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12/07/89 the People of the State of v. Donald J. Reding

December 7, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD J. REDING, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

547 N.E.2d 1310, 191 Ill. App. 3d 424, 138 Ill. Dec. 689 1989.IL.1908

Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Defendant, Donald Reding, was found guilty after a jury trial of reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9-3) and was sentenced to 24 months' probation, four weekends' periodic imprisonment, a $500 fine, and court costs. Defendant appeals from this conviction.

On appeal, defendant contends that this court should reverse his conviction or reverse and remand for a new trial based upon the following alleged errors at trial: (1) the court should not have admitted evidence of Reding's blood-alcohol content without first making a preliminary finding that the testing was reliable; (2) the court should not have admitted improper testimony of the State's accident reconstruction expert; (3) the State should not have been allowed to cross-examine Reding and other witnesses concerning Reding's prior use of alcohol; (4) the defendant should have been allowed to cross-examine the breathalyzer technician concerning "false highs" registered by the breathalyzer machine in connection with another case; (5) the court should have allowed Reding to impeach a police officer by questioning him about omissions in his police and accident reports; (6) the court should not have given Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) because it violated Reding's due process rights; (7) Reding's attorney should not have tendered Illinois Pattern Jury Instructions Criminal 2d No. 23.05, as this constituted ineffective assistance of counsel; and (8) Reding was not proved guilty beyond a reasonable doubt.

On July 16, 1986, Reding was charged with reckless homicide. (Ill. Rev. Stat. 1985, ch. 38, par. 9-3.) This charge arose out of a May 12, 1986, automobile/motorcycle accident that resulted in the death of the driver of the motorcycle, Craig Miraglia.

Prior to trial, Reding moved to suppress the results of a breathalyzer test administered shortly after the accident. Reding alleged that the results of the test were unreliable and admission of this evidence would violate his due-process rights and right to a fair trial. Reding stated that he had a witness who would testify to Reding's actual solubility ratio as tested several months after the accident. A solubility ratio is the ratio of alcohol in the blood to alcohol in the breath. Reding's witness would testify that Reding's actual solubility ratio was 1,681:1 as opposed to the 2,100:1 ratio built into the breathalyzer machine. The significance of this fact is that Reding's blood-alcohol content would have been .0864% instead of .12% as registered by the breathalyzer.

The State moved to strike Reding's motion, and the court granted this motion. The court found that Reding did not establish that evidence of his blood-alcohol content was inadmissible. The court stated:

"I'm not able to agree with you that it is not a question of fact for the jury. It's something that I assume you would be able to show to the jury as it relates and then the jury will determine how much weight they want to give the test result and how much weight they want to give your expert's testimony."

The court struck the motion so as to avoid the necessity of going forward with a hearing on it. Reding renewed his motion, and the court again denied it without a hearing.

At trial, Thomas Bumgarner, a Kane County deputy sheriff, testified. He was dispatched to an accident scene at approximately 8 p.m. on May 12, 1986. Upon his arrival, he saw a motorcycle lying on its side just off the roadway and a pickup truck in a nearby driveway. Officer Ronnie Grommes and an ambulance were at the scene. Grommes suggested that Bumgarner speak with the driver of the truck, Reding. Grommes also informed Bumgarner that Reding's breath smelled of alcohol.

Reding informed Bumgarner that he was driving west on Plank Road and, as he turned across the eastbound lane into his driveway, the motorcycle driven by Miraglia collided with his truck. Reding indicated that he did not see the motorcycle before impact. Reding also told Bumgarner that he had recently consumed a couple of beers at a local tavern. Bumgarner further testified that Reding's breath had a strong odor of alcohol, he was swaying, his speech was confused, his eyes were bloodshot and watery, and his appearance was "disheveled." Bumgarner administered two field sobriety tests to Reding, and Reding failed both tests. Bumgarner testified that at this point he felt Reding was under the influence of alcohol. Bumgarner informed Reding that he was under arrest and transported him to the sheriff's office.

Bumgarner testified that, upon arrival at the sheriff's office, Reding was informed of his rights, and he appeared to understand them. Reding submitted to a breathalyzer test. The result of this test was a blood-alcohol content of .12%.

John Dorko testified on direct examination that he is a breathalyzer technician responsible for recertifying breathalyzer machines. Dorko stated that he introduces a solution containing .10% alcohol into the machine, and if he receives a reading within .005% of .10% on two occasions, then he recertifies the machine. Dorko testified that he recertified the machine used by Reding on April 30, 1986, and on May 23, 1986.

Dorko testified on cross-examination that there is an assumption built into the breathalyzer machine. The assumption is that one unit of alcohol on the breath is equal to 2,100 units of alcohol in the blood. Dorko stated that, if a person has a lower breath to blood-alcohol ratio, that person's blood-alcohol content would be lower than that registered by the breathalyzer.

