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People v. Bonutti

April 4, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT AND SEPARATE-APPELLEE,
v.
BORIS P. BONUTTI, DEFENDANT-APPELLEE AND SEPARATE-APPELLANT.



Appeal from the Circuit Court of Effingham County. No. 01-DT-90 Honorable Sherri L. E. Tungate, Judge, presiding.

Justices: Honorable Thomas M. Welch, J. Honorable Terrence J. Hopkins, P.J., and Honorable Richard P. Goldenhersh, J., Concur

The opinion of the court was delivered by: Justice Welch

PUBLISHED

We have before us appeals from two orders entered by the circuit court of Effingham County. The plaintiff, the People of the State of Illinois (the State), appeals an order granting a motion by the defendant, Boris P. Bonutti, to suppress the results of a breath-alcohol test. The defendant appeals an order denying his request to rescind the statutory summary suspension of his driving privileges. For the reasons that follow, we affirm both orders.

The facts in this case are as follows. On April 26, 2001, at approximately 11:04 p.m., the defendant's vehicle was stopped by officer Richard Largen of the Illinois State Police for speeding. Officer Largen conducted field sobriety tests on the defendant, the driver of the vehicle. According to Officer Largen, the defendant failed these tests, was arrested, and was cited for driving under the influence of alcohol.

The defendant was then transported to the Effingham County sheriff's department, where he agreed to take a breath-alcohol test. Officer Largen observed the defendant for 20 minutes prior to administering the test. Officer Largen did not observe the defendant regurgitate before taking the test. The results of the test indicated that the defendant had a blood-alcohol content of 0.174. The defendant's driving privileges were immediately suspended pursuant to section 11-501.1(c) of the Illinois Vehicle Code (Code) (625 ILCS 5/ 11-501.1(c) (West 2000)). On May 21, 2001, the Secretary of State confirmed the statutory summary suspension of the defendant's driving privileges.

On July 26, 2001, the defendant filed a "Request for Judicial Hearing" seeking a rescission of the statutory summary suspension of his driving privileges. The defendant alleged that the breath test taken on April 27, 2001, was unreliable because the administration of the test did not conform to the procedures outlined by section 11-501.2 of the Code (625 ILCS 5/11-501.2 (West 2000)). Specifically, the defendant alleged that he had not been continuously observed for 20 minutes prior to the testing and, because he had not been continuously observed, the "absence of regurgitation during the observation period was not confirmed prior to obtaining a breath sample." Essentially, the defendant claimed that he regurgitated within 20 minutes of taking the test.

A hearing was conducted on September 10, 2001, pursuant to the defendant's petition seeking a rescission of the statutory summary suspension. Officer Largen was called by the defendant to testify. Officer Largen testified that the defendant was arrested on April 26, 2001, cited for driving under the influence of alcohol, and transported to the Effingham County sheriff's department, where the defendant agreed to submit to a breath test. Officer Largen was the only person involved with the administration of the breath test.

At 11:50 p.m., Officer Largen read the standard "Warning to Motorists" to the defendant. At 12:01 a.m., Officer Largen began preparing the breath-test machine. Officer Largen spent about three minutes entering data into the machine, during which time he kept his "eye on [the defendant]." The test was administered at approximately 12:05 a.m.

Officer Largen was aware that he was required to continually observe the defendant for at least 20 minutes prior to the defendant taking the test. Officer Largen understood that this is to ensure that the defendant does not "regurgitate, or belch, or anything like that." Officer Largen was cognizant that a regurgitation could result in the presence of mouth alcohol and that the presence of mouth alcohol can affect the accuracy of a breath test and, hence, render it untrustworthy. However, Officer Largen testified that he observed the defendant at all times during the defendant's custody and that, during that time, the defendant did not burp, belch, or regurgitate. Officer Largen did acknowledge that at some point prior to taking the test, the defendant requested a glass of water, but he stated that this request was denied.

The defendant testified on his own behalf. The defendant acknowledged that he was arrested for driving under the influence of alcohol and taken to the Effingham County sheriff's department, where he agreed to take a breath test. However, the defendant claims that he regurgitated during the 20 minutes before he took the test.

The defendant testified that he suffers from esophageal reflux disorder. He testified that one of the effects of his condition is that acid from his stomach rises through his esophagus and enters the back of his throat. When this occurs, he experiences pain that he described as similar to "a heart attack." The defendant testified that during the 20 minutes before he took the test, he experienced this pain. The defendant did not tell anybody at the department that he had regurgitated prior to taking the test, but he claimed that he did ask for a glass of water in order to relieve the burning sensation. The defendant stated that he did not tell anybody at the department that he had this condition, because nobody asked. The defendant testified that he takes Prilosec to help control the symptoms he experiences from esophageal reflux.

After the defendant presented his evidence, the State made a motion for a judgment. The State argued that the testimony of Officer Largen provided sufficient evidence that the defendant had been observed for more than 20 minutes prior to taking the test and that Officer Largen had observed no conduct that would put in question the reliability of the breath-test results. The State also asked the trial court to find that the defendant was not credible.

The trial court denied the State's motion and stated, "[A]t this point there has been testimony presented for the Court to consider eventually what weight to put to that, but there has been at least ...


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