People v. Reding
| Decision Date | 07 December 1989 |
| Docket Number | No. 2-87-0486,2-87-0486 |
| Citation | 138 Ill.Dec. 689,191 Ill.App.3d 424,547 N.E.2d 1310 |
| Parties | , 138 Ill.Dec. 689 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald J. REDING, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Daniel D. Yuhas, 4th Dist. Appellate Defender, M. Jeffrey Bergschneider, Asst. Defender, Office of State Appellate Defender, Springfield, and Laurence J. Bolon, Chicago, for Donald J. Reding. Gary V. Johnson, Kane County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, State's Atty's. Appellate Prosecutor, 4th Dist., and Rebecca L. White, Staff Atty. State's Attys. Appellate Prosecutor, Springfield, for the People.
Defendant, Donald Reding, was found guilty after a jury trial of reckless homicide (Ill.Rev.Stat.1985, ch. 38, par. 9-3) and was sentenced to 24 months' probation, four weekends' periodic imprisonment, a $500 fine, and court costs. Defendant appeals from this conviction.
On appeal, defendant contends that this court should reverse his conviction or reverse and remand for a new trial based upon the following alleged errors at trial: (1) the court should not have admitted evidence of Reding's blood-alcohol content without first making a preliminary finding that the testing was reliable; (2) the court should not have admitted improper testimony of the State's accident reconstruction expert; (3) the State should not have been allowed to cross-examine Reding and other witnesses concerning Reding's prior use of alcohol; (4) the defendant should have been allowed to cross-examine the breathalyzer technician concerning "false highs" registered by the breathalyzer machine in connection with another case; (5) the court should have allowed Reding to impeach a police officer by questioning him about omissions in his police and accident reports; (6) the court should not have given Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) because it violated Reding's due process rights; (7) Reding's attorney should not have tendered Illinois Pattern Jury Instruction Criminal 2d, No. 23.05, as this constituted ineffective assistance of counsel; and (8) Reding was not proved guilty beyond a reasonable doubt.
On July 16, 1986, Reding was charged with reckless homicide. (Ill.Rev.Stat.1985, ch. 38, par. 9-3.) This charge arose out of a May 12, 1986, automobile/motorcycle accident that resulted in the death of the driver of the motorcycle, Craig Miraglia.
Prior to trial, Reding moved to suppress the results of a breathalyzer test administered shortly after the accident. Reding alleged that the results of the test were unreliable and admission of this evidence would violate his due-process rights and right to a fair trial. Reding stated that he had a witness who would testify to Reding's actual solubility ratio as tested several months after the accident. A solubility ratio is the ratio of alcohol in the blood to alcohol in the breath. Reding's witness would testify that Reding's actual solubility ratio was 1,681:1 as opposed to the 2,100:1 ratio built into the breathalyzer machine. The significance of this fact is that Reding's blood-alcohol content would have been .0864% instead of .12% as registered by the breathalyzer.
The State moved to strike Reding's motion, and the court granted this motion. The court found that Reding did not establish that evidence of his blood-alcohol content was inadmissible. The court stated:
The court struck the motion so as to avoid the necessity of going forward with a hearing on it. Reding renewed his motion, and the court again denied it without a hearing.
At trial, Thomas Bumgarner, a Kane County deputy sheriff, testified. He was dispatched to an accident scene at approximately 8 p.m. on May 12, 1986. Upon his arrival, he saw a motorcycle lying on its side just off the roadway and a pickup truck in a nearby driveway. Officer Ronnie Grommes and an ambulance were at the scene. Grommes suggested that Bumgarner speak with the driver of the truck, Reding. Grommes also informed Bumgarner that Reding's breath smelled of alcohol.
Reding informed Bumgarner that he was driving west on Plank Road and, as he turned across the eastbound lane into his driveway, the motorcycle driven by Miraglia collided with his truck. Reding indicated that he did not see the motorcycle before impact. Reding also told Bumgarner that he had recently consumed a couple of beers at a local tavern. Bumgarner further testified that Reding's breath had a strong odor of alcohol, he was swaying, his speech was confused, his eyes were bloodshot and watery, and his appearance was "disheveled." Bumgarner administered two field sobriety tests to Reding, and Reding failed both tests. Bumgarner testified that at this point he felt Reding was under the influence of alcohol. Bumgarner informed Reding that he was under arrest and transported him to the sheriff's office.
