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June 29, 1994


Appeal from the Circuit Court of Perry County. Nos. 93-TR-746, 93-TR-747, and 93-TR-748. Honorable William A. Schuwerk, Jr., Judge Presiding.

Welch, Chapman, Goldenhersh

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

The State appeals from the order of the circuit court of PerryCounty, which granted the petition of defendant, Sammy R. Easterly, seeking rescission of the statutory summary suspension of his privilege to drive. We reverse and remand for further proceedings.

On May 8, 1993, defendant was arrested for driving under the influence of alcohol, as a result of a traffic stop for improper lane usage and failure to signal when required. He was taken to the police station, where he took a breathalyzer test which showed a blood alcohol content (BAC) of .10. His driver's license was suspended based on this test.

On June 14, 1993, a petition to rescind the statutory summary suspension was filed. On July 27, 1993, the State and the defendant stipulated to certain facts, including that defendant's breathalyzer test registered a BAC of .10, the blankair standard and internal calibration as reflected in the test record indicated that the breathalyzer was operating properly at the time the test was conducted, and the breathalyzer had been tested and certified on April 14, 1993. The instrument was tested with a .10 simulator solution on that date and produced two readings of .09. A copy of the relevant page of the breathalyzer log book, showing both the certification tests and defendant's breathalyzer test, was appended to the stipulation as a part thereof.

On July 27, 1993, the circuit court entered an order rescinding defendant's statutory summary suspension on his petition. The order stated:

"The intoxilyzer 3000 used to test the defendant had most previously [sic] been tested on April 14, 1993, with a .10 simulator solution which produced a .09 reading.

Based upon the evidence, the Court believes that the defendant has met his burden that the chemical test administered failed to disclose an accurate concentration of 0.10 or more."

The State argues that the circuit court improperly rescinded defendant's statutory summary suspension because of the alleged inaccuracy of the testing. We agree.

A hearing for summary suspension of a driver's license is a civil proceeding at which the suspended motorist bears the burden of proof. ( People v. Graney (1992), 234 Ill. App. 3d 497, 503, 599 N.E.2d 574, 580, 174 Ill. Dec. 790.) The motorist must meet the burden of proof by a preponderance of the evidence. ( People v. Huisinga (1993), 242 Ill. App. 3d 418, 421, 610 N.E.2d 168, 171, appeal denied (1993) 151 Ill. 2d 571, 616 N.E.2d 341.) Whether a defendant has met this burden of proof is a question of fact for the trial Judge, and this determination cannot be overturned on review unless it is against the manifest weight of the evidence, that is, unless an opposite Conclusion is clearly evident from the record. Huisinga, 242 Ill. App. 3d at 421, 610 N.E.2d at 168.

The suspension of one's privilege to drive may be challenged on four grounds only: (1) whether the motorist was placed under arrest for an offense as defined in section 11-501 of the Illinois Vehicle Code (625 ILCS 5/11-501 (West 1992)) or similar ordinance; (2) whether the arresting officer had reasonable grounds to believe that the motorist was driving or in actual physical control of a motor vehicle upon the highway while under the influence; (3) whether the motorist, after being advised of the consequences, either refused to submit to testing or took a test and failed to complete it properly; or (4) whether the motorist submitted to testing after advisement and the test results revealed a BAC of 0.10 or greater. 625 ILCS 5/2-118.1 (West 1992).

Defendant herein attacked his suspension on only the fourth basis, asserting that his test result showing a BAC of 0.10 was unreliable. Elements of a prima facie case attacking breathalyzer test results as unreliable include whether the test was properly administered by the breathalyzer operator, whether the result was accurate and trustworthy, and whether the Department of Public Health rules were violated. ( People v. Bulman (1991), 212 Ill. App. 3d 795, 801, 571 N.E.2d 850, 855, 156 Ill. Dec. 870.) Absent proof of these factors, a motorist fails to establish a prima facie case for rescission of his suspension. ( People v. Gryczkowski (1989), 183 Ill. App. 3d 1064, 1070, 539 N.E.2d 1360, 1364, 132 Ill. Dec. 554.) Defendant's attack ...

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