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05/14/87 In Re Summary Suspension of Driver's License of Omer A.

May 14, 1987

IN RE SUMMARY SUSPENSION OF DRIVER'S LICENSE OF OMER A.


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

RAMOS (The People of the State of Illinois,

Petitioner-Appellee, v.

Omer A. Ramos, Defendant-Appellant)

508 N.E.2d 484, 155 Ill. App. 3d 374, 108 Ill. Dec. 323 1987.IL.629

Appeal from the Circuit Court of Livingston County; the Hon. W. Mark Dalton, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Defendant, Omer Ramos, appeals from an order of the circuit court of Livingston County denying his petition to rescind the summary suspension of his driver's license, which petition was filed pursuant to section 2-118.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1).

The State failed to file a timely brief, and, upon motion of the defendant, we determined to proceed on the appeal without it. The pertinent facts are simple, and the allegations of error can be decided without such assistance. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

On March 22, 1986, defendant was arrested for driving while under the influence of alcohol. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.) He agreed to take a breathalyzer test and did take the test. The regulations pertaining to the operation of the breathalyzer machine require a 20-minute period of observation prior to administering the test. After a full 20 minutes of observing defendant, the trooper charged with administering the test attempted to take defendant's breath sample. Unfortunately, the trooper had forgotten to reset the machine for a breath sample after taking the required control sample of room air. The trooper had to spend some six minutes resetting the machine to accept a breath sample. His testimony at the "implied consent" hearing was that he spent the six minutes focusing his attention primarily on the machine and not the defendant, although the defendant was within his peripheral vision. There were no water fountains or food in that area, and the trooper smelled no smoke. He did not see any vomit to indicate defendant had regurgitated. The trooper did not stand and stare at the defendant as he had for the 20 minutes prior to attempting the test, but he had occasion to see defendant as he worked to reset the machine. Defendant was seated five to seven feet away from the machine and did not leave the area during the six-minute period. The test resulted in a reading of .21.

Defendant received confirmation from the court that his driver's license would be suspended. He filed a petition to rescind the summary suspension pursuant to section 2-118.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1). Along with this petition, he filed a motion for declaration of unconstitutionality. At the hearing, defendant moved to have the test results stricken on the basis of the six-minute gap in observation prior to administering the test. The court denied the petition finding the arresting officer had reasonable grounds to believe defendant to be under the influence of alcohol. The court also denied both of defendant's motions.

On appeal, defendant raises two alleged errors: (1) the trial court erred in denying the motion to strike the test results as the six minutes of noncontinuous observation prior to administration of the breathalyzer test is a failure to comply with the mandatory operating procedures; and (2) the summary suspension procedure encompassed in the Illinois Vehicle Code is unconstitutional.

Section 11-501.2(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.2(a)(1)) requires that chemical analysis of a person's breath be conducted according to standards set by the Department of Public Health. One of the standards is a 20-minute ...


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