Appeal from the Circuit Court of Cook County. Honorable Nancy J. Arnold, Judge Presiding.
The opinion of the court was delivered by: Justice South
This appeal by defendant, Jesse White, the Secretary of State of Illinois (Secretary), arises from an order of the circuit court of Cook County reversing a final administrative decision to suspend plaintiff Ryan Gumma's driver's license for violation of the "zero tolerance" law.
The relevant facts are as follows: On September 22, 2000, Barrington police officer Scott Basel arrested the 20-year-old plaintiff after observing his vehicle go over a curb and his failure to stop at two stop signs. According to Officer Basel's report, which was admitted into evidence in lieu of his testimony, as he stood at the driver's side window, he detected an odor of alcohol as plaintiff spoke. He also noted that plaintiff performed "poorly on field sobriety tests." Officer Basel subsequently transported plaintiff and his passenger to the Barrington police station where he was administered a Breathalyzer test, which showed that he had a blood-alcohol concentration of .099. Plaintiff was ticketed for disobeying a stop sign and consumption of alcohol by a minor.
The Secretary issued plaintiff a notice that his driver's license would be suspended for a minimum of three months under section 11-501.8 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501.8 (West 2000)) because he had submitted to testing which showed a blood-alcohol concentration greater than 0.00. Plaintiff's license was suspended on November 7, 2000, and he was given a written notice of that suspension. Thereafter, plaintiff filed a petition with the Secretary to rescind the suspension of his license, challenging the "zero tolerance" suspension. The petition alleged that the sample taken from plaintiff's blood concentration did not indicate a blood-alcohol level of more than 0.00.
A hearing was conducted by the Secretary on August 29, 2001. Plaintiff introduced as an exhibit an order of the circuit court from the underlying driving under the influence (DUI) criminal charge. In that matter, People of the Village of Barrington v. Gumma, Y9-128-143, LO-937-576, the circuit court dismissed both charges and held that the Village of Barrington did not comply with section 510.100 of the Illinois Administrative Code (77 Ill. Adm. Code, §510.100 (2000)) because Officer Basel failed to keep appropriate records and, therefore, as a matter of law, the blood-alcohol test results were inadmissible in that or any other proceeding against plaintiff, including the statutory summary suspension hearing before the Secretary of State.
Plaintiff also testified at the hearing: On September 21, 2000, at approximately 7 or 8 p.m., he left his home in Barrington to attend a social gathering. To his knowledge, no one was drinking alcohol at this gathering, and he did not see any beer on the premises. He left the gathering at approximately midnight with Mike Barrett, whom he planned to give a ride home. Barrett appeared to be intoxicated, and plaintiff smelled alcohol on his breath. Shortly thereafter, a police officer pulled him over. Plaintiff admitted to driving over a curb and disobeying two stop signs. The officer approached his vehicle and stood within 12 inches of him. Plaintiff displayed his driver's license and insurance card. Another officer approached the passenger side, and both plaintiff and Barrett were asked to exit the vehicle. One of the officers placed Barrett under arrest because of an outstanding warrant. The other officer informed plaintiff that he was being arrested for underage consumption of alcohol because an odor of alcohol had been detected on his breath. Plaintiff told the officer that he had not been drinking. Plaintiff further testified that the police officer never conducted any field sobriety tests, although he was given a Breathalyzer test, which registered a blood-alcohol concentration of .099. Plaintiff testified that irrespective of the results of the Breathalyzer test, he had not been drinking that evening.
Plaintiff also introduced as an exhibit his discovery request to the Village of Barrington in the DUI proceeding, as well as the documents produced by the village in response to that request. Those documents consisted of copies of the two tickets issued to plaintiff, the Breathalyzer tape from plaintiff's test and Officer Basel's license as a breath analyzer operator. Plaintiff also introduced a copy of a record showing that the charges against him in the DUI proceeding had been dismissed.
