from the Circuit Court of Kane County, No. 15-DT-522; the
Hon. Robert J. Morrow, Judge, presiding.
K. Johnson, of Law Office of Randy K. Johnson, of West
Dundee, and J. Brick Van Der Snick, of Van Der Snick Law
Firm, of St. Charles, for appellant.
H. McMahon, State's Attorney, of St. Charles (Lawrence M.
Bauer and Kathryn E. Kohls, of State's Attorneys
Appellate Prosecutor's Office, of counsel), for the
JUSTICE ZENOFF delivered the judgment of the court, with
opinion. Presiding Justice Schostok and Justice McLaren
concurred in the judgment and opinion.
1 Defendant, Kurt Cielak, was ticketed for driving while
under the influence of alcohol (DUI) (625 ILCS
5/11-501(a)(1), (a)(2) (West 2014)) and transported to the
East Dundee police department. While there, he was given the
statutory warning to motorists and was asked to complete a
Breathalyzer test 19 minutes later. Defendant complied, and
the results of the test revealed that his breath-alcohol
concentration was over the legal limit. Because of that,
defendant's driving privileges were summarily suspended.
Defendant petitioned to rescind that suspension, arguing,
among other things, that the Breathalyzer test was
administered before the arresting officer observed him for 20
minutes (see 20 Ill. Adm. Code 1286.310(a)(1) (2004)). The
trial court denied the petition, defendant moved to
reconsider, the court denied that motion, and this timely
appeal followed. On appeal, defendant argues that (1) the
State failed to substantially comply with the 20-minute
continuous observation requirement and (2) he was denied due
process when the State failed to disclose to him before the
hearing that the arresting officer's testimony that he
began the 20-minute observation period before he read the
warning to defendant was inconsistent with his police report.
For the reasons that follow, we affirm.
2 At the hearing on the petition to rescind, Officer John
Haase testified that, on June 7, 2015, at around 12:30 a.m.,
he arrested defendant for DUI and then took him to the police
department. At around 12:43 a.m., he read the warning to
defendant, which took about two or three minutes. Prior to
reading the warning, Officer Haase began observing defendant
for the mandated 20 minutes. Although Officer Haase's
police report was not admitted at the hearing, Officer Haase
testified that, in the last paragraph of his report, he
indicated that " '[a]fter the matter of a
20[-]minute observation period, at 1:02 [he] administered the
3 Officer Haase's testimony on cross-examination was
somewhat conflicting. For example, after Officer Haase
confirmed that he began the 20-minute observation period
before he read the warning to defendant, he stated that he
"probably" started the 20-minute observation period
within 15 minutes of bringing defendant to the police
department. He testified that he began observing defendant 10
minutes before the warning and that he observed defendant for
a total of 29 minutes at the station before giving defendant
the Breathalyzer test. During the observation period,
defendant did not "vomit, throw-up or cough or anything
4 The State moved for a directed finding. The trial court
granted that motion, noting that it was unaware of any
requirement that prohibited the officer from starting the
20-minute observation period before reading the warning to
defendant. It also found that Officer Haase was observing
defendant while he was filling out paperwork before he read
5 Thereafter, defendant filed a motion to reconsider,
attaching to his motion a "DUI Checklist" given to
police officers. On this form, reading the warning is listed
as number 9, and the 20-minute observation period is listed
as number 10. The trial court denied the motion to
reconsider, finding that the officer complied with the
20-minute observation period. Specifically, the court relied
on Officer Haase's testimony that he observed defendant
both before and after he read the warning to motorists. The
court again observed that it was not aware of any law that
provided that the 20-minute observation period commences only
after the warning is read to the defendant.
6 At issue is whether the petition to rescind the summary
suspension of defendant's driving privileges should have
been granted. A hearing on a petition to rescind a summary
suspension of driving privileges is a civil proceeding.
People v. Pollitt, 2011 IL App (2d) 091247, ¶
13. On appeal, we apply the same bifurcated standard of
review that applies to motions to suppress. See People v.
Wear, 229 Ill.2d 545, 560-62 (2008). That is, we defer
to the trial court's factual findings unless they are
against the manifest weight of the evidence, and we review
de novo the trial court's determination of
whether the petition to rescind should be granted.
Id. at 561-62.
7 Because the trial court granted a directed finding,
defendant asserts that the trial court erred in finding that
he did not present a prima facie case for
rescission. When a defendant challenges the results of a
Breathalyzer test, as in this case, he must make a prima
facie case that the test results are unreliable.
People v. Aleliunaite, 379 Ill.App.3d 975, 978
(2008). Prima facie evidence is equivalent to the
amount of evidence required under the
preponderance-of-the-evidence standard. People v.
Bonutti, 338 Ill.App.3d 333, 342 (2003). To attack
breath-test results, the defendant must show that (1) the
breath test was not properly administered, (2) the results
were not accurate and trustworthy, or (3) the regulations
regarding such testing were violated. People v.
Barwig, 334 Ill.App.3d 738, 744 (2002). If the defendant
meets this burden, the burden then shifts to the State to
present evidence justifying the suspension. Pollitt,
2011 IL App (2d) 091247, ¶ 13. If the defendant fails to
establish a prima facie case, the State is entitled
to a directed finding in its favor. Aleliunaite, 379
Ill.App.3d at 978. We review under the
manifest-weight-of-the-evidence standard whether a defendant
has presented a prima facie case for rescission.
People v. Paige, 385 Ill.App.3d 486, 489 (2008). For
a decision to be against the manifest weight of the evidence,
the opposite conclusion must be clearly evident.
Barwig, 334 Ill.App.3d at 743.
8 The first issue defendant raises is whether the regulations
concerning Breathalyzer testing were violated. Specifically,
defendant contends that the officer did not substantially
comply with the 20-minute observation period as required by
section 1286.310 of the Illinois Administrative Code (20 Ill.
Adm. Code 1286.310 (2004)). Section 1286.310 provides:
"The following procedures shall be used to obtain a
breath sample to determine a subject's [breath-alcohol
concentration] with an ...