that the trial court erred in participating in the trial of the cause, in seeking to impeach the expert witness in the jury's presence, in making improper remarks, and in commenting on the evidence. Although a trial judge may question witnesses for purposes of clarification, this must be done in a fair and impartial manner, and without showing prejudice or bias against either party, and under no circumstances should he express an opinion as to veracity, for this is the province of the jury. (People v. Tyner (1964), 30 Ill.2d 101, 104, 195 N.E.2d 675.) The trial judge should not express by word or indicate by conduct, in the jury's hearing, any opinion upon the facts, as this is the function of the jury. (People v. Sprinkle (1963), 27 Ill.2d 398, 403, 189 N.E.2d 295.) Thus, the ultimate decisions of fact and of the credibility of witnesses must be left to the jury (People v. Santucci (1962), 24 Ill.2d 93, 98, 180 N.E.2d 491); particularly in a criminal case, the judge should exercise great care to avoid making any comment likely to lead the jury to infer that his opinion is in favor of or against the defendant. (People v. Coli (1954), 2 Ill.2d 186, 189, ...