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06/14/95 PEOPLE STATE ILLINOIS v. WILLIAM KAUTZ AND

June 14, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
WILLIAM KAUTZ AND KIM BISHOP, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. Nos. 93-TR-118772, 93-TR-118778, 93-TR-128335, and 93-TR-128337. Honorable John G. Radosevich, Judge, Presiding.

As Amended September 14, 1995.

Presiding Justice McLAREN delivered the opinion of the court: Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

On November 8, 1993, Lake County police stopped defendant William Kautz in the vicinity of Illinois Route 83 and 60 in Lake County. On November 23, 1993, Lake County police stopped defendant Kim Bishop in the vicinity of Illinois Route 83 and Winchester Road in Lake County. The police stopped and weighed defendants' garbage trucks on portable police scale No. 255 pursuant to the Illinois Vehicle Code which provides:

"Any police officer having reason to believe that the weight of a vehicle and load is unlawful shall require the driver to stop and submit to a weighing of the same either by means of a portable or stationary scales. If such scales are not available at the place where such vehicle is stopped, the police officer shall require that such vehicle be driven to the nearest available scale that has been tested and approved by the Illinois Department of Agriculture." 625 ILCS 5/15-112(a) (West 1992).

Scale No. 255 indicated that the defendants' trucks were overweight. The weight was recorded on a weight ticket. Accordingly, the police issued the defendants tickets and complaints which stated that their second and third axles were overweight and that they lacked proper registration. The weight tickets state that Kautz's second and third axles weighed 45,200 pounds (5,200 pounds overweight) and that Bishop's second and third axles weighed 47,100 pounds (7,100 pounds overweight). If found guilty, Kautz and Bishop would be subject to fines of $985 plus costs, and $1,550 plus costs, respectively.

In Illinois, a weight ticket taken from a certified scale is sufficient to make a prima facie case against a defendant. ( People v. Freehill (1970), 129 Ill. App. 2d 234, 238, 262 N.E.2d 604.) Accordingly, at the bench trial the State attempted to admit into evidence the weight tickets taken from scale No. 255 indicating that the defendants' trucks were overweight. However, defendants filed a motion to suppress the weight tickets, arguing that the scale was improperly tested. The trial court granted defendants' motion to suppress the weight tickets. The State appeals the trial court decision to suppress the weight ticket evidence and seeks remand. We affirm.

Before granting defendants' motion, the trial court heard the following evidence. The Illinois Department of Agriculture placed portable police scale No. 255 (scale No. 255) in service on June 17, 1993, after inspection and testing. Scale No. 255 is an accuracy class IIII, portable, pitless, digital automatic indicating, automatic zero setting, vehicle scale and is divided Into three sections. Each section can weigh up to 40,000 pounds. On October 19, 1993, Delbert Ford, an inspector for the Illinois Department of Agriculture, Bureau of Products Inspection and Standards (Bureau), performed the "increasing load test" and reinspected scale No. 255 inside the Department of Transportation facility at the State fairgrounds in Springfield, Illinois. After testing and inspection, Ford affixed decalcomania numbers 36263, 36264, and 36265 on each of the three scale sections. The Department of Agriculture then sent the scale to Lake County, Illinois, where the scale was eventually used to weigh defendants' garbage trucks in November 1993. Scale No. 255 was tested again in Springfield on January 5, 1994.

At the hearing to suppress, defendants argued that the Weights and Measures Act (225 ILCS 470/2 et seq. (West 1992)) and Rules and Regulations of the Illinois Department of Agriculture ยง 600.300 (1993) require police scales to be tested for conformance with the United States Department of Commerce Technology Administration National Institute of Standards and Technology Handbook 44 (Handbook 44). Handbook 44 delineates specifications, tolerances, and other technical requirements for weighing and measuring devices. The Weights and Measures Act provides in relevant part:

"(12) 'Certificate of Conformance' means a document issued by the National Bureau of Standards based on testing in participating laboratories which indicates that the weights and measures or weighing and measuring device conform with the requirements of National Bureau of Standards' Handbooks 44, 105-1, 105-2, or 105-3, and any subsequent revisions or supplements thereto." 225 ILCS 470/2(12) (West 1992).

Section 600.300 of the Rules and Regulations of the Illinois Department of Agriculture (1993) provides in relevant part:

"(a) All vehicle scales shall comply with the requirement of the National Bureau of Standard's Handbook 44, which is adopted in Section 8 of the Weights and Measures Act [Ill. Rev. Stat. 1987, ch. 147, ...


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