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09/29/88 the People of the State of v. Jerry Orth

September 29, 1988





530 N.E.2d 210, 124 Ill. 2d 326, 125 Ill. Dec. 182 1988.IL.1482

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Henderson County, the Hon. Lewis D. Murphy, Judge, presiding.


JUSTICE CLARK delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.


The principal question posed in this appeal is whether a driver who suffers the summary suspension of his license has the burden of proving that the suspension should be rescinded. The answer to this question is yes.

In the circuit court of Henderson County, the defendant filed a written request, which he styled a "petition," to rescind the summary suspension of his driver's license. After a hearing, the circuit court granted the defendant's request. The State appealed, and the appellate court affirmed (154 Ill. App. 3d 144). We granted the State's petition for leave to appeal. 107 Ill. 2d R. 315.

The facts which were presented at the hearing on defendant's request are as follows. At approximately 1:30 a.m. on January 12, 1986, Police Chief Ron Myers was on duty, patrolling Dallas City. While driving his car south on Oak Street, a two-way street, Myers noticed a southbound white and tan Oldsmobile ahead of him. Earlier that evening he had seen the same car parked in front of the Circle C and Riverfront Taverns. While both vehicles continued to travel south, Myers saw the car he was following stray over the Oak Street centerline after crossing a set of railroad tracks. It remained over the centerline until it reached an intersection. Just before reaching the intersection, its right rear taillight went out. The taillight went back on again as the car turned right onto Third Street. As Myers followed the car east on Third Street -- also a two-way street but without a marked centerline -- he saw it stray into the westbound lane. Myers then turned on his red lights.

In response, the defendant pulled his car onto the gravel shoulder of Third Street, and Myers pulled up behind him. Both Myers and the defendant left their cars, meeting behind the defendant's Oldsmobile. Myers told the defendant that his brake lights were not working properly and that he had twice crossed the unmarked Third Street centerline. During this conversation, Myers noticed the odor of alcohol on the defendant's breath. The defendant then performed a field sobriety test at Myers' request. Dissatisfied with the defendant's performance, Myers arrested the defendant for driving under the influence and gave him the requisite statutory warnings. He then took the defendant to the Henderson County jail, where he again read the defendant the warnings and gave him a copy of the paperwork. The defendant consented to take a breathalyzer test. As Myers watched, an Illinois state trooper named Dennison administered the test, which disclosed a blood-alcohol concentration of 0.12.

Based on this result, the defendant was notified of the statutory summary suspension of his driver's license. He then filed a "petition" to rescind the summary suspension, and a hearing was conducted. The petition alleged that: (1) he had not been adequately advised about the statutory warnings, and (2) as no evidence had been presented to verify the accuracy of the breathalyzer machine or the qualifications of its operator, the results were inadmissible and did not provide sufficient evidence to warrant the summary suspension of his license. At the beginning of the hearing, the trial court ruled that the State had the burden of showing that the suspension should not be rescinded, and directed the State to proceed with its evidence. The State then called as its only witness Police Chief Myers, who testified to the facts stated above. The State also attempted to introduce into evidence Myers' official, sworn report, which included the results of the breathalyzer, the notice of warning to the motorist, and other papers. The court admitted all of these into evidence, but reserved ruling upon whether the breathalyzer results contained in the report would also be admitted. After Myers had testified, the court ruled that the report could be admitted to the extent that it showed that Myers had observed the test, but could not be admitted to demonstrate the truth of the results or the accuracy of the machine. The State introduced no evidence as to Trooper Dennison's certification to conduct such a test or as to the accuracy of the machine.

After the State rested, the defendant's counsel moved for a directed verdict and for the grant of his request for a rescission of his summary suspension. The circuit court held that the defendant had been sufficiently warned of the statutory summary suspension provisions. The court also ruled, however, 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 also found that once the factors justifying the summary suspension are put it into issue by the filing of a request for a hearing, the State is required to abide by the rules of evidence. Since, absent a foundation, the test results were hearsay, they were inadmissible. The circuit court therefore rescinded the suspension of the defendant's license.

On appeal, the appellate court agreed, holding:

"Although a conviction for driving a motor vehicle while under the influence of alcohol may be sustained even though based entirely upon the arresting officer's testimony and observations and not upon any scientific evidence of intoxication such as a breathalyzer test [citation], once the results of such a test are utilized in a proceeding, as they are in this case, then the rules governing admissibility of such test results must govern." (154 Ill. App. 3d at 148.)

The court did not explicitly consider the propriety of placing the burden of proof in a summary suspension proceeding upon the State. All other panels of the appellate court which have considered the issue have held that the burden of the proof in summary suspension proceedings rests initially with the defendant-motorist; and that until the motorist presents a prima facie case for rescission the State is not required to demonstrate the accuracy of the breathalyzer results. People v. Keller (1988), 168 Ill. App. 3d 426; People v. White (1988), 167 Ill. App. 3d 439; People v. Brandt (1988), 165 Ill. App. 3d 406; In re Summary Suspension of Driver's License of Vaughn (1987), 164 Ill. App. 3d 49; People v. Blythe (1987), 153 Ill. App. 3d 292; ...

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