Bumgarner testified that, upon arrival at the sheriff's office, Reding was informed of his rights, and he appeared to understand them. Reding submitted to a breathalyzer test. The result of this test was a blood-alcohol content of .12%.
John Dorko testified on direct examination that he is a breathalyzer technician responsible for recertifying breathalyzer machines. Dorko stated that he introduces a solution containing .10% alcohol into the machine, and if he receives a reading within .005% of .10% on two occasions, then he recertifies the machine. Dorko testified that he recertified the machine used by Reding on April 30, 1986, and on May 23, 1986.
Dorko testified on cross-examination that there is an assumption built into the breathalyzer machine. The assumption is that one unit of alcohol on the breath is equal to 2,100 units of alcohol in the blood. Dorko stated that, if a person has a lower breath to blood-alcohol ratio, that person's blood-alcohol content would be lower than that registered by the breathalyzer.
Defendant then attempted to question Dorko concerning tests he performed on the breathalyzer machine approximately 10 days prior to trial. These tests were performed as a result of a separate and unrelated case. The State objected and argued that this information was irrelevant as it pertained to a test performed eight months after the breathalyzer was used to test Reding. The court sustained this objection.
Eric Norwood, an accident reconstruction officer for the Illinois State Police, was then called to testify. Norwood testified that his services were requested by the Kane County sheriff's department. Norwood inspected the scene of the collision approximately four days after the accident. Norwood observed a skid mark and measured it to be 56 feet long. Norwood also conducted a drag factor test to determine the coefficient of friction of the roadway. The roadway was made of asphalt, fairly new and bordered by gravel shoulders. Norwood also visited the Kane County impound facility and examined the vehicles involved approximately seven days after the collision. Norwood discovered that the truck sustained damage to its right front fender, bumper, hubcap and hood. The motorcycle sustained damage to its exhaust system, front fender, headlamp assembly, turn signals, gas tank and handlebars. The motorcycle's lights, brakes, linkage and transmission were in working order. Through his investigation, Norwood discovered that at the time of the accident it was 58 degrees, clear, with no precipitation, and the sun was near the horizon in the west.
Norwood further testified that, based upon his investigation, it was his opinion that the motorcycle was traveling eastbound at approximately 50 miles per hour before applying its brakes and had slowed to approximately 20 to 25 miles per hour at the time of impact. The collision occurred in the eastbound lane of the roadway as the truck turned across this lane to enter a driveway. Norwood further opined that the location of the sun was not a factor in the accident, Reding's consumption of alcohol was a factor in the accident, and the accident was caused by Reding's improper tactics.
Dr. Daniel J. Brown, a toxicologist for the Illinois State Police, testified that alcohol is absorbed into the bloodstream at varying rates. Dr. Brown stated that a person weighing 185 pounds with a blood-alcohol content of .10% would experience a loss of visual and mental acuity, a slower reaction time and an impairment in judgment. Dr. Brown opined that it would be impossible for a 185-pound man to drink two 12-ounce beers in 1 1/2 hours and have a resultant blood-alcohol content of .12%. Dr. Brown testified that a person of such weight would have to drink approximately six 12-ounce beers in that period of time to obtain a blood-alcohol content of .12%.
On cross-examination, Dr. Brown acknowledged that the inhalation of the chemical toleune could cause effects in the body similar to the effects caused by ingestion of alcohol. However, Dr. Brown testified that toleune and isopropyl alcohol are rapidly excreted out of the body.
Roger Wuilleimier, testifying during defendant's case in chief, stated that Reding arrived at Wuilleimier's home at approximately 5:15 p.m. Reding was returning a truck to Wuilleimier. Reding stayed at Wuilleimier's residence for approximately one hour and consumed two 12-ounce beers. Over objection, Wuilleimier testified that he had consumed alcohol with Reding in the past, and Reding's place of business is near a tavern.
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