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03/17/89 the People of the State of v. Tracy L. Davis

March 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

TRACY L. DAVIS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 172, 180 Ill. App. 3d 749, 129 Ill. Dec. 488 1989.IL.352

Appeal from the Circuit Court of Du Page County; the Hon. Thomas E. Callum, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The State appeals from a judgment of the circuit court which rescinded summary suspension of the driving privileges of defendant, Tracy Davis, pursuant to section 2-118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1). The State contends that such rescission was improper as it was based upon the trial court's erroneous finding that a breathalyzer result of .10 is automatically subject to, and reduced by, an industrial tolerance level of .01, thus requiring rescission of the summary suspension of defendant's driver's license.

The defendant, Tracy Davis, was arrested in the early morning hours of December 27, 1987, by an Elmhurst city police officer and charged with driving under the influence of alcohol in violation of section 11-501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1)). At the police station, the defendant voluntarily submitted to a breathalyzer test on which she registered a result of .10. On the basis of this test result, the arresting officer, Michael Campise, prepared a law enforcement sworn report and served notice upon the defendant of the summary suspension of her driving privileges, pursuant to section 11-501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1).

The defendant requested a summary suspension hearing at which she presented her own testimony and that of Officer Campise. During closing argument, defense counsel stated that the type of breath-analyzing machine used in testing defendant (Smith and Wesson Model 2000) had "an industrial tolerance level of .01." The State objected to this assertion and argued that the court should not take the defense counsel's statement into consideration as there was no evidence presented on the issue of variance, and defense counsel had failed to ask the court to take judicial notice of the Department of Public Health standards relating to breath-analyzing machines.

The trial court found that Officer Campise had reasonable ground to arrest the defendant and that there were sufficient facts for him to have concluded that the defendant was driving under the influence of alcohol. However, the court stated that it would be improper not to take judicial notice "of the plus or minus ratio -- the tolerance, plus or minus, on the machine." Because the defendant's breathalyzer test result was exactly .10, and because of the claimed standards allowing for a tolerance, the trial court granted the defendant's petition to rescind the summary suspension of her driving privileges.

The sole issue presented is whether the trial court erred in taking judicial notice of an asserted "industrial tolerance level" on breathalyzer machines which would require breathalyzer test results of .10 to fail to support the automatic summary suspension of driving privileges required by section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1). The State contends that the tolerance level of a breathalyzer machine is not subject to judicial notice because it is not a fact that is generally known to be true by everyone; the State further contends that if such fact were so well known, the legislature must have taken its existence into account when drafting the applicable driving-under-the-influence statutes. The State concludes that the trial court's interpretation that the summary suspension statute does not apply when a breathalyzer test result exactly equals .10 renders a portion of the statute meaningless. We agree and reverse the erroneous judgment which rescinded the summary suspension of defendant's license on this novel theory.

Section 11-501.1(d) provides that if a motorist refuses to submit to a chemical test of blood, breath or urine for the purpose of determining alcohol concentrations therein, or, having submitted to such test, the motorist's alcohol concentration is determined to be .10 or more, the arresting officer must prepare a sworn report and submit it to the appropriate circuit court and the Secretary of State. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(d).) Section 11-501.1(e) of the Code further requires that upon receipt of such sworn report, the Secretary of State shall summarily suspend the motorist's driving privileges. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(e).) Elsewhere in the Code, driving under the influence of alcohol is prohibited (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)), as is driving when a motorist's blood or breath contains an alcohol concentration of .10 or more, as disclosed by chemical analysis (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1)). Such chemical analysis gives rise to certain presumptions, as in section 11-501.2(b)(3), which provides that if a motorist's alcohol concentration is .10 or more, "it shall be presumed that the person was under the influence of alcohol." (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.2(b)(3).) These statutes which pertain to the offense of driving under the influence of alcohol and the testing of persons suspected of driving under the influence are consistent and clear in their application of the standards set by the legislature. An alcohol concentration of .10 or more as shown by chemical analysis triggers specific statutory action on the part of law enforcement officials and the Secretary of State, and, as noted above, the showing of such an alcohol concentration gives rise to a presumption that the individual was under the influence of alcohol.

In spite of the clear direction set forth by the legislature with regard to a motorist's alcohol-concentration level as determined through chemical analysis, the defendant contends that "the statutes provide for suspension in cases where a motorists [ sic ] blood alcohol concentration, not test results, is .10 or greater." (Emphasis in defendant's brief.) The defendant is apparently arguing that the various statutory references to alcohol concentration actually indicate an absolute value rather than the results disclosed by chemical testing of an individual's blood, breath or urine. Thus, the defendant argues, any variance in a testing procedure such as the "industrial tolerance" asserted to be applicable to a Smith and Wesson Model 2000 breathalyzer machine is relevant to the issue of whether a motorist's driving privileges will be suspended pursuant to section 11 -- 501.1(e) of the Illinois Vehicle Code.

Whether a breathalyzer test was properly administered and whether the result obtained is accurate are relevant factors in a summary suspension hearing. We note, however, that the defendant in the present case failed to introduce any evidence that she was improperly tested, that the machine in question malfunctioned or the result was inaccurate. Such evidence is indispensable for the defendant to meet her burden in establishing a prima facie case for rescission. See People v. Orth (1988), 124 Ill. 2d 326, 336-38, 530 N.E.2d 210, 215; People v. Torres (1987), 160 Ill. App. 3d 643, 647, 513 N.E.2d 1142, 1145.

The Department of Public Health has promulgated regulations concerning proper testing methods and trustworthy test results. (77 Ill. Adm. Code 510.10 et seq. (1985).) It requires breath-analysis machines to "be accurate within plus or minus 0.01% W/V to be certified [as valid alcohol-concentration analysis machines]." (77 Ill. Adm. Code 510.100(a) (1985).) "W/V" is elsewhere defined as the ...


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