Officer Basel's sworn report, his sworn statement as the breath test operator, and the written zero-tolerance warning that was issued to plaintiff were introduced into evidence under section 11-501.8(e) of the Code. 625 ILCS 5/11-501.8(e) (West 2000). In his sworn statement, Officer Basel stated that he had been licensed as an operator of a breath analysis instrument by the Illinois Department of Public Health since February of 1998; that he administered a breath test to plaintiff on September 22, 2000, and followed the operational procedure prescribed by the manufacturer of the instrument and the standards and procedures for testing for alcohol and/or other drugs as issued by the Illinois Department of Public Health; that he observed plaintiff for 20 minutes prior to administering the test; that at no time during that 20-minute period did plaintiff smoke, regurgitate, drink or ingest any substance; and that the instrument used to administer the test was operating correctly and was recently tested and certified as accurate by an Illinois State Police official on July 13, 2001, pursuant to Illinois Department of Public Health standards. The sworn statement also indicated that the test results revealed that plaintiff had a blood-alcohol concentration level of .099. Finally, the handwritten words "Unable to locate record" appear under a preprinted statement in paragraph eight of the sworn statement that a written record of the test was made in the log book for the instrument in question.
The hearing officer issued findings and recommendations which the Secretary adopted in his final administrative order dated October 16, 2001. Those findings were that Officer Basel had probable cause to believe that plaintiff had consumed alcohol on the night in question in that he detected an odor of alcohol when the plaintiff spoke and observed that he performed poorly on the field sobriety tests. The hearing officer further found that the officer requested that plaintiff submit to a chemical test in order to determine the alcohol content in his blood, and that such testing disclosed an alcohol concentration of .099.
In reviewing plaintiff's evidence, the hearing officer noted that although the charges and the results of the Breathalyzer had been thrown out in the underlying criminal case due to the arresting agency's failure to keep or produce certain records with respect to the authenticity of the reading, the hearing officer and the Secretary were not bound by that order because the court does not have jurisdiction over a zero-tolerance suspension hearing conducted pursuant to section 2-118 of the Code (625 ILCS 5/2-118 (West 2000)). The hearing officer noted that plaintiff's exhibits also included a breath tape reading indicating that the sample test reading was .00, and that the subject test read .099. The hearing officer also found that while plaintiff's counsel had filed a discovery motion in the underlying criminal case and was never furnished with all of the documents for whatever reason, he had failed to use the subpoena powers available to him pursuant to the Secretary of State's rules under either the Administrative Code or the Vehicle Code to secure those documents for the administrative proceeding. Based upon a preponderance of the evidence, the hearing officer concluded that the petition to rescind the suspension of plaintiff's driver's license was without merit and should be denied, and the Secretary of State adopted those findings and that conclusion.
Plaintiff filed a complaint for administrative review of the Secretary's decision denying his petition to rescind the summary suspension in the circuit court of Cook County. In a memorandum opinion and order reversing the Secretary's decision, the circuit court held that the Breathalyzer results could not be considered because the State failed to demonstrate that the Breathalyzer machine had been properly tested in accordance with the Illinois Department of Public Health regulations inasmuch as the log book for that machine was never located. The court also found the other evidence was insufficient to support the conclusion that plaintiff had consumed alcohol on the night in question, and that Officer Basel's statement that he detected an odor of alcohol was insufficient because he never stated that the odor emanated from plaintiff. Moreover, the court found that the statement on the sworn report that plaintiff performed poorly on the field sobriety tests was insufficient because it lacked specificity. The court concluded that the Secretary's findings were against the manifest weight of the evidence because the officer's sworn report was "devoid of factual content."
On appeal, the Secretary contends that he was not bound by an order
entered in the DUI
case against plaintiff which barred the use of evidence concerning his
blood-alcohol concentration when the Secretary was not a party in that
case. The Secretary also contends that his determination that plaintiff
failed to establish a prima facie case for rescission of his driver's
license for violating the "zero ...