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09/25/89 the People of the State of v. Timothy Spence

September 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TIMOTHY SPENCE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 831, 188 Ill. App. 3d 761, 136 Ill. Dec. 145 1989.IL.1486

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

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Timothy Spence, was arrested on October 5, 1987, and charged with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)), driving with a blood-alcohol concentration of 0.10 or more (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1)), and improper lane usage (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-709). A jury found defendant guilty of all charges, but judgment was entered only on the DUI conviction. The trial court sentenced defendant to 12 months' probation, 70 hours of public service employment, and imposed a $500 fine. Defendant appeals, raising two issues: (1) whether it was error for the trial court not to allow defendant to impeach his own witness under Supreme Court Rule 238 (107 Ill. 2d R. 238) after the witness had been declared hostile; and (2) whether it was error for the trial court to preclude the impeachment of that witness pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1). Because defendant has not demonstrated that he manifestly suffered prejudice which would require reversal, we affirm.

We recite only those facts pertinent to the issue of the trial court's failure to allow defendant to impeach his witness. Prior to trial, on May 6, 1988, defendant filed a motion in limine which alleged that the breathalyzer examination should not be admitted into evidence because the examination was not conducted according to the standards promulgated by the Department of Public Health. The motion specifically alleged that the certified control reference sample was assayed falsely.

Dr. Daniel Brown, assistant chief forensic toxicologist for the bureau of forensic sciences of the Department of State Police, testified at the hearing on the motion in limine. Dr. Brown, whom defendant had subpoenaed, testified with respect to the results of an analysis of an alcohol reference solution to be used with an Intoximeter Model 3000, a breath-testing instrument. The results were recorded on a certificate of analysis prepared by the Department of Public Health. The mean value recorded for the Intoximeter Model 3000 was 0.102, while the gas chromatograph analysis had a recorded concentration of 0.1%. The doctor was asked to compare the mean value recorded for the breath-testing instrument with the concentration value recorded for the solution tested on the gas chromatograph. When asked whether the document was scientifically accurate, Dr. Brown replied that, if the document were correct, then either the gas chromatograph was improperly calibrated or the breath-test instrument was improperly calibrated. On cross-examination, Dr. Brown stated that he had not personally prepared the document, nor was he familiar with the way the actual test was conducted in the laboratory; he did not know the number of solutions that were examined to reach a "mean value."

Dr. Dietmar Grohlich, a supervisor in the toxicology laboratory of the Department of Public Health, was also asked to compare the two values recorded on the certificate of analysis. He opined that there were certain acceptable tolerances that might explain the discrepancies between the gas chromatograph results and the breath analysis instrument reading. Under cross-examination, Dr. Grohlich admitted that the document, on its face, did not accurately reflect the actual gas chromatograph analysis. Dr. Grohlich ultimately concluded that the figure used for the chromatograph concentration was merely an "equivalent" value and that it would have been more accurate to place the actual gas chromatograph results on the certificate. However, he insisted that the concentration "equivalent" in no way invalidated the document, because the alcohol solution that was used was still correctly prepared. The trial court denied defendant's motion in limine.

At trial, Dr. Brown was called to testify as a defense witness. Dr. Brown stated that he recognized that the same certificate of analysis was a type of document that he was familiar with, but he stated that he was not involved in its preparation. He said that he had no knowledge of the actual solution prepared in this case. Although he was familiar with several breath-testing instruments, he was not familiar with the model in question, the Intoximeter Model 3000, and he could only assume that the Intoximeter ran on the same principle as the other machines.

The defendant moved to examine Dr. Brown as a hostile witness and to question him on his prior inconsistent testimony at the hearing. The State did not object to his being declared a hostile witness but argued that he could not be impeached under Rule 238 because he was not an occurrence witness.

The trial court ruled that Dr. Brown was a hostile witness and that defense counsel could cross-examine him, but impeachment would not be allowed because Dr. Brown was not an occurrence witness. The court apparently relied on the comments found in the Smith-Hurd Illinois Annotated Statutes (Ill. Ann. Stat., ch. 110A, par. 238, Committee Comments, at 521 (Smith-Hurd 1985)).

Using the Intoxilyzer 4011 as an example of a machine that operates on an infrared absorption principle, Dr. Brown was asked to make certain assumptions and to hypothesize regarding the corresponding values between the breath-testing instrument result and the gas chromatograph result that would be expected to appear on the certificate of analysis. Dr. Brown acknowledged that a recorded value of 0.102 on the breath-testing instrument would not correspond to a chromatograph concentration analysis of 0.10 if both instruments were properly calibrated. If the values were the same, it would mean that one of the instruments was inaccurate.

On cross-examination by the State, Dr. Brown said that, based on the information he had before him, he could not draw a Conclusion as to what the certificate of analysis actually represented. He did not sign it; he did not prepare it; he did ...


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