APPEAL from the Circuit Court of Champaign County; the Hon.
ARTHUR D. NICOL, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a jury verdict finding her guilty of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a)). She contends the trial court erred (1) in denying her motion to suppress the results of a breath alcohol test, (2) in denying her motion to suppress alleged admissions of defendant, (3) in denying her motion for a mistrial based on the contention that the prosecutor did not follow up properly after laying the foundation for impeachment by prior inconsistent statement, and (4) in denying her motion to dismiss the driving-under-the-influence charge on double jeopardy grounds. She also contends reversible errors were committed in the State's closing argument. We find no reversible error.
On December 22, 1979, the defendant was involved in an automobile collision on Springfield Avenue in Champaign, Illinois. The defendant was given a traffic ticket for driving while under the influence of intoxicating liquor and a ticket for running a red light. A trial by jury was had on March 17, 1980. After two witnesses testified that the defendant ran the red light, the defendant withdrew her plea of not guilty to running a red light and entered a plea of guilty to that count. Subsequently, defendant was convicted on a charge of driving while under the influence of intoxicating liquor. Defendant was sentenced on April 8, 1980, to 12 months of probation in addition to a fine of $100 plus costs and 30 hours of public service. A petition to reconsider was filed May 2, 1980, and denied May 6, 1980. Notice of appeal was filed May 6, 1980.
Shortly after the defendant's arrest, she submitted to a breath alcohol test. There were two tests administered, each registering .24% by weight of alcohol in the defendant's blood. Prior to the commencement of the trial, the defendant filed a motion to produce the test ampoules used in the performance of the breath test. *fn1 The prosecution admitted that the ampoules were not available since they had been destroyed in accordance with standard procedure. Defendant then filed a motion to suppress the results of the breath tests based on the destruction of evidence that could have been beneficial to the defendant. This motion was denied.
Defendant argues that Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, which held that suppression by the prosecution of material evidence favorable to the accused denies defendant due process of law, demands an interpretation of section 11-501(g) of the Illinois Vehicle Code which would require the suppression of the results of the breathalyzer tests in the instant case. Section 11-501(g) provides:
"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. 1979, ch. 95 1/2, par. 11-501(g).
People v. Hitch (1974), 12 Cal.3d 641, 527 P.2d 361, 117 Cal.Rptr. 9, and Lauderdale v. State (Alas. 1976), 548 P.2d 376, are cited as analogous cases in which suppression of the test results was found to be the proper remedy where test ampoules were not available. Defendant further quotes findings made in Van Halen v. Municipal Court (1969), 3 Cal.App.3d 233, 83 Cal.Rptr. 140, to show that the ampoules, if preserved, would be a source of potentially exculpatory evidence.
This same issue was raised in People v. Godbout (1976), 42 Ill. App.3d 1001, 356 N.E.2d 865. That court concluded it could not determine if due process had been violated there without evidence in the record regarding the feasibility of preserving the ampoules and the potential for obtaining exculpatory evidence from preserved ampoules. Similarly, since no such evidence was offered at trial in this case, we cannot determine if this particular defendant was denied due process or if procedures in Illinois are generally violative of due process in cases of this type.
While several States have found due process rights violated by the admission of breathalyzer test results where the ampoules were unavailable to the defense due to destruction by the State, other States have found no violation. The results reflect differing opinions on whether such evidence would be material (compare State v. Canaday (1978), 90 Wn.2d 808, 585 P.2d 1185, with State v. Michener (1976), 25 Ore. App. 523, 550 P.2d 449), and whether the ampoules could produce evidence favorable to the accused. (Compare State v. Teare (1975), 135 N.J. Super. 19, 342 A.2d 556, and State v. Shutt (1976), 116 N.H. 495, 363 A.2d 406, with Hitch; Lauderdale; Garcia v. District Court (1979), 197 Colo. 38, 589 P.2d 924; Scales v. City Court (1979), 122 Ariz. 231, 594 P.2d 97, and People v. Richter (Dist. Ct. 1979), 102 Misc.2d 285, 423 N.Y.S. 2d 610.) The scientific evidence produced at trial to determine if ampoules could be preserved and what information could be obtained from preserved ampoules also varies. This variance may be due in some instances to differing types of ampoules or procedures used in breathalyzer tests in the various States. See Shutt.
In the present case, no evidence was offered which would enable the trial court to make findings and to determine if due process was violated. Therefore, we have no findings to review. Furthermore, due to the variances reflected in opinions from other jurisdictions, taking judicial notice of such opinions would be futile in the attempt to resolve this issue in Illinois. The one consistent factor in all cases which have considered defendant's due process contention is that no case has found a due process violation without evidence and findings at the trial level regarding the feasibility of preserving the ampoules and the potential usefulness of preserved ampoules to the defense. As in Godbout, where the same argument was made, we cannot answer defendant's contention without such evidence.
Defendant's second contention is that the court should have suppressed certain statements allegedly made to the officer who issued the traffic ticket. Prior to trial, defendant filed a motion to suppress these alleged admissions based upon the failure to give her the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. At the hearing on the motion to suppress, Officer Schell testified that as he was explaining and reading a form requesting defendant to submit to a breath analysis, she three times volunteered the information that she was drunk: "I'm drunk, I will admit that"; "Yes, I know I'm drunk, I've been at a party all night"; "I know I'm thoroughly drunk." Officer Schell stated at the motion to suppress hearing that none of defendant's statements was in response to any questions that he had asked her nor did he believe that he had made any statements prior to the defendant's statements which might have elicited such responses. Defendant testified at the suppression hearing that questions were asked of her prior to the time of the Miranda warnings and that she could not remember for sure whether she had volunteered the alleged admissions.
Approximately an hour after these statements were made, the Miranda warnings were given and Officer Schell asked questions from the alcohol influence report form. There was some confusion as to whether the warnings were given before this questioning was commenced. The court denied the motion, finding that whether the Miranda warnings were given before the latter questioning commenced "seems hardly significant in relationship to" the three statements given an hour earlier.
Miranda is cited by defendant for the proposition that the warnings must be given prior to in-custody questioning. However, in Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L.Ed.2d 297, 308, 100 S.Ct. 1682, 1689-90, the Supreme Court defined the type of interrogation to which Miranda was addressed. "[T]he term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." The Supreme Court noted that the latter portion of the definition focused on the suspect's perceptions rather than the intent of the police.
• 1 In the present case it is not clear that there was questioning of any kind by Officer Schell at the time defendant made her admissions. The form requesting submission to a breath analysis test which Officer Schell read to defendant reveals nothing which would elicit the responses she gave. Whatever questions there may have been, the record supports the trial judge's denial of the motion since there are no indications of words or actions reasonably likely to elicit an incriminating ...