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01/13/89 the People of the State of v. Eddie Clark

January 13, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EDDIE CLARK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 974, 178 Ill. App. 3d 848, 127 Ill. Dec. 892 1989.IL.26

Appeal from the Circuit Court of Lake County; the Hon. Raymond J. McKoski, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. WOODWARD and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Following a jury trial, on October 7, 1987, the defendant, Eddie Clark, was found guilty of driving while his license was suspended (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-303(a)), and driving under the influence of alcohol with a blood-alcohol content of 0.10 or more (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1)). Defendant contends that the trial court abused its discretion when, over the defense counsel's objection, it twice permitted the State to recall a police officer during its case in chief, and that it was an abuse of discretion to admit the results of defendant's breath analysis into evidence over defense counsel's objection that the foundational requirements were insufficient. We affirm.

At trial, Sergeant Miguel Juarez of the Waukegan police department testified that on October 14, 1987, at approximately 10:20 p.m., he and his partner, Wayne Hunter, were on patrol in an unmarked car near the intersection of Green Bay and Washington Streets in Waukegan. The officers were stopped at a stoplight. Juarez, who was driving, testified that he observed defendant's car in his rearview mirror approaching the rear of their car at a high rate of speed. The brakes of defendant's car locked, and the car skidded, stopping about a foot from the rear of the police car. After proceeding through the intersection, Juarez observed defendant's vehicle tailgating, and eventually defendant passed the police car, crossing over the double, solid lane dividers once or twice. At this time Juarez made a traffic stop. Upon stopping the defendant, Juarez observed the defendant fumbling to produce his driver's license and detected a strong odor of alcohol on defendant's breath. After exiting the vehicle, Juarez observed that defendant was swaying, that he had difficulty maintaining his balance, and that his words were somewhat slurred and his eyes bloodshot. He was then arrested for driving under the influence of alcohol and brought to the police station. There defendant submitted to field sobriety tests which indicated that he was having a balance problem. He also submitted to a breathalyzer test which resulted in a .22 BAC reading.

At trial, Sergeant Juarez was questioned regarding an abstract of the defendant's driving record from the Secretary of State of Illinois, but defense counsel's objections were sustained, and the State proceeded on to other matters, the driver's abstract not having been admitted into evidence. After testifying about the field sobriety test administered to the defendant, Sergeant Juarez testified that he read the defendant his "warning to motorist." A document which was later admitted into evidence was marked and identified as a warning to motorist which is given to a person arrested on suspicion of driving under the influence of alcohol. Sergeant Juarez then summarized the contents of that form and testified that during the booking procedure he advised the defendant of his rights. He also testified that he read the warning to the defendant. Finally, Sergeant Juarez testified that defendant was "unsafe on the street" due to the influence of alcohol. The State advised the court that it had no further questions of Juarez at that time. A recess was then declared until the next morning.

At the commencement of proceedings the next day, on October 6, 1987, the State moved to recall Sergeant Juarez. Over defendant's objection, Sergeant Juarez was recalled. The State then moved to admit a certified abstract of the defendant's driving record from the Secretary of State. It was admitted over objection. The witness read into evidence the Secretary of State's certification that a suspension of the defendant's driving privileges was in effect at the time of the offense.

The defendant's cross-examination of Sergeant Juarez was essentially limited to the details of the initial traffic stop and the basis for the witness' opinion that defendant was under the influence of alcohol.

Officer James McCarthy testified that he administered a breath-analysis test to defendant. He stated that Sergeant Juarez had read the warning to motorist to defendant and that defendant agreed to take the breath test. McCarthy briefly explained the function of the breathalyzer machine. When asked if there was a standard arrest procedure that he followed in administering breathalyzer tests, McCarthy stated that a checklist must be followed and that the "State sets up the standard . . . as far as training and the actual operation of the machine, yes." The trial court took judicial notice of the Illinois Department of Public Health standards for administering such tests.

McCarthy then testified that he had been performing these tests according to the checklist and had been continuously certified for 15 or 16 years by the State of Illinois. He described a recertification procedure wherein the inspector watches the operator perform the test to determine whether he is still capable of performing the test according to the guidelines. The officer's certification was then admitted into evidence. McCarthy further described the procedures he followed based on the checklist which indicated "Intoxilyzer Model 5000 Operational Procedure." This was the procedure he was to follow every time he turned the machine on. He further testified that the machine is totally automatic once turned on and that it goes through a given cycle once it is purged.

After further testimony concerning various aspects of the breath-testing procedure, the State moved for admission of the breathalyzer printout. The defendant objected on foundational grounds, arguing that there was no showing that the testing procedure was performed according to a procedure approved by the Illinois Department of Public Health (Department) and based on the manufacturer's recommendations pursuant to the Department's regulations (see 77 Ill. Adm. Code 510.60(d) (1985)).

The trial court found that Officer McCarthy had testified to the foundational requirements and that he was shown to be certified, that there was compliance with the 20-minute observation period, that there was a readout, and that the machine was approved and certified. The court reasoned that since the operational procedures had been followed according to the rules of the Department found at sections 510.10 to 510.120 of the Administrative Code (77 Ill. Adm. Code 510.10 through 510.120 (1985)), it was not necessary to determine whether the officer followed any procedure recommended by the manufacturer. The trial court cited People v. Duensing ...


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