Defendant then attempted to question Dorko concerning tests he performed on the breathalyzer machine approximately 10 days prior to trial. These tests were performed as a result of a separate and unrelated case. The State objected and argued that this information was irrelevant as it pertained to a test performed eight months after the breathalyzer was used to test Reding. The court sustained this objection.

Eric Norwood, an accident reconstruction officer for the Illinois State Police, was then called to testify. Norwood testified that his services were requested by the Kane County sheriff's department. Norwood inspected the scene of the collision approximately four days after the accident. Norwood observed a skid mark and measured it to be 56 feet long. Norwood also conducted a drag factor test to determine the coefficient of friction of the roadway. The roadway was made of asphalt, fairly new and bordered by gravel shoulders. Norwood also visited the Kane County impound facility and examined the vehicles involved approximately seven days after the collision. Norwood discovered that the truck sustained damage to its right front fender, bumper, hubcap and hood. The motorcycle sustained damage to its exhaust system, front fender, headlamp assembly, turn signals, gas tank and handlebars. The motorcycle's lights, brakes, linkage and transmission were in working order. Through his investigation, Norwood discovered that at the time of the accident it was 58 degrees, clear, with no precipitation, and the sun was near the horizon in the west.

Norwood further testified that, based upon his investigation, it was his opinion that the motorcycle was traveling eastbound at approximately 50 miles per hour before applying its brakes and had slowed to approximately 20 to 25 miles per hour at the time of impact. The collision occurred in the eastbound lane of the roadway as the truck turned across this lane to enter a driveway. Norwood further opined that the location of the sun was not a factor in the accident, Reding's consumption of alcohol was a factor in the accident, and the accident was caused by Reding's improper tactics.

Dr. Daniel J. Brown, a toxicologist for the Illinois State Police, testified that alcohol is absorbed into the bloodstream at varying rates. Dr. Brown stated that a person weighing 185 pounds with a blood-alcohol content of .10% would experience a loss of visual and mental acuity, a slower reaction time and an impairment in judgment. Dr. Brown opined that it would be impossible for a 185-pound man to drink two 12-ounce beers in 1 1/2 hours and have a resultant blood-alcohol content of .12%. Dr. Brown testified that a person of such weight would have to drink approximately six 12-ounce beers in that period of time to obtain a blood-alcohol content of .12%.

On cross-examination, Dr. Brown acknowledged that the inhalation of the chemical toleune could cause effects in the body similar to the effects caused by ingestion of alcohol. However, Dr. Brown testified that toleune and isopropyl alcohol are rapidly excreted out of the body.

Roger Wuilleimier, testifying during defendant's case in chief, stated that Reding arrived at Wuilleimier's home at approximately 5:15 p.m. Reding was returning a truck to Wuilleimier. Reding stayed at Wuilleimier's residence for approximately one hour and consumed two 12-ounce beers. Over objection, Wuilleimier testified that he had consumed alcohol with Reding in the past, and Reding's place of business is near a tavern.

Ronald Burnidge, Carol Burnidge, and Ronald Burnidge, Jr., each testified that they met with Reding at Reding's shop at approximately 7 p.m. on May 12, 1986. Both Reding and Ronald, Jr., drove an automobile that Reding was selling. Ronald, Jr., testified that Reding did nothing unusual to indicate that he was intoxicated. Additionally, Ronald and Carol also testified that they did not believe Reding was intoxicated at the time. All three witnesses testified that Reding smelled of lacquer or paint thinner. Ronald, Jr., testified that he and his parents left Reding's shop between 7:20 and 7:30 p.m.

Officer Grommes testified that when he arrived at the scene, he spoke briefly with Reding. Reding's breath smelled of alcohol, his speech was slightly slurred, his eyes were glassy, and he was "very nervous." Grommes further testified that it was his opinion that Reding was under the influence of alcohol.

The defendant requested the court to declare Grommes a hostile witness. The court refused this request. Defendant questioned Grommes about his failure to include certain information in the police report. The State objected, and these objections were sustained.

Reding's wife, Diane, testified that when Reding entered their home immediately after the accident, she smelled only paint fumes. Reding did nothing to indicate to her that he was intoxicated. Diane further testified that she was present several days later when Reding emptied the paint out of the sprayer that he was using on May 12, 1986. Diane took a sample of the paint to Fitzsimmons & Associates for a chemical analysis. Additionally, Diane, as well as several other witnesses who had known Reding for a substantial period of time, testified that Reding's eyes are normally bloodshot.

Reding testified that he is a self-employed automobile mechanic. Reding stated that during the day of May 12, he "spot-primed" a car for painting. Reding testified that during this process he closes the door to the shop to prevent dust from getting on the car. He did not wear a mask when he "spot-primed" the car. At approximately 5 p.m. Reding went to Wuilleimier's home to return a truck he had worked on. He drank two 12-ounce beers and left at approximately 6:15 p.m.

