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06/08/89 the People of the State of v. Thomas Vinson

June 8, 1989





540 N.E.2d 8, 184 Ill. App. 3d 33, 132 Ill. Dec. 592 1989.IL.867

Appeal from the Circuit Court of De Witt County; the Hon. Donald R. Parkinson, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.


On March 29, 1988, Clinton police officer Paul McCartney stopped the defendant after receiving and confirming a dispatch the defendant was driving a vehicle without a license. Officer McCartney testified at hearing he did not observe any unusual erratic driving behavior by the defendant, but the defendant stumbled when he exited the vehicle and smelled of alcohol.

At the request of Officer McCartney, the defendant gave him his driver's license, which was issued in Missouri. After running a check, Officer McCartney found the defendant's license was suspended in Illinois. Officer McCartney then asked the defendant to perform several field-sobriety tests: the walk and turn test, the one leg stand test, and the horizontal gaze nystagmus test. Officer McCartney testified it was his opinion the defendant failed the tests at that time and again at the police station.

Officer McCartney issued the defendant a citation for driving under the influence after he failed the field-sobriety tests at the police station. He then read the defendant the warning to motorists, handed him a copy to read, and asked him if he would take the breathalyzer test. The defendant said he understood the warning to motorists and verbally agreed to take the test.

The breath test was administered by Officer Jan Page of the Clinton police department. Officer Page did not testify at the hearing. Officer McCartney witnessed Officer Page administer the breathalyzer test to defendant. McCartney is not qualified to run a breathalyzer machine. Officer McCartney testified he observed the defendant was not blowing long and hard enough into the machine to complete the test. Four tests were administered to the defendant. The first result was a "0," and the second was labeled ".14 deficient air sample." No results were obtained from the final two tests. At this time it was determined the defendant failed to complete the test, and sworn reports to the circuit county of venue and the Secretary of State were filed as required by section 11-501.1 of the Illinois Vehicle Code. Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1

The trial court gave the following reasons for ruling the defendant completed the breathalyzer test: (1) defendant did take a breath test and there was a readout; (2) the State failed to explain the meaning of ".14 deficient air sample"; and (3) absent an explanation of such a reading the defendant's burden of proof was sustained. The sole question for review is whether the holding of the trial court was against the manifest weight of the evidence.

The defendant failed to file an appellate brief. The record is simple and the claimed errors are such that this court can easily decide them without the aid of the defendant's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Section 2-118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1) lists the issues to which a statutory summary suspension hearing is limited. The fourth issue is relevant to this case: "whether the person . . . did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more." Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b)(4).

Because section 2-118.1 is civil in nature, the trial court must find by a preponderance of the evidence that grounds exist for a rescission of the summary suspension. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1.) The defendant has the burden of proof in a statutory summary suspension hearing. (People v. Orth (1988), 124 Ill. 2d 326, 338, 530 N.E.2d 210, 215.) In order to attack the suspension, the defendant must also attack the officer's sworn report. People v. Blythe (1987), 153 Ill. App. 3d 292, 298, 505 N.E.2d 402, 405.

The trial court ruled correctly the defendant had the burden of proof, but incorrectly found the defendant met this burden because a ".14 deficient air sample" reading was obtained from the machine. The defendant did not attack the accuracy of the breathalyzer results or the sworn report of the officer in this case. The trial court found the defendant met his burden of proof because the State failed to explain the ".14 deficient air sample" reading. This holding is clearly against ...

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