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07/28/89 the People of the State of v. Michael A. Philippi

July 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

MICHAEL A. PHILIPPI, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 898, 186 Ill. App. 3d 353, 134 Ill. Dec. 552 1989.IL.1177

Appeal from the Circuit Court of Du Page County; the Hon. Donald J. Hennessy, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

In this appeal, the State raises one issue, namely, that the trial court's decision to take judicial notice of the testimony of two nonparty witnesses given in an unrelated case was manifestly erroneous.

On February 26, 1988, defendant Michael Philippi was charged with the offense of driving under the influence of alcohol in violation of sections 11-501(a)(1) and 11-501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 11-501(a)(1), (a)(2)). Defendant submitted to breathalyzer testing which disclosed a blood-alcohol concentration of .21. Defendant filed a petition to rescind the revocation of his driver's license, and at the hearing on said petition, defendant's attorney sought to introduce evidence that the results of the breath-alyzer test did not comply with the standards and procedures for testing alcohol and other drugs promulgated by the Illinois Department of Public Health (Department) and that the simulator solution in this case was improperly assayed (tested).

At the hearing on the petition to rescind, defendant filed a motion in limine, and in support of said motion, defendant sought to introduce several exhibits into evidence. Defendant's exhibit No. 1 was a certified public record of the Department for the February 10, 1988, accuracy check by the Department's inspector John Dorko of Intoxylizer 3000, serial No. 4073, the breathalyzer used by the Bloomingdale police department in the instant case. Defendant's exhibit No. 2 was a copy of an accuracy check performed by the same inspector on the same instrument performed on March 3, 1988. Defendant's exhibit No. 3 was the the Department's certificate of analysis for testing solution lot No. 87--134, which was used to test the instant breathalyzer on February 10, 1988, and March 3, 1988. Defendant's exhibit No. 4 was the transcript of the testimony of two witnesses, John Dorko and Dr. Daniel Brown, given on May 24, 1988, in the case of People v. Hurmuz, No. 88--TR--39055 (Cir. Ct. Du Page County). Defendant's exhibit No. 5 was a photocopy of the breath ticket issued by the Bloomingdale police department to the instant defendant on February 26, 1988.

In People v. Hurmuz, following an order of summary suspension, the defendant therein, at a hearing on summary suspension, called two witnesses, Mr. John Dorko and Dr. Daniel Brown. (It should be noted here that the same Judge presided over both People v. Hurmuz and the instant case. Also, the prosecuting attorney and defense counsel were the same in both cases.) Defendant's exhibit No. 4 was a certified copy of the transcript of the testimony of John Dorko and Dr. David Brown, given in People v. Hurmuz. Mr. Dorko, an inspector with the Department, testified that on March 17, 1988, and April 14, 1988, he certified the Glendale Heights Breathalyzer 2000 using as the simulator solution, batch 87--134 (the same solution used to certify the instant breathalyzer). Mr. Dorko testified that he obtained simulator solution batch 87--134 from the Department in Chicago. He then stated that in certifying the Glendale Heights breathalyzer, he placed the solution in the simulator (a component of the breathalyzer) at a controlled temperature. The simulator solution was then blown through the machine in order to obtain a reading of .10, plus or minus a hundredth. Mr. Dorko also testified that if the simulator solution he used to test the machine was not accurate, the machine could not be appropriately certified.

Dr. Daniel Brown testified in People v. Hurmuz that he is the acting chief toxicologist for the Illinois State Police, Bureau of Forensic Sciences. He stated that he has been involved in the testing of alcohol for over 20 years, and that he is certified by the Department to analyze blood and urine for the presence of alcohol and other drugs. Dr. Brown testified that his department is currently involved in doing chemical analysis of blood and urine specimens for the presence of drugs and alcohol. Dr. Brown stated that the simulator is a device used to create an alcohol and air solution of known concentration. A solution is placed inside the simulator, and said solution is used to produce an alcohol air volume of known alcohol concentration for calibrating the breathalyzer.

Dr. Brown further testified in People v. Hurmuz that a gas chromatograph (otherwise known as a breathalyzer) is an electronic instrument that is used to do analysis on a variety of substances, including measuring the alcohol in blood. He testified that if the gas chromatograph were properly calibrated, the simulator solution would register a reading of .121 grams of alcohol on the gas chromatograph. He admitted that the Department's certificate of analysis for batch 87-134 stated that the alcohol concentration was .10 rather than .121. Later in Dr. Brown's direct examination, the following colloquy took place.

"Q. In your opinion, is a gas chromatograph designed to estimate or is it designed to read accurately?

A. It's designed to read accurately.

Q. And in your opinion, as the document [certificate of analysis] reads, isn't it in fact true that ...


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