Appeal from Circuit Court of Livingston County-Nos. 98TR3188 98TR3189 Honorable Charles H. Frank, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In May 1998, defendant Greg D. Hall was cited for two overweight trucking violations, overweight on registration (625 ILCS 5/3-401(d) (West 1998)) and overweight on axle load (625 ILCS 5/15-111(a) (West 1998)). In March 1999, defendant filed a motion in limine. In April 1999, the trial court denied defendant's motion. That same month, during the jury trial, the trial court reaffirmed its denial of defendant's motion in limine. Following the trial, the jury found defendant guilty of both violations and the court ordered defendant's bond, totaling approximately $4,200, to stand as fines and costs. Defendant filed a motion to reconsider the court's denial of his motion in limine, which the court denied.
Defendant appeals the court's denial of his motion in limine, arguing that (1) the regulations promulgated by the Director of the Illinois Department of Agriculture (Department) relating to the testing and certification of law enforcement scales are unconstitutional, and (2) the evidence of the weight readings from police scale No. 270 was inadmissible because the scales were not properly tested and certified for use in the field. We affirm.
In May 1998, defendant was driving a 1990 Mack three-axle garbage truck on Illinois Route 23 in Livingston County. Illinois State trooper Vern Owens conducted a traffic stop on defendant's vehicle. Trooper Owens weighed defendant's vehicle using a portable axle load weigher, police scale No. 270. Trooper Owens determined that defendant's truck was overweight and issued defendant two citations, one for overweight on registration, 9,300 pounds in excess (625 ILCS 5/3-401(d) (West 1998)), and the other for overweight on axle load, 15,200 pounds in excess (625 ILCS 5/15-111(a) (West 1998)).
In March 1999, defendant filed a motion in limine to exclude any evidence of the weight results of scale No. 270. In 1994, the Department amended the Illinois Administrative Code (Administrative Code) to exempt law enforcement vehicle scales from the application and testing requirements of National Institute of Standards and Technology Handbook 44 (Handbook 44), which sets forth the specifications, tolerances, and regulations for commercial weighing and measuring devices in Illinois, and to adopt a regulatory section pertaining to such scales. 8 Ill. Adm. Code §§600.300, 600.320, at 1676 (1992-93) (as amended and added, respectively, by 18 Ill. Reg. 14692 (effective September 13, 1994)). Defendant argued both that (1) these amendments are unconstitutional because the amendments resulted from the Department's unauthorized exercise of legislative power, and (2) the Department applies the amendments arbitrarily. In the alternative, defendant argued that the Department applies these rules and regulations arbitrarily. In addition, defendant argued that the weight tickets were inadmissible because scale No. 270 was not properly tested and certified for use according to the standards set out in Handbook 44 and, as such, the results are invalid and inadmissible. The trial court heard arguments on the constitutional issues only, reserving ruling on the admissibility of the weight tickets for trial. The trial court denied defendant's motion in limine on the constitutional issues. The following day, the day of trial, the court noted that defendant's motion in limine only raised one constitutional issue, the unauthorized exercise of legislative power by the Department. While arguing the motion, though, defense counsel raised an additional constitutional issue, namely, that the agency's rules and regulations arbitrarily treat different groups differently, applying one standard for commercial weighing and another standard for law enforcement weighing. As a result, the trial court informed counsel that it would allow counsel time at the end of the trial to present additional evidence and argument other than that which was stipulated and presented at the hearing on the motion in limine.
At trial, after the testimony of the State's expert, Sidney A. Colbrook, and Illinois State trooper Vern Owen, the person who weighed defendant's vehicle, the State attempted to admit into evidence as an exhibit the weight tickets, the remaining issue raised in defendant's motion in limine. The trial court heard argument from the parties regarding the admissibility of the weight tickets. In sum, defendant argued that scale No. 270 was not tested in accordance with Handbook 44 and, as a result, insufficient evidence of accuracy was presented to permit the admission of the weight tickets. Relying on People v. Kautz, 272 Ill. App. 3d 444, 651 N.E.2d 772 (1995), as well as the testimony of Colbrook and Owen, the trial court determined that the evidence was sufficient to find the weight tickets reliable and accurate. The court admitted the weight tickets into evidence, and the trial continued.
The evidence was undisputed that scale No. 270 was not tested in accordance with the standards set out in Handbook 44. The scale was, however, tested in accordance with the rules and regulations promulgated by the Department. After both parties rested, but before closing arguments, the trial court asked if defense counsel had additional evidence on the constitutional arguments raised in defendant's motion. Defense counsel presented no additional evidence. The trial court affirmed its earlier ruling, denying defendant's motion in limine. The jury found defendant guilty of overweight on registration (625 ILCS 5/3-401(d) (West 1998)) and overweight on axle load (625 ILCS 5/15-111(a) (West 1998)). Defendant filed a motion to reconsider the trial court's order denying its motion in limine and a memorandum in support thereof. The record contains no response by the State. Defendant's motion was set and heard June 11, 1999. No transcript of the proceeding is in the record; however, the docket entry shows that the trial court denied defendant's motion to reconsider. The trial court ordered defendant's bond, approximately $4,200, to stand as fines and costs. Defendant appealed.
Defendant argues that the trial court erred in denying defendant's motion in limine, thereby allowing the State to introduce evidence of the weight readings from scale No. 270. In support of defendant's argument, defendant contends that the Department's rules and regulations at issue are unconstitutional because (1) the Department acted beyond its scope of authority when it amended the regulations relating to the testing and certification of law enforcement scales, and (2) by exempting the law enforcement vehicle scales from the rigorous testing standards of Handbook 44, requiring the use of one standard for commercial scales and another standard for law enforcement scales, the Department applies these rules and regulations arbitrarily. Defendant alternatively argues that because scale No. 270 was not tested and certified in accordance with the standards set out in Handbook 44 for use in the field, any weight results from the scale relating to defendant in the present case are invalid and inadmissible.
The State contends that defendant lacks standing to challenge the regulations at issue because defendant presented no expert evidence to show that the different standards for certification of commercial scales and law enforcement scales could produce gross inaccuracies, thereby resulting in injury to defendant.
We note that the State argues the issue of standing for the first time in its appellate brief. The general rule prevails that a defense not raised in the trial court is forfeited and may not be raised for the first time in the reviewing court. Jensen Disposal Co. v. Town of Warren, 218 Ill. App. 3d 483, 486, 578 N.E.2d 605, 607 (1991), citing Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147, 324 N.E.2d 417, 420 (1975). Therefore, we conclude that the State has forfeited this issue. Even if we were to address this issue, we would conclude the record ...