Reding testified that he then returned to his shop and met the Burnidges. Reding and Ronald, Jr., took a car for a test drive. The Burnidges left at approximately 7:25 p.m. Reding testified that he then spray painted both sides of the back half of the car that he had primed earlier. This activity took approximately 30 to 40 minutes, and he felt no ill effects from inhaling the paint fumes.

Reding testified that he left his shop at approximately 7:45 p.m. and drove home. Reding was not wearing sunglasses, and, even though the sun was on the horizon, he could see cars traveling in the opposite direction. Reding stated that he approached his driveway, looked ahead, activated his turn signal and began to cross the left lane into his driveway. Reding did not see or hear the motorcycle. Reding heard the collision. He got out of his truck and discovered the motorcycle and rider on the ground. Reding testified that he then ran to his house and called for assistance.

Additionally, Reding testified that he complied with Officer Bumgarner's request to perform the field sobriety tests. Bumgarner then transported Reding to the police station and administered a breath test. Reding testified that he did not drive under the influence of alcohol on May 12.

On cross-examination, the State questioned Reding regarding his prior use of alcohol. Defendant objected to these questions and immediately moved for a mistrial. The objections were sustained, but the court denied defendant's motion for a mistrial.

Reding further testified that for the past 30 years he has suffered from a condition that causes his eyes to appear bloodshot. Finally, Reding testified that after he was charged with the instant offense, he emptied the paint from the spray gun he was using on May 12 into a can, sealed it, put it in a plastic bag and labeled it.

Cynthia Peterson, an analytical chemist for R.V. Fitzsimmons & Associates, testified that in August 1986 she analyzed the can of paint which Diane Reding brought to the lab. Peterson indicated that her analysis revealed the paint sample was roughly 70% volatile -- with 23% of the volatility deriving from isopropanol, 22% from toleune, 22% from acetone, 17% from methyl isobutyl ketone, and 16% from ethanol.

Marshall Dunning, a teaching assistant in the biological sciences department at the University of Wisconsin, testified that he was familiar with the blood-alcohol content Verifier breathalyzer machine. He opined that it was not a reliable or accurate means of measuring breath alcohol and equating it with the amount of alcohol in the blood. Dunning based his opinion on the fact that the breathalyzer fails to take into account the possibility that an individual's body temperature at the time he takes the test may be higher than normal. Additionally, the variation of gas distribution (the concentration of gases within the lungs) and gas diffusion (the movement of gases across the lungs) is different among individuals. Also, individual breathing patterns vary, and it is likely that persons have varying solubility ratios and not simply the 2,100:1 ratio built into the machine.

Dunning testified that he conducted a series of tests on Reding on October 14, 1986, and determined that his actual solubility ratio was 1,682:1. Additionally, there was a maldistribution of air within Reding's lungs in the amount of 8%. Dunning explained that his findings demonstrated that the .12% blood-alcohol content reported by the breathalyzer on May 12 was 28% too high, and Reding's highest possible blood-alcohol reading on that date was .0864%. Dunning further testified that while the breathalyzer screens out the chemical acetone, chemicals such as isopropanol, toleune, and methyl isobutyl ketone pass through undetected and may affect the blood-alcohol reading.

On cross-examination, Dunning indicated that he performed the tests on Reding three times and did not notice any water condensation in his syringe which may have affected his findings.

Larry Ciupik, an astronomer for the Adler Planetarium in Chicago, testified concerning an investigation he conducted to determine the location of the sun at the approximate time of the accident. Ciupik's testimony consisted essentially of the following: the sun was very bright above the horizon prior to 8 p.m.; the sun set at 8:04 p.m.; the sun was approximately 27 degrees to the north of the point of impact; the effect of the sun was to take up the entire roadway in front of Reding; and a motorcycle headlight would be very difficult to see in the face of the sun as it appeared that day.

Merrill Allen, a professor of optometry at the University of Indiana, opined that it was virtually impossible for a reasonable and prudent motorist in Reding's position to detect the motorcycle and, thus, avoid the accident. Allen based his opinion on the following facts: the nature of Plank Road is such that the truck driver will have just adapted to the bright sun in the sky when, several hundred feet prior to the collision site, the roadway straightens, and the sun is at an angle producing glare; the driver's eyes have not yet adjusted to the new condition; the position of the sun is such that the motorcycle is indiscernible from the shadows of the trees in the background; the motorcycle headlight, while visible, would appear to the truck driver as simply a bright spot, possibly the glare of a beer can, located in the grass by the road; the truck driver's sun visor would be useless since the sun was only one or two degrees above the horizon; the inability of the truck driver to simply stop and "wait out the glare" before beginning his turn, since to do so would risk being hit from behind by another vehicle; the motorcyclist, with the sun to his back, should have had a good view of the truck driver for at least 200 feet prior to the accident; and the prudent driver, upon seeing nothing in the other lane, properly begins a turn across the opposite lane of traffic. Allen acknowledged during cross-examination that a .12% blood-alcohol content would slow reaction time, decrease observance of traffic safety, and reduce peripheral vision.

