People v. Thady
| Decision Date | 08 June 1971 |
| Docket Number | Gen. No. 11441 |
| Citation | 133