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02/02/87 the People of the State of v. Jerry Orth

February 2, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JERRY ORTH, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

506 N.E.2d 960, 154 Ill. App. 3d 144, 107 Ill. Dec. 69 1987.IL.102

Appeal from the Circuit Court of Henderson County; the Hon. Lewis D. Murphy, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. HEIPLE and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

This is an appeal from the judgment of the circuit court of Henderson County granting defendant's motion to rescind the statutory summary suspension of his driver's license. The State contends that sufficient evidence existed to uphold the statutory summary suspension and that the trial court erroneously rescinded the suspension.

On January 12, 1986, Officer Myers arrested the defendant, Jerry Orth, for driving under the influence and gave him the requisite statutory warnings. After the officer transported Orth to the Henderson County jail, he again read Orth the warnings and gave him a copy of the paperwork. Orth then consented to a breathalyzer test. An Illinois State trooper administered the test, which disclosed an alcohol concentration of 0.12. Based upon that result, Orth was notified of the statutory summary suspension of his driver's license. Orth filed a motion to rescind the suspension, and a hearing was conducted.

During the course of the hearing, the court admitted the officer's report, the notice of warning to the motorist, and the other papers filed by the officer. However, the court reserved ruling on whether it would admit the breathalyzer test record. After the officer's testimony was received, the court ruled that the officer's report would be admitted to the extent that it showed that Officer Myers had observed the test but the report could not be used to demonstrate the truth of the results or the accuracy of the machine. No evidence was admitted as to the trooper's certification to conduct such a test or as to the accuracy of the machine.

In his motion to rescind the statutory summary suspension, Orth argued that the officer had not adequately advised him concerning the statutory warnings, and that, as no evidence was presented concerning the accuracy of the machine or the qualifications of the operator, the test results were inadmissible and did not provide sufficient evidence for the summary suspension of his license. The State argued that, on the basis of the evidence offered, the necessary elements needed to sustain the statutory summary suspension were established by a preponderance of the evidence.

The trial court held that the officer had given Orth sufficient warning regarding the statutory summary suspension provisions. However, the court also determined that the State was required to demonstrate the accuracy of the breathalyzer and the qualifications of its operator. The court reasoned that once the petition to rescind the suspension is filed, the burden of proof shifts to the State and the proceeding cannot proceed exclusively upon the officer's reports. The court found that once the factors justifying summary suspension are put into issue by the filing of the petition, the State is required to abide by the rules of evidence which would exclude hearsay as an appropriate means to support the summary suspension.

It must first be noted that the constitutionality of the summary suspension statute (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1) is not at issue in this case. The sole issue in this case is, once the defendant requests a judicial hearing under section 2-118.1 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1), what evidence must be presented by the State in order to uphold the statutory summary suspension of his driver's license.

Section 2 -- 118.1 of the Code provides that the scope of the hearing shall be limited to the following issues:

"1. Whether the person was placed under arrest for an offense as defined in Section 11 -- 501, . . . as evidenced by the issuance of a Uniform Traffic Ticket; and

2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle while under the influence of ...


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