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01/28/88 the People of the State of v. Brett Brandt

January 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BRETT BRANDT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

519 N.E.2d 85, 165 Ill. App. 3d 406, 116 Ill. Dec. 495 1988.IL.95

Appeal from the Circuit Court of Grundy County; the Hon. Robert G. Wren, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The trial court sustained the summary suspension of the defendant's driver's license. The defendant, Brett Brandt, appeals.

Pursuant to section 11-501.1 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1), the defendant's driver's license was summarily suspended after a breath analysis showed his alcohol concentration was over 0.10. At the hearing on his petition to rescind the suspension, the trial court ordered the defendant to proceed first with his case. The defendant objected, stating that he believed the burden of proof was on the State. The court overruled his objection.

The defendant's first witness was Morris police officer Scott Henderson. Officer Henderson testified that at 3:50 a.m. on February 20, 1987, he responded to a citizen's complaint that the citizen's son's parked car had been struck by another car. Upon arriving at the accident scene, he found two damaged cars about half a block apart. The defendant arrived on foot shortly thereafter.

Officer Henderson noticed that the defendant smelled strongly of alcohol and was wobbling on his feet. The officer asked the defendant to perform several field sobriety tests, all of which he failed. The defendant was arrested, taken to the police station and read the standard driving under the influence of alcohol warnings. The defendant agreed to take a breath analysis test and one was administered.

On cross-examination, the State questioned Officer Henderson regarding the results of the defendant's breath analysis. The defendant objected to the question and the court sustained the objection.

Morris police officer Kurt Salems testified that he also responded to the accident call. About two or three minutes after Salems arrived, the defendant walked up to the scene. According to Officer Salems, the defendant admitted that he had been driving and struck a parked car. The officer noticed that the defendant smelled of alcohol, had red eyes and swayed while standing.

The defendant rested his case. The State called no witnesses. The trial court sustained the summary suspension.

On appeal, the defendant first argues that the trial court erred in ruling that he had the initial burden of proof at the summary suspension hearing. In support of his argument, he relies on People v. Orth (1987), 154 Ill. App. 3d 144, 506 N.E.2d 960, contending that this court held in Orth that the burden of proof is on the State. We note that the Illinois Appellate Court for the Second District has similarly interpreted our Orth decision. See People v. Torres (1987), 160 Ill. App. 3d 643, 513 N.E.2d 1142.

In People v. Orth, we did not reach the issue of whether the trial court had correctly ruled that the burden of proof shifted to the State once the defendant filed a proper petition to rescind. Rather, the parties argued, and we considered, only the foundational requirements for the State's introduction into evidence of breath analysis results. We held that "once the results of [a breath test] are utilized in a proceeding, . . . the rules governing ...


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