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12/08/94 PEOPLE STATE ILLINOIS v. ALAN D. ROSE

December 8, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ALAN D. ROSE, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Jersey County. Nos. 93TR979, 93TR980. Honorable Thomas G. Russell, Judge Presiding.

As Corrected February 1, 1995.

Honorable James A. Knecht, P.j., Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Alan Rose, defendant, was charged with driving under the influence of alcohol (DUI), a violation of section 11-501 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501 (West 1992)). Prior to his trial, defendant made a motion in limine to exclude from evidence the results of a preliminary breathalyzer test (PBT) given to him pursuant to section 11-501.5 of the Code (625 ILCS 5/11-501.5 (West 1992)). The trial court granted the motion in limine, and the State appeals. We affirm.

The following facts are not in dispute. On April 23, 1993, defendant was arrested for DUI and speeding. On February 14, 1994, defendant filed a motion in limine to exclude from his trial evidence obtained from a PBT given him at the time of the arrest. Defendant alleged the State had no statutory or other authority to admit the results of a PBT in the State's case in chief or during rebuttal.

A hearing on the motion was held, and the parties stipulated to the following facts:

"1. On April 23, 1993, at 10:22 p.m., Illinois State Trooper Juan Lingow stopped a motorcycle driven by defendant Alan B. Rose on Illinois Route 16 in Jersey County, Illinois.

2. Trooper Lingow would testify as follows:

a. That he stopped defendant for the offense of speeding (64 in a 55) and that while stopping defendant, observed defendant cross the centerline before pulling onto the shoulder.

b. That he detected a moderate odor of an alcoholic beverage coming from defendant's breath and observed defendant to be unsteady on his feet.

c. That defendant refused to perform field[-]sobriety tests stating that defendant had had too much to drink and would fail it anyway.

d. That at 10:41 p.m., Trooper Lingow administered a preliminary breath test to defendant with an ALCO-SENSOR (digital readout) unit, manufactured by Intoximeters, Inc., 1901 Locust Street, St. Louis, Missouri 63101; said test disclosing a [blood-alcohol content (BAC)] of .156.

e. That the above[-]described unit had been certified as accurate on April 16, 1993[,] and May 21, 1993[,] to within error not in excess of plus or minus .01; that the unit was operated in accordance with manufacturer's specifications and operating procedures.

f. That Trooper Lingow placed defendant under arrest for the offenses of Speeding and DUI.

g. That at 11:55 p.m. Trooper Lingow read the Statutory Warning to Motorist to defendant; that at 12:19 a.m., April 24, 1993, defendant tested .14 BAC on the Intoxilizer 5000 breath test unit at the Jersey County Sheriff's Office.

h. That Trooper Lingow was at the time of the arrest [a] certified Breath Analyzer Operator, and that his training included a course on the operation of the unit.

3. That in complying with discovery, defendant notified the State that he intended to call an expert witness to testify as to the expert's opinion regarding defendant's BAC at the time of the arrest as opposed to the time of the test.

4. That in complying with discovery, the State notified the defendant that it intends to use the results of the preliminary breath test in either its case in chief or as rebuttal evidence should defendant claim ...


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