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03/30/89 the People of the State of v. Michael Hedeen

March 30, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

MICHAEL HEDEEN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

537 N.E.2d 346, 181 Ill. App. 3d 664, 130 Ill. Dec. 279 1989.IL.447

Appeal from the Circuit Court of Jackson County; the Hon. David W. Watt, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. WELCH, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Defendant, Michael Hedeen, was arrested on April 8, 1987, at 12:26 a.m. for driving under the influence of alcohol, pursuant to section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par 11-501). On that date, defendant was given a written notice of the summary suspension of his driving privileges pursuant to section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1). On April 28, 1987, defendant filed a petition to rescind statutory summary suspension in which he alleged that he did not refuse to take the breathalyzer test and that his failure to complete the test was not due to any "fault or wilful intent" of himself. A hearing was held on May 28, 1987, in which two matters were considered. The first matter considered at the hearing was defendant's charge of driving under the influence of alcohol, to which defendant entered a plea of guilty. The remainder of the hearing concerned the defendant's petition to rescind his statutory summary suspension. After considering the evidence presented, the circuit court granted defendant's petition to rescind his summary suspension. From this order, the State appeals.

At the hearing on defendant's petition, Officer Murphy testified that on April 8, 1987, at approximately 1:14 a.m., he attempted to administer a breathalyzer test to the defendant. Officer Murphy advised defendant that refusal to take the breathalyzer test or failure to complete the test, which would be deemed a refusal, would result in defendant automatically losing his driving privileges for six months. Defendant agreed to take the breathalyzer test, and before administering the test, Officer Murphy instructed the defendant that upon seeing the words "Please blow" light up on the machine, defendant was to take a deep breath and blow into the mouthpiece, which would activate a tone. Defendant was to continue to blow into the mouthpiece until the tone stopped, approximately three to five seconds.

Officer Murphy attempted to give defendant the breathalyzer test five times. Before each of the tests, Officer Murphy explained to defendant that failure to complete the test would be considered a refusal to take the test and he repeated his instructions on how to take the test. Officer Murphy testified that in four of the test attempts by defendant the tone was never activated when defendant blew into the mouthpiece. According to the officer, for these four tests, defendant blew for only a short time, then removed his mouth from the mouthpiece and stated that he could not blow any longer. The machine printout for those four attempts indicated that these tests were an "invalid test."

In the fifth test, defendant blew into the mouthpiece and the tone was activated, but for only a short period of time. Officer Murphy stated that when the tone was activated, defendant "backed off of the mouthpiece" and the tone stopped. The printout of this test indicated that there was a "deficient sample" from which to obtain a reading.

Only two printouts of the test results were admitted into evidence, one stating "invalid test" and one stating "deficient sample," which were identified by Officer Murphy as the results of the first and last tests attempted. Officer Murphy recalled that the other three tests had indicated "invalid test." Officer Murphy initially testified that the printout stating "invalid test" was for defendant's first attempt to take the breathalyzer test and that the printout stating "deficient sample" was for the last test attempted, but he later corrected himself and explained that the "deficient sample" was for the first test, and "invalid test" was for the last test.

According to Officer Murphy, a printout stating "invalid test" normally indicates operator error. However, Officer Murphy explained that in the four tests in which this occurred, the printouts of "invalid test" were due to his intentional resetting of the machine for defendant to retake the test after defendant failed to activate the tone. Officer Murphy did this at defendant's repeated insistence that he was willing to take the test. He further explained that "deficient sample" indicated that an insufficient air sample had been obtained. On cross-examination, Officer Murphy testified that if the machine were malfunctioning, it would have so indicated, which it did not do.

After the fifth attempt by defendant to take the test, Officer Murphy concluded that defendant was not cooperating and deemed his inability to complete the breathalyzer test a refusal. Officer Murphy conjectured that defendant was placing his tongue over the hole of the mouthpiece and blowing, thus making it appear that defendant was blowing into the mouthpiece. However, Officer Murphy did not see defendant's tongue over the mouthpiece.

Officer Robert Ledbetter testified that he was the officer who arrested defendant for driving under the influence of alcohol on April 8, 1987. Officer Ledbetter was present when Officer Murphy attempted to administer the breathalyzer test to defendant, and he corroborated that defendant attempted to take the test five times. Officer Ledbetter heard Officer Murphy explain to the defendant how to take the breathalyzer test, but that defendant did not follow the instructions given. He testified that Officer Murphy instructed defendant to blow continuously into the machine to produce a solid tone and to continue to blow until the tone stopped, but that defendant did not do this in any of the tests attempted. According to Officer Ledbetter, only an intermittent tone was ever activated. In Officer Ledbetter's opinion, he did not believe that defendant wanted to take the test even though defendant expressed that he was willing to do so. Officer Ledbetter admitted he was not a qualified operator of the breathalyzer machine.

Defendant testified that on April 8, 1987, he was arrested by Officer Ledbetter for driving under the influence. He admitted that in the evening prior to his arrest, from 6 p.m. to 12 midnight, he had consumed 8 to 10 beers. Defendant also admitted that he had entered a plea of guilty to ...


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