Appeal from the Circuit Court of Livingston County; the Hon.
William T. Caisley, Judge, presiding.
PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Blood alcohol concentration of .11%.
Guilty — one year probation.
Kappas was tried to a jury on charges of improper lane usage, bribery, driving while license suspended, illegal transportation of alcohol, driving under the influence of alcohol, and driving while his blood alcohol concentration was at or in excess of .10%.
He was found not guilty of improper lane usage, bribery, and driving under the influence of alcohol, but guilty of driving while his license was suspended (90 days), illegal transportation of alcohol ($100 fine), and driving while his blood alcohol concentration was at or in excess of .10% (one year probation).
Kappas appeals his conviction of driving while his blood alcohol concentration was at or in excess of .10%.
On the evening of November 29, 1982, Kappas was stopped by Pontiac, Illinois, Police Officer Ores. The officer had observed the car driven by Kappas swerving from lane to lane as it approached an entry ramp onto Interstate 55. Prior to stopping defendant, Ores called for backup help. Illinois State Trooper Case and Pontaic Police Officer Bernardini responded to the call and all three were present when the stop was made. Officer Ores approached the defendant's car and detected the odor of alcohol. The defendant got out of his car and walked to the shoulder of the interstate where he performed various field sobriety tests. During the tests the defendant almost fell over backwards. Trooper Case found an open whiskey bottle and two open beer containers in the car. Officer Ores placed the defendant under arrest for driving under the influence of alcohol and asked the defendant to take a breathalyzer test which would normally be done at the county jail. At this point Trooper Case said he was a qualified breathalyzer operator and was willing to administer the test at State police headquarters where there was a machine.
Kappas was taken to State police headquarters, arriving approximately 10 minutes after his arrest. At headquarters, three more physical tests were administered. He demonstrated impaired ability in the performance of all three tests. In Officer Ores' opinion, the defendant was intoxicated and unfit to drive.
A breathalyzer test was then administered by Trooper Case. Case plugged the machine in at 9:45 p.m. Case ran a test on the ambient air which registered .000% for alcohol. The defendant was tested at 10:06 p.m. The test results showed Kappas' blood alcohol percentage to be .11%.
The machine used to test Kappas had been inspected 10 days before. The test consisted of heating a 10% alcohol solution in order to force evaporation. Two readings were then taken. The first reading was .09% alcohol, the second reading .10% alcohol. Such results were within normal machine tolerances which are plus or minus .01% accuracy.
Kenneth Kurtz, a maintenance and certification officer of the Illinois State Police, testified that the machine measures blood alcohol at the time of testing and does not take into account variables such as height, weight, time or type of alcohol ingested. He further testified that there is no way to judge anyone's blood alcohol at any time prior to or after the actual administration of the test based solely on test results.
Kappas took the stand in his own behalf. He admitted drinking three beers but claimed that his girlfriend had left the open beer in his car. He denied ever crossing any traffic lines. He had no knowledge about where the whiskey bottle came from. He had been drunk on previous occasions ...