APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
532 N.E.2d 306, 177 Ill. App. 3d 342, 126 Ill. Dec. 621 1988.IL.1757
Appeal from the Circuit Court of Cook County; the Hon. Paul T. Foxgrover, Judge, presiding.
JUSTICE EGAN delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN
This appeal involves the propriety of one trial Judge ruling on the admissibility of evidence which had already been ruled upon by another Judge.
The defendant was charged with driving under the influence of alcohol and driving with a blood-alcohol level over .10. She was found guilty by a jury of driving with a blood-alcohol level over .10 and not guilty of driving under the influence. She was sentenced to one year's conditional discharge, fined $2,000 and ordered to perform 64 hours of community service.
Her first contention is that the trial Judge, Judge Paul T. Foxgrover, improperly admitted evidence which had previously been ruled inadmissible by Judge Loretta C. Douglas.
The defendant appeared first before Judge Douglas on February 26, 1986, on her petition to rescind a summary suspension. Judge Douglas denied admission to three exhibits offered by the State: an unsworn breathalyzer test record showing a reading of .18 and signed by Sergeant Selvey, the test operator; a "Motor Vehicle Intoxication Report" signed by officer McNabney, the arresting officer; and a Sauk Village Police Department report showing McNabney as the reporting officer. The defendant objected on the ground that all three were hearsay and that some lacked foundation and were not authenticated. The State contended that all three were admissible, citing section 2-118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1(b)). After the Judge denied the admission of the exhibits, the State rested. The Judge held that the State had the burden of proof at the hearing and rescinded the statutory summary suspension. (This case was decided before the ruling in People v. Orth (1988), 124 Ill. 2d 326, 338, in which the supreme court held that the burden of proof at a summary suspension hearing rests with the defendant.)
Subsequently the defendant filed a motion in limine to prevent the State from using the results of the breathalyzer tests at trial on the ground that the State was collaterally estopped. On June 26, 1986, Judge Douglas granted the motion, holding that estoppel by verdict applied.
The defendant then filed a jury demand, and the case was transferred to Judge Foxgrover. On September 26, 1986, the defendant filed a motion to sever the driving under the influence count from the count charging driving with a blood-alcohol level of .10 or over. In response, the State filed a motion asking Judge Foxgrover to reconsider the order in limine entered by Judge Douglas. Judge Foxgrover granted the motion to reconsider.
On March 3, 1987, Judge Foxgrover held a hearing on the defendant's second motion in limine to exclude the test results and on her motion to quash the arrest and suppress evidence. All the motions were denied. At the trial, Sergeant Selvey testified to the breathalyzer test results.
The defendant's argument, summarized, is that Judge Douglas' order in limine was an appealable order under Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)(1)). That rule provides, in part, that the State may appeal from an order or judgment the substantive effect of which results in dismissing the charge. The State did not appeal the order of Judge Douglas. Therefore, the defendant concludes, the ruling of Judge Douglas became final and binding.
The State's first response is that the defendant waived the argument that Judge Foxgrover was incorrect, because she filed a motion to suppress and a second motion in limine after Judge Foxgrover allowed the State's ...