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People v. Barwig

October 9, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EARL BARWIG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Franklin County. Nos. 01-DT-55, 01-DT-56, 01-TR-887, & 01-TR-888 Honorable Leo T. Desmond, Judge, presiding.

Justices: Honorable Gordon E. Maag, P.J. Honorable Richard P. Goldenhersh, J., and Honorable Thomas M. Welch, J., Concur

The opinion of the court was delivered by: Presiding Justice Maag

On February 25, 2001, Earl Barwig (defendant) was cited for driving while under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2000)), driving while having a blood-alcohol concentration in excess of .08 (625 ILCS 5/11-501(a)(1) (West 2000)), speeding (625 ILCS 5/ 11-601(b) (West 2000)), and improper lane usage (625 ILCS 5/11-709 (West 2000)). Defendant filed a petition to rescind his statutory summary suspension, and a hearing was held. The circuit court entered an order denying defendant's petition to rescind. Additionally, defendant challenged section 7-4-8 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/7-4-8 (West 2000)) on constitutional grounds. The circuit court declined to find a constitutional violation. Defendant filed a timely notice of appeal.

The relevant facts are as follows. Steve Mumbower, the arresting officer, had written a sworn report on the same date as the offense. The report stated as follows: "I saw a truck swerving from one side of the road to the other and speeding[.] [T]he driver then refused all field sobriety test [sic] and said he had 10 or 12 beers[.] [A]lso[,] he was unable to keep his balance while standing." The sworn report also shows a breath test result of .183.

On March 9, 2001, defendant filed a petition to rescind his statutory summary suspension. Defendant claimed that he was not properly placed under arrest for driving under the influence of alcohol, that the arresting officer did not have reasonable grounds to believe that defendant was driving or in actual physical control of a motor vehicle while under the influence of alcohol, and that defendant was not properly warned by the arresting officer as provided in section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West 2000)). Defendant supplemented the petition to rescind on April 3, 2001. The supplement stated as follows: "Defendant submitted to the requested test or tests, but the test sample of Defendant's blood[-]alcohol concentration did not indicate a blood[-]alcohol concentration of 0.08 or more[,] and the arresting officer did not follow te [sic] standards prescribed by Illinois law in administering the test." On that same date, defendant also filed a motion in limine seeking to prohibit the State from using his breath test results. Among defendant's complaints was that the logbook failed to disclose the entry of any record that defendant was tested on February 25, 2001. We note that the breath-analysis-instrument log shows that the breath test instrument was certified accurate by Clyde Matthews on February 13, 2001.

On April 4, 2001, a hearing was held on the petition to rescind. Mumbower, a patrol officer with the West City police department, testified that the majority of his work over the preceding two years had been with driving-under-the-influence arrests. He stated that West City adjoins Benton. He agreed that if he were in Benton while on patrol, he would use his radar, although he would not stop someone in Benton for speeding. Mumbower stated that he had made driving-under-the-influence stops in Benton in the past.

Mumbower stated that on the evening in question he went to Benton looking for a suspect in an unrelated incident. While Mumbower was in Benton, he saw defendant's truck going from one side of the road, outside his lane of traffic, to the other side. Mumbower activated his radar and clocked defendant going 36 miles per hour. Mumbower activated his siren and lights and eventually stopped defendant at his home.

Although defendant was asked to perform field sobriety tests, he refused. Defendant then became argumentative. Mumbower testified that three Benton police officers and another West City police officer were present after defendant was stopped. Defendant was transported to the Franklin County jail, where he was given the warning to motorist and was handed a written copy of the warning so that he could review the form. Mumbower agreed that a logbook goes with the machine, but he stated that there were no blank sheets for this instrument at the Franklin County sheriff's department. Mumbower claimed that to the best of his recollection, defendant blew a sufficient sample the first time. Although he stated that defendant may have blown twice into the instrument, he would have had a receipt showing that defendant had given an insufficient sample, and he did not have such a receipt. Mumbower also stated that he never saw defendant burp or regurgitate during the 20-minute observation period. Mumbower agreed that he had left defendant for a few seconds, but he stated that he was able to watch him while doing so.

Melvin Dixon, Benton's police chief, testified that the merit system looks at every police officer to be hired by the city and recommends to the city council whether a particular individual should be hired. Dixon was unaware of any intergovernmental agreements between Benton and West City regarding the joint use of police forces. He was also unaware of West City police officers patrolling in Benton. Dixon claimed that he had no power to discipline a West City police officer.

The State moved for a "directed finding" at the conclusion of the hearing. Defendant responded, in relevant part, by claiming that the defense had shown a problem with the breath test. Defendant claimed that there was a risk of contamination, because Mumbower had not entered the breath test results in the logbook. The circuit court took under advisement defendant's argument that his arrest was constitutionally invalid, but it found in favor of the State on other grounds. Attached to defendant's trial brief is a copy of a Benton city ordinance that states that the mayor has the duty to appoint members of the board of police and fire commissioners and that the police chief is to be appointed by the mayor with the advice and consent of the city council.

The circuit court issued an order on May 24, 2001, denying the remainder of defendant's petition to rescind. The court determined that defendant's arrest in Benton by a West City police officer was permitted pursuant to sections 7-4-7 and 7-4-8 of the Municipal Code (65 ILCS 5/ 7-4-7, 7-4-8 (West 2000)), because section 7-4-7 created "police districts" and section 7-4-8 gave the police within the district "full authority and power as peace officers." The court stated that this enabled the police officers within the police district to go into any part of the police district to exercise that authority and power. Although defendant challenged section 7-4-8 on constitutional grounds, the circuit court declined to find a constitutional violation. Defendant filed a timely notice of appeal.

Initially, defendant contends that the circuit court erred in denying his petition to rescind his statutory summary suspension on the ground that his breath test result was unreliable. More specifically, defendant claims that because Mumbower failed to log the "purported test or tests" in the official records of the Franklin County sheriff's department, the tests are inadmissible hearsay. We disagree.

Mumbower testified that he personally conducted a breath test on defendant. The results of that test were not admitted into evidence; therefore, no hearsay evidence was admitted regarding defendant's breath alcohol content.

Defendant also claims that Mumbower's testimony established that he failed to follow the guidelines and operational standards established by the Illinois Department of Public Health. The gist of defendant's argument is that a record of defendant's breath-alcohol-content test must be maintained in a logbook. Defendant claims that if a record of the test is not kept in the logbook, then the evidence is "unrebutted" and the "suspension of the defendant's driving privileges must be rescinded." We disagree.

In People v. Orth, 124 Ill. 2d 326, 337-38, 530 N.E.2d 210, 215 (1988), the Illinois Supreme Court stated that because a statutory summary suspension hearing is a civil action, not a criminal action, a defendant who requests the judicial rescission of a suspension bears the burden of providing, inter alia, prima facie evidence of an alcohol test's unreliability. In meeting the initial burden of proof of showing a test result's unreliability, the defendant's evidence "may consist of any circumstance which tends to cast doubt on the test's accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol." Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217. A circuit court's finding regarding a prima facie case will not be reversed unless it is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217. For a ...


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