People v. Hester

• Decision Date: 16 September 1980
• Docket Number: No. 79-663,79-663
• Citation: People v. Hester, 410 N.E.2d 638, 88 Ill.App.3d 391, 43 Ill.Dec. 638 (Ill. App. 1980)
• Parties: , 43 Ill.Dec. 638 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John J. HESTER, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 638

410 N.E.2d 638

88 Ill.App.3d 391, 43 Ill.Dec. 638

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John J. HESTER, Defendant-Appellant.

No. 79-663.

Appellate Court of Illinois, Second District.

Sept. 16, 1980.

Loftus, Riggs & Redmond, Dann Duff, Breen & Lucas, Kenneth E. Poris, Addison, for defendant-appellant.

F. Michael Fitzsimmons, State's Atty., Robert L. Thompson, Asst. State's Atty., Wheaton, for plaintiff-appellee.

VAN DEUSEN, Justice:

Defendant, John J. Hester, appeals from his conviction of driving while under the influence of intoxicating liquor in violation of section 11-501 of the Illinois Vehicle Code. (Ill.Rev.Stat.1977, ch. 951/2, par. 11-501.) After the jury returned a guilty verdict on June 22, 1979, defendant was fined $500, given one year probation and 30 days periodic imprisonment to be served on weekends.

On June 7, 1978, at approximately 1:10 p. m., defendant was involved in an automobile collision. It was a clear day. Defendant was driving a red, one-half ton Chevrolet pickup truck and traveling in an easterly direction on Ogden Avenue in Naperville, Illinois. Ogden is a four-lane highway, i. e., there are two lanes for each direction of traffic. As defendant approached the intersection of Ogden and River Road, he attempted to make a left turn north onto River Road. His car and one traveling westbound on Ogden in the innermost lane collided. In turn, the westbound car collided with a third car which was facing in a southern directly on River Road where it was stopped for the red light. River Road is a two-lane highway, i. e., one lane for each direction.

Officer Eurkaitis, a Naperville Police Officer, arrived at the scene of the accident and questioned defendant. The officer testified that it took defendant a little longer than normal to produce his driver's license and that, when he asked defendant in what direction defendant had been traveling, defendant stated eastbound but pointed to the west. The officer observed that defendant's manner of walk was unsure, and defendant's speech was slurred and thick-tongued. Officer Eurkaitis also detected a faint smell of alcohol on defendant's breath. The officer therefore had defendant perform several of the physical coordination tests typically conducted upon an individual whom a police officer suspects is driving while intoxicated. Defendant performed these tests successfully, albeit slowly and hesitantly. Based upon years of experience and observation of hundreds of intoxicated individuals, Officer Eurkaitis opined that defendant was intoxicated and arrested him.

At the Naperville Police Station, defendant performed additional coordination tasks and his actions, though slow, were again successful. Thereafter, defendant's breath was chemically analyzed. The breath tests were administered by Officer David Senneke, a certified operator of the breathalyzer machine. Officer Senneke testified as to his qualifications and the procedures he used in conducting the tests. The procedures he used were in compliance with the standards developed and adopted by the Illinois Department of Public Health and Superintendent of State Police. (See Ill.Rev.Stat.1977, ch. 951/2, par. 11-501.1(b).) The results of two tests performed on defendant showed that defendant had .15% and .17% alcohol in his blood. Under section 11-501 of the Illinois Vehicle Code, where .10% or more alcohol is found in the bloodstream, a presumption of intoxication arises (Ill.Rev.Stat.1977, ch. 951/2, par. 11-501(c)3) and defendant thereafter carries the burden of producing evidence in his favor sufficient to rebut that presumption.

Defendant's sole contention on this appeal is that the breath test results were improperly admitted into evidence. More specifically, defendant avers that the trial judge committed reversible error when he received into evidence a page from an instrument log book to establish that the breathalyzer machine was accurate and in proper working order.

Before breath test results may be received in evidence, a proper foundation must be established. The proof necessary to establish a proper foundation includes, inter alia, "evidence that the machine used * * * was tested regularly for accuracy, and was working properly." (People v. Winfield (1975), 30 Ill.App.3d 668, 672, 332 N.E.2d 634, 637.) In the case before us, the trial judge admitted the log book into evidence, under the business records exception to the hearsay rule, for the limited purpose of fulfilling the aforesaid foundation requirement. Under Illinois Department of Public Health Rule 7.01 (Rule 7.01 of the Standards and Procedures for Blood Alcohol Testing by Breath and Blood Analysis), every 30 days, a Department of Public Health inspector must perform maintenance tests on the breathalyzer to ensure that it is working accurately. The log book page admitted into evidence contained results of maintenance tests performed by Department of Public Health inspector, T. Miller, on June 2, 1978, five days before the breathalyzer was used to measure the amount of alcohol in defendant Hester's blood, and on July 2, 1978. The log indicated that the breathalyzer machine was in proper working condition on both occasions. Before receiving the log book page into evidence, however, the judge heard Officer Senneke's testimony interpreting the log book notations. Officer Senneke stated that the log revealed that "T. Miller" tested the machine with a simulated solution of .15 content, using an ampoule out of the No. 9 batch; the reading on the purge state was 888 and at the sample state 000; and the test result came out to be .15. Officer Senneke testified that such a result indicated the machine's reading was the same as the simulated alcohol content. The officer was not present during the inspections and had no knowledge, other than the log book itself, as to the procedures utilized by T. Miller in administering the maintenance tests.

In his brief, defendant contends that the log book page should not have been admitted because it does not qualify as a business record; that even if it was a business record, Officer Senneke was not competent to interpret the notations in the log book and that...