Appeal from Circuit Court of Champaign County. No. 01DT624. Honorable Holly F. Clemons, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
In November 2001, the State charged defendant, Alonzo Bass, with one count of driving while under the influence of alcohol (DUI) and one count of driving with a blood-alcohol concentration of 0.08 or greater. In June 2002, a jury found defendant guilty of driving with a blood-alcohol concentration of 0.08 or greater. In August 2002, the trial court denied defendant's posttrial motion and sentenced him to 24 months' conditional discharge. The court also ordered him to pay $500 in court-appointed attorney fees.
On appeal, defendant argues the trial court erred in (1) allowing the results of the preliminary breath test (PBT) to be admitted in evidence by the State on rebuttal and (2) ordering him to pay $500 for the services of his court-appointed counsel. We affirm defendant's conviction, vacate the order directing him to pay for court-appointed counsel, and remand with directions.
In November 2001, the State charged defendant by information with one count of DUI (625 ILCS 5/11-501(a)(2) (West 2000)) and one count of driving with a blood-alcohol concentration of 0.08 or greater (625 ILCS 5/11-501(a)(1) (West 2000)). Defendant pleaded not guilty.
In June 2002, the State withdrew the DUI charge, and the case proceeded to a jury trial on the remaining count. Troy Phillips, an officer with the Illinois State Police, testified he was on patrol on March 11, 2001. At approximately 1:30 a.m., he stopped a car, driven by defendant, for speeding. Defendant indicated he was coming from the "Grove Street," which Officer Phillips believed was a Rantoul tavern. When asked if he had been drinking, defendant stated he had two beers. Officer Phillips described defendant as having "glassy, bloodshot eyes," "a very strong odor of alcohol on and about his person," and slurred speech. Defendant agreed to participate in field-sobriety tests, and Officer Phillips administered the horizontal gaze nystagmus test, the walk-and-turn test, and the one-legged stand test. Based on defendant's performance on the tests, Officer Phillips believed he was under the influence of alcohol and placed him under arrest.
Upon searching defendant's vehicle, Officer Phillips located "an open bottle of Paul Mason Brandy under the passenger seat." Phillips noticed a "small amount" of brandy inside the bottle that was "cool to the touch." Once at the jail, Phillips read the statutory "warning to motorist" to defendant and asked him to take a breath test. Defendant agreed to do so and Phillips observed him for over a 20-minute period. Thereafter, Phillips used the Intoximeter ECIR to administer the breath test.
Richard Bright, a breath-analysis equipment technician with the State Police, testified he is required to test breath-test equipment once within every 62-day period for its accuracy. He stated he checked and certified the accuracy of the machine used in this case on March 9, 2001.
The trial court read a stipulation, stating that after defendant "submitted to a breath sample on March 11 of 2001, at 3:09 a.m., the ECIR breath instrument indicated that the [d]efendant's blood[-]alcohol concentration was .106." The State then rested its case.
Defendant testified he and Jimmy Brooks went to the Grove Street Tavern in the late evening of March 10 and the early morning of March 11, 2001. Defendant testified he may have had "a soda" but nothing alcoholic to drink because he had been sick with the stomach flu and was still taking medicine for it. After being stopped by the police, defendant "walked normal" during the field-sobriety tests and was not swaying or having trouble maintaining his balance. When asked on cross-examination if he told Officer Phillips he had two beers that evening, defendant stated, "No, I did not. I wouldn't do that, if I had. That just convicted myself."
Jimmy Brooks testified defendant did not have any alcoholic beverages at Grove Street but just had a Pepsi. Brooks stated he never had any brandy that evening and did not see any bottles in defendant's car.
Over defense counsel's objections, the trial court allowed the State to use the results from the PBT for impeachment purposes during rebuttal. Officer Phillips testified he read the Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966)) to defendant, and defendant told the officer he had two beers that evening. Officer Phillips testified to his training in administering portable breath tests on devices approved by the State Police. He had defendant submit to a PBT prior to placing him under arrest, which resulted in a reading of 0.120.
Following closing arguments, the jury found defendant guilty of driving with a blood-alcohol concentration of 0.08 or greater. In July 2002, defendant filed a motion for new trial, arguing the trial court erred in, inter alia, permitting the State's use of the PBT results in rebuttal and admitting the testimony without a proper foundation. In August 2002, the court denied the motion. Thereafter, the court sentenced defendant to 24 months' conditional discharge, imposed a $200 fine, and ordered him to perform 200 hours of public-service work. The court called for a hearing on court-appointed attorney fees, and defendant stated he was currently working at Thomas Paine School and earning about $1,100 per month. The court assessed a $500 court-appointed attorney fee to be paid within 22 months. This appeal followed.
A. Preliminary Breath-Test Results as Impeachment in Rebuttal
Defendant argues the trial court erred in allowing the results of the PBT to be admitted into evidence by the State on rebuttal to impeach his testimony. We agree.
Section 11-501.5 of the Illinois Vehicle Code (Vehicle Code) states, in part, as follows:
"(a) If a law[-]enforcement officer has reasonable suspicion to believe that a person is violating or has violated [s]section 11-501 or a similar provision of a local ordinance, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath[-]screening test using a portable device approved by the Department of State Police. The person may refuse the test. The results of this preliminary breath[-]screening test may be used by the law[-]enforcement officer for the purpose of assisting with the determination of whether to require a chemical test as authorized under [s]sections 11-501.1 and 11-501.2, and the appropriate type of test to request. Any chemical test authorized under [s]sections 11-501.1 and 11-501.2 may be requested by the officer regardless of the result of the preliminary breath[-]screening test, if probable cause for an arrest ...