People v. Keith

• Decision Date: 16 April 1992
• Docket Number: No. 71383,71383
• Citation: 148 Ill.2d 32,591 N.E.2d 449,169 Ill.Dec. 276
• Parties: , 169 Ill.Dec. 276 The PEOPLE of the State of Illinois, Appellant, v. Christopher D. KEITH, Appellee.
• Court: Illinois Supreme Court

Page 449

591 N.E.2d 449

148 Ill.2d 32, 169 Ill.Dec. 276

The PEOPLE of the State of Illinois, Appellant, v. Christopher D. KEITH, Appellee.

No. 71383.

Supreme Court of Illinois.

April 16, 1992.

Neil F. Hartigan and Roland W. Burris, Attys. Gen., Springfield, and Erik I. Blanc, State's Atty., of Pekin (Rosalyn B. Kaplan, Sol. Gen., and Terence M. Madsen and Arleen C. Anderson, Asst. Attys. Gen., Chicago, and Kenneth R. Boyle, John X. Breslin and Rita Kennedy Mertel, Office of the State's Attys. Appellate Prosecutor, Ottawa, of counsel), for people.

Robert Agostinelli, Deputy Defender, Peter A. Carusona, Asst. Defender, of the office of the State Appellate Defender, Ottawa, for appellee.

Justice CUNNINGHAM delivered the opinion of the court:

The defendant, Christopher Keith, was indicted on one count of reckless homicide (Ill.Rev.Stat.1987, ch. 38, par. 9-3(a)), one count of driving under the influence of alcohol (DUI) (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-501(d)(3)), and one count of driving with a blood-alcohol concentration of 0.10 or more (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-501(a)(1)). Prior to trial, defendant filed a motion in limine seeking to bar the admission into evidence of a breath-alcohol test. The trial court granted defendant's motion. The State appealed the trial court's decision pursuant to our Rule 604(a)(1) (134 Ill.2d R. 604(a)(1)), and the appellate court affirmed (206 Ill.App.3d 414, 151 Ill.Dec. 446, 564 N.E.2d 901). We allowed the State's petition for leave to appeal pursuant to our Rule 315 (134 Ill.2d R. 315). 137 Ill.2d 669, 156 Ill.Dec. 565, 571 N.E.2d 152.

At the hearing on defendant's motion in limine, the State and defendant stipulated to the following facts: (1) on April 22, 1989, the defendant was arrested for the offense of driving while under the influence of alcohol and transported to the Pekin police department (police department); (2) Officer Eddie Thomas administered a breath-alcohol test to defendant; (3) Thomas is now deceased; (4) at the time Thomas gave defendant the breath-alcohol test, Thomas' license to conduct such tests had expired; and (5) the State sought to introduce the breath-alcohol test results at trial. The Department of Public Health (Department) standards for breath-alcohol tests were admitted into evidence.

Testifying at the hearing was Lieutenant Don Nell of the police department. Nell was shift commander of the patrol division April 22, 1989, and was in charge of breathalyzer operations. As shift commander, Nell reviewed each completed breath test. Nell identified a copy of the police department's breath analysis logbook which contained the names of individuals arrested for DUI, dates of the arrests, results if a breath test was performed, and the dates the breath test instrument was examined and certified to be in proper working order.

Harold Backer, a breath analyzer inspector with the Department, also testified. Backer's duties for the Department included training and licensing police to become breath test operators, and certifying breathalyzer instruments. Breath test training consists of a 37-hour course in blood-alcohol content in which the trainee studies case law, standard procedures, and instrument theory, and runs approximately 100 tests on a breath test instrument. Once licensed, the operator must be relicensed every year. This process involves running two practice tests for Backer after the first year, and taking a 25-question quiz the next. These two tests alternate every year.

Backer was familiar with the certification and license of Thomas and had recently tested him for license renewal on May 2, 1989. Thomas' renewal test involved operating a breath-alcohol test simulator. According to Backer, Thomas had no problems passing the test. Backer identified Thomas' license, which was valid from May 2, 1989, through May 2, 1990. Thomas' previous license had expired April 21, 1989. Thomas had been licensed since 1983.

