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08/25/89 the People of the State of v. Robin A. England

August 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

ROBIN A. ENGLAND, DEFENDANT-APPELLEE AND CROSS-APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ALFREDO S. GARCIA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 43, 188 Ill. App. 3d 9, 135 Ill. Dec. 686 1989.IL.1306

Appeal from the Circuit Court of Du Page County; the Hon. Brian F. Telander, and the Hon. Robert A. Cox, Judges, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Alfredo S. Garcia, appeals from the directed finding in favor of the State in a summary suspension hearing in the circuit court of Du Page County (No. 88--0852). In a separate case, the State appeals from the order of the circuit court of Du Page County granting the petition of defendant, Robin A. England, for rescission of summary suspension (No. 88--0821).

Both cases have been consolidated on appeal and raise the issue of whether the use of a testing solution prepared by an Illinois State police trooper comports with the Illinois Department of Public Health (Department) regulations requiring the use of a certified controlled reference sample in testing and certifying a breath analysis instrument.

In No. 88--0852, defendant Garcia filed a petition for rescission of summary suspension. At the summary suspension hearing, Dietmar Grohlich, Ph.D., supervisor of the Department's toxicology section, testified regarding the Department's procedures for preparing the simulator or test solution used by the Department to test breath analysis instruments. According to Grohlich, simulator solution is an aqueous alcohol solution consisting of alcohol and water with a .10% concentration of alcohol. The solution is prepared in the Department's laboratory by chemists and then tested 4 to 10 times on a precalibrated breath analysis instrument as well as on a gas chromatograph, if one is available. Subsequent to the testing and prior to releasing the simulator solution, the gas chromatograph and breath analysis equipment are checked, and Grohlich certifies the accuracy of the simulator solution. The Illinois State Police is the only law enforcement agency to create its own simulator solution to certify a breath analysis instrument.

Trooper Dennis Erickson of the Illinois State Police, who certified the accuracy of the breath analysis instrument used to test defendant Garcia, testified to the procedures he followed in preparing the simulator solution used in certifying the instrument. He is designated as an inspector by the Department to certify, repair, and maintain breath testing instruments of the Illinois State Police. Trooper Erickson stated that he followed the instructions provided by the manufacturer of the breath analysis instrument for making simulator solution. He first made what is known as stock solution which is prepared by measuring 77 milliliters of 200-proof ethanol (ethyl alcohol) with 923 milliliters of distilled water. This is done by using a graduated pipette for measuring. Although Trooper Erickson's testimony is not altogether clear, he apparently stored the stock solution in his refrigerator and later in a locked cabinet in his basement.

To prepare the simulator solution, he mixed, using a burette, 10 milliliters of the stock solution with 490 milliliters of distilled water. Neither the stock solution nor the simulator solution was tested for accuracy on any testing instrument prior to his using the simulator solution to test the breath analysis instrument used in this case. Once he completes his testing of breath analysis instruments on a particular day, he disposes of the simulator solution. The printouts of the test results produced by the breath analysis instrument indicate that on May 4, 1988, the test results were two .10% readings and one .09% result and the results for the June 2, 1988, test were two .09% results and one .10% result. According to Trooper Erickson, if the instrument is functioning properly, it should read .10% plus or minus .01% when tested.

The trial court granted the State's motion for a directed finding and ruled that the defendant had not presented any evidence that there was anything improper in Trooper Erickson's testing procedure which would raise a prima facie case.

In No. 88--0821, defendant England filed a petition for rescission of summary suspension, and the following facts were adduced at the hearing thereon. The breath analysis instrument used to test defendant England was certified on April 4, 1988, and again on May 4, 1988, both times by Trooper Erickson. Trooper Erickson testified that he prepared the simulator solution used to test the instrument on April 4, 1988, in his home and per the instructions provided by the Illinois State Police. Erickson admitted that if the solution was not properly made, it would affect the certification of the breath analysis instrument. Erickson also stated that he did not test the simulator solution on any independent testing device nor was it certified by anyone. Erickson indicated that the simulator solution was .10%, and the readings obtained as a result of his testing on April 4, 1988, were both .09%. The readings on May 4, 1988, were .10% for two readings and .09% for another.

Erickson prepared the April 4, 1988, simulator solution from the same batch of stock solution that he used to prepare the May 4, 1988, simulator solution. That simulator solution was not submitted to a chemist or laboratory for analysis. Both batches of simulator solution were disposed of after being used on the dates of April 4 and May 4, 1988.

Erickson further stated that he had always followed the manufacturer's instructions for making the simulator solution and for storing the stock solution. Additionally, he stated that he was issued the necessary equipment for preparing the solutions and was trained in its use. He testified to the procedures he followed in making the solutions. He further testified that the ratios used in preparing the solutions are recommended by the ...


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