People v. Duensing

• Decision Date: 25 November 1985
• Docket Number: No. 3-85-0060,3-85-0060
• Citation: 93 Ill.Dec. 405,138 Ill.App.3d 587,486 N.E.2d 938
• Parties: , 93 Ill.Dec. 405 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Robert G. DUENSING, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 938

486 N.E.2d 938

138 Ill.App.3d 587, 93 Ill.Dec. 405

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Robert G. DUENSING, Defendant-Appellee.

No. 3-85-0060.

Appellate Court of Illinois Third District.

Nov. 25, 1985.

Peter M. Tumminaro, John X. Breslin, State's Attys. Appellate Service Commission, Ottawa, William Herzog, State's Atty., Kankakee, for plaintiff-appellant.

Joseph C. Polito, Kozlowski, Polito & Feeley, Joliet, for defendant-appellee.

WOMBACHER, Justice.

The defendant, Robert G. Duensing, was arrested for driving under the influence of alcohol (DUI), improper lane usage, and speeding. The court granted the defendant's motion in limine regarding trial admission of breath analysis test results. The State brought this appeal, certifying that the court's order substantially impaired its ability to prosecute.

Prior to his trial, the defendant filed his document captioned "Motion to Suppress and Motion in Limine." The motion did not specify its grounds. At the hearing on the filing, the defendant stated that the Motion to Suppress challenged whether there was probable cause for the defendant's arrest and that the Motion in Limine challenged the breathalyzer test procedure.

The defendant presented the testimony of the police officers who arrested him and administered the breathalyzer test. According to the uncontroverted testimony, the arresting officer stopped the defendant as he observed the defendant driving. The officer arrested the defendant following field sobriety tests. At the scene of the defendant's arrest, the officer read the defendant the implied-consent warning concerning failure to submit to a breath analysis test. (Ill.Rev.Stat.1983, ch. 95 1/2, par. 11-501.1(c).) The defendant stated his understanding of the warning and stated he would not submit. Based on a local police policy to allow a DUI arrestee 30 minutes to decide to take a breath analysis, the arresting officer advised the defendant that he had 30 minutes in which to decline the test.

Thereafter, the officer transported the defendant to police headquarters where the defendant was issued a citation for DUI. There, the officer again gave the implied-consent warning and the defendant agreed to take the breath analysis test. The defendant's test results apparently showed his blood-alcohol content at .18. The officers testified that the breath analysis machine was certified by the Illinois Department of Public Health (DPH); that the administering officer was trained and licensed for operating the test equipment; and that prior to the defendant's test the officers observed the defendant for 20 minutes.

Regarding test procedure, the administering officer testified that prior to taking the defendant's breath analysis he warmed and pretested the machine for impurities. He further testified that in the test he followed his operational checklist. He was unsure whether the procedure therein was based upon procedures suggested by the breath analysis machine manufacturer. The officer stated that his procedures were based upon DPH standards but he was unsure whether they were approved by the DPH.

In his closing argument on the motion, the defendant conceded that there was probable cause for his arrest. He argued, however, that the court should grant his motion in limine on the admissibility of the breath analysis test results. In a minute order, the court granted the defendant's motion without specific findings. The State brought the instant appeal under Supreme Court Rule 604(a). 87 Ill.2d R. 604(a).

The defendant has filed a motion to dismiss the appeal. The State has filed objections to the motion. We now address both filings taken with the case. The defendant's first argument for dismissal regards the State's failure to file its notice of appeal within 30 days of the order appealed from. That argument is meritless as we exercised our authority under Supreme Court Rule 606(c) (87 Ill.2d R. 606(c)), to grant the State's properly supported motion for leave to file a late notice of appeal. The defendant's second argument, that the State has failed to file a certificate of impairment under People v. Young (1980), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501, is similarly meritless. The State has filed its certificate and included it in the record.

The defendant's final argument for dismissal is that the court's order was not appealable by the State. The defendant relies on People v. McCollins (3rd Dist., 1984), 126 Ill.App.3d 1083, 82 Ill.Dec. 134, 468 N.E.2d 196, in asserting that, as the court's order granted a motion in limine which was not a suppression order, the State may not appeal under Supreme Court Rule 604(a). We disagree.

In McCollins we considered the appealability of the court's grant of the defendant's motion in limine. In granting the defendant McCollins's motion, the trial court held that its prior refusal to suspend the defendant's license following an implied-consent hearing required that evidence of the defendant's refusal to submit to breath analysis be suppressed at the defendant's DUI trial. In McCollins, we did not hold, as the defendant suggests, that a circuit court's grant of a motion labeled "in limine" may not be appealed by the State. Not the label of the motion, but the substantive effect of the court's granting order controls appealability under Rule 604(a). The court's order here is factually distinct from that in McCollins. Despite its label, its effect is to suppress evidence based on the breath analysis test procedures followed in the defendant's case. The order is properly appealable by the State. The defendant's motion to dismiss the appeal is denied.

On the merits, the State argues that the trial court's order was an abuse of discretion as being both erroneous and against the manifest weight of the evidence. More specifically, the State argues that each of the grounds that the defendant argued to support his motion was meritless. In response, the defendant asserts that the trial court's order was properly based upon his arguments before...