On rebuttal, Dr. Brown indicated that he reviewed Cynthia Peterson's reports concerning the chemical makeup of the paint used by Reding on May 12 and determined that the chemicals could, if inhaled in a sufficient quantity, affect the blood-alcohol reading obtained from a breathalyzer test. However, Dr. Brown noted that unless Reding experienced dizziness, severe headaches, nausea or vomiting, he would not have inhaled a significant quantity of the chemicals to interfere with the accuracy of the breathalyzer test. Brown also stated that the only way a person's solubility ratio could be less than 2,100:1 is if that individual had a significantly elevated body temperature.

During the instructions conference, the State tendered Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) (hereinafter IPI Criminal 2d), which reads as follows:

"If you find that the amount of alcohol in the defendant's blood as shown by a chemical analysis of his breath was .10 percent or more by weight of alcohol, you shall presume that the defendant was under the influence of intoxicating liquor.

However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of intoxicating liquor."

The court subsequently gave this instruction over defense counsel's objection.

In addition, defense counsel tendered IPI Criminal 2d No. 23.05, which states:

"A person is under the influence of intoxicating liquor when as a result of drinking any amount of intoxicating liquor his mental and/or physical faculties are so impaired as to reduce his ability to think and act with ordinary care."

The court gave this instruction without State objection.

The jury returned a verdict finding Reding guilty of the offense of reckless homicide. On April 16, 1987, Reding was sentenced to a probation term of 24 months, periodic imprisonment for four weekends, a $500 fine, and court costs. Notice of appeal was filed on May 15, 1987.

Defendant's first contention is that the court erred in admitting evidence of his blood-alcohol content without first determining that the testing procedures were reliable. In a reckless homicide case, the admissibility of the results of a blood-alcohol analysis is governed by the ordinary standards of admissibility. (People v. Murphy (1985), 108 Ill. 2d 228, 234; People v. Durbin (1985), 138 Ill. App. 3d 895, 898.) A particular piece of evidence is admissible if it is both relevant and material. (People v. Miller (1977), 55 Ill. App. 3d 136, 139.) Relevancy and materiality relate to whether the evidence offered tends to prove a disputed fact or renders the matter in issue more or less probable. (People v. Tribett (1981), 98 Ill. App. 3d 663, 679.) The admission of evidence is within the sound discretion of the trial court, and its decision will not be disturbed absent a clear showing of abuse of discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56.

In support of his contention, defendant cites Murphy (108 Ill. 2d 228) and People v. Emrich (1986), 113 Ill. 2d 343. In Murphy, the defendant was the driver of an automobile. As a result of an accident, a passenger in the vehicle sustained fatal injuries. The defendant was taken to a nearby hospital, and, in the course of emergency treatment for her injuries, a blood sample was taken. A chemical analysis of the sample disclosed a certain level of alcohol in the defendant's blood. The defendant was indicted for reckless homicide and sought to suppress the results of the blood analysis. The defendant argued that since the laboratory and technicians at the hospital in question had not been certified as provided for in section 11-501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2), the results should not have been admissible. The court, in holding that the statutory procedures need not be followed, stated:

"The certification requirements are a protection afforded an accused to insure that the results of testing called for by law-enforcement officers in driving-under-the-influence cases are reliable. In other situations, as here, the ordinary standards of admissibility will be applied.

There was no doubt in the trial Judge's mind as to validity and accuracy of the testing in the hospital laboratory. He described the hospital laboratory as 'superlative' and said that it more than satisfied professional standards; that Ms. Cruz was well qualified; and that Dr. Serna was a highly trained clinical pathologist." Murphy, 108 Ill. 2d at 234-35.

In Emrich, the factual situation was similar to that presented in Murphy. The court reaffirmed that the statutory procedures need not be adhered to in a reckless homicide case. However, the central question in Emrich was the accuracy of the test performed. While the court did find that the blood sample was "spoiled" because certain preservatives were not contained in the vial used to store the sample, it could not resolve the question pertaining to the accuracy of the test. The court, citing its decision in Murphy, stated:

"In the absence of a finding by the trial Judge on the factual question of the accuracy of Rotterman's test, this court simply has no basis for determining whether the results of that test are admissible." (Emrich, 113 Ill. 2d at 352.)

The court instructed the trial court to review the record, or to conduct further evidentiary hearings if needed, to determine if the test was sufficiently accurate to permit the ...


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