The police department's breath test machine is the Intoxilyzer model 4011AS, a model approved by the department. (Although Backer testified at the hearing that the model was the "4-11AS," we believe this to be a misstatement or an error in the transcript. The Department has no model "4-11AS" on its approved instrument list, but does approve of Intoxilyzer models 4011, 4011A, 4011AS, 4011ASA, and 5000. Moreover, the police department's breath analysis logbook identifies the instrument as the Intoxilyzer model 4011AS, and the ticket on which the test results are printed is a ticket for "4011 MODELS.") The tests Backer conducts to assure the instrument is properly calibrated are performed once a month, not to exceed a period of 45 days, and the results are recorded in the logbook. Backer tested and found the police department's breath machine properly calibrated on April 4, 1989, and again on May 2, 1989.

Backer next described the operation of the breath machine. The operator must first conduct a sample test called an airblank test. If the operator fails to conduct an airblank test, the machine will not print an airblank result. If the machine prints "A.00" on the ticket, "A" indicating airblank and ".00" indicating the alcohol concentration, as it did here, the machine is not contaminated. The operator next purges the air chamber, which also ensures the machine is clear of contamination. The machine is purged by switching on the "air blank" mode, which blows air through the machine for 35 seconds. After 35 seconds, a light indicates the cycle is completed, and the operator switches the machine to breath test mode. If the air chamber is not purged, the machine will not print results of a breath test. The individual then blows into the machine for 8 to 10 seconds so that 600 cubic centimeters of air is blown into the machine. If the individual fails to blow 600 cubic centimeters of air into the chamber, the machine will not produce a printout. The air blown into the machine flows through a sample chamber to infrared absorption which absorbs the alcohol in the sample chamber. A digital display reveals the alcohol concentration in the breath, and the machine prints the number on the ticket. In the instant case, the machine printed "B.18," "B" for breath and ".18" for alcohol concentration. The operator should make sure the visual readout matches the printed readout.

Daniel Smith of the police department was the arresting officer in the case and brought defendant to the stationhouse. Smith testified that he asked Thomas to prepare the breath-alcohol machine for a test. Although Smith was not certified to operate the breath machine, he had been previously certified in another jurisdiction. Smith did not observe Thomas prepare the machine and was not sure how Thomas prepared it. After Thomas indicated the machine was ready, Smith asked defendant to accompany him to the machine. Smith observed Thomas place the mouthpiece in the tube which protrudes from the machine. Smith also observed defendant blow into the machine. After the machine indicated the test was complete, a test result, ".18," flashed on the visual display. The machine then printed the ".18" result on the ticket.

Smith continuously observed defendant for 34 minutes from the time of his arrest until he took the breath test. During this time defendant did not ingest anything, smoke, or regurgitate.

After the defendant's breathalyzer test, Smith saw Thomas record the results in the logbook. Smith also saw Thomas sign the printout and write the information on the printout identifying it as defendant's. Smith could not testify that he saw Thomas write every letter on the printout.

The trial court barred the State from introducing the results of the breath test into evidence because Thomas was uncertified and deceased. The trial court also denied the State's motion for reconsideration, but clarified its order by finding that only one set of standards govern the admissibility of a breath-alcohol test, the Department's standards. The Department's standards require an operator of a breath test instrument to be licensed by the Department, something the State could not prove. The State then filed a certificate of impairment pursuant to Supreme Court Rule 604(a)(1) (134 Ill.2d R. 604(a)(1)) and filed an appeal. The appellate court affirmed the trial court by finding that the State could not provide the foundation for the admissibility of the breath test. The appellate court also relied on the Department's standards.

The State appeals and contends that the trial and appellate courts erred in barring results of defendant's breath test into evidence on the reckless homicide charge. However, we first address defendant's request to dismiss this appeal. Defendant argues that while Supreme Court Rule 604(a)(1) allows the State to appeal a pretrial suppression order which substantially impairs its ability to prosecute its case (People v. Young (1984), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501), it does not allow the State to appeal from every ruling excluding evidence (People v. Van De Rostyne (1976), 63 Ill.2d 364, 368, 349 N.E.2d 16; People v. McCollins (1984), 126 Ill.App.3d 1083, 1085, 82 Ill.Dec. 134, 468 N.E.2d 196). Defendant notes that its motion was a motion in limine, and such motions usually involve evidentiary matters (People v. Flatt (1980), 82 Ill.2d 250, 266, 45 Ill.Dec. 158, 412 N.E.2d 509). Defendant concludes that the State has appealed from an evidentiary ruling, not a suppression order, and that we should thus dismiss this appeal.

Rule 604(a)(1) provides in pertinent part: "In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in * * * suppressing evidence." (134 Ill.2d R. 604(a)(1).) In Young, we held that "Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression...