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The Village of Richmond v. Gary E. Magee

January 28, 2011

THE VILLAGE OF RICHMOND,
PLAINTIFF-APPELLANT,
v.
GARY E. MAGEE,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 08-TR-65533 Honorable Charles P. Weech,Judge, Presiding.

The opinion of the court was delivered by: Justice Zenoff

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.

OPINION

Plaintiff, the Village of Richmond, charged defendant, Gary E. Magee, with driving an overweight vehicle. Richmond Village Code §15.01(a) (amended Nov. 16, 2006). After a bench trial, the trial court entered a judgment for defendant. Plaintiff appeals. We reverse and remand.

Plaintiff alleged by complaint that, on October 20, 2008, defendant operated a second-division motor vehicle with a gross weight of 17,000 pounds, although its maximum permitted weight was only 6,000 pounds. The ordinance under which defendant was charged adopted the Illinois Vehicle Code, including section 3-401(d) of the statute (625 ILCS 5/3-401(d) (West 2008)).

At trial, plaintiff first called Mark Andrews, an Illinois State Police officer. On direct examination, he testified as follows. He was a truck weight inspector and a certified truck enforcement officer. On Thursdays and Fridays, he worked at the Richmond scale on Route 12. When he was not there, some other State Police officers had access to the scale house, but Richmond officers did not. The scale stood directly in front of the building. Andrews identified photographs, later admitted into evidence, of the scale house and the scale. The photographs showed that inside the scale house was a digital display with a printer.

Andrews explained the operation of the Richmond scale and similar scales. Before each truck is weighed, the display must read zero. After each weighing, the display must be returned to zero. Trucks are weighed axle by axle. The scale does not need to be "zeroed out" after each axle is weighed, but only before the first axle is weighed and after the last one is weighed.

Andrews testified that the Richmond scale was certified, meaning that the Department of Agriculture (DOA) had tested it and found it fit for operation. A decal so signifying was affixed to the display and could not be removed without being damaged. The scale had been certified annually.

Andrews identified and described several documents that were later admitted into evidence. Plaintiff's exhibit No. 10 stated the results of tests performed on the Richmond scale on January 8, 2008, by David Biggs, a DOA inspector. Plaintiff's exhibit No. 11 stated the results of tests that Biggs performed on the scale on January 6, 2009. Plaintiff's exhibit No. 12 was a cover sheet, prepared August 22, 2008, and signed by John Harris of Fairbanks Service (Fairbanks), the scale's manufacturer. The cover sheet stated that, on that day, a new display and a new attached printer had been installed. Plaintiff's exhibit No. 13, also signed by Harris, stated that, on October 7, 2008, maintenance, inspection, and testing had been performed on the scale. Plaintiff's exhibit No. 14, also signed by Harris, showed "the actual numbers" that he recorded during the test. Plaintiff's exhibit No. 15, dated August 22, 2008, and signed by Harris, was an "in-service report" for the scale.

Andrews testified that, on October 20, 2008, there were "actually two stickers on the display." One was from Fairbanks, showing the last date that it had tested and calibrated the scale. The other was from the DOA, showing that the scale was certified.

Andrews testified on cross-examination as follows. He was not aware of any written policy for "how to perform a test at the scale house." However, he "believe[d]" that the operator's manual, which was kept at the scale house, set out a procedure. Asked whether the scale needed to be recertified and recalibrated "every time that [it was] worked on," Andrews responded, "It would depend on the work, I think, that's done to the scale." Asked whether "Handbook 44" states that a scale must be recertified after every use and every time maintenance has been done, Andrews said that he was "not familiar with the Handbook 44 procedures." Shown plaintiff's exhibit No. 10, Andrews agreed that nobody had signed it or acknowledged receiving it.

Andrews testified as follows on redirect examination. To his knowledge, the Illinois State Police had no written procedure for operating the Richmond scale; this was what he had tried to say on cross-examination. He did not adhere to Handbook 44. "Calibration" is done by the maintenance contractor, here Fairbanks, and means making needed adjustments. "Certification" is performed by the DOA and means that it has approved the scale for operation. On August 22, 2008, a new digital display and a new printer were installed, but no repair work was needed or performed. On October 7, 2008, regular quarterly maintenance was performed, but, to Andrews' knowledge, no other work was done. Plaintiff's exhibit No. 14 showed the results of the test that Harris had done that day.

Anna Kuzmiak, a Richmond police officer and a certified truck enforcement officer, testified as follows. On October 20, 2008, she was on patrol, driving north on Route 12, when she saw in front of her a pickup truck with a trailer. The maximum permissible weight for the truck and trailer combined was 6,000 pounds. (Defendant stipulated to this fact.) Kuzmiak stopped the vehicle, spoke to the driver, defendant, and then weighed the vehicle on the Richmond scale. She had been trained to operate the scale and had used it more than 30 times.

Kuzmiak explained that, before weighing a vehicle, the operator makes sure that the scale is "zeroed out." She did so before weighing defendant's vehicle. The scale's display had a sticker, also known as a "decal" or "decalmania." The sticker meant that the DOA had certified the scale. The sticker was dated January 2008. According to Kuzmiak, a certification is good for 12 months. Kuzmiak saw no sign of tampering with the decal or of any outside interference that could have impeded the scale's accuracy. Because she had zeroed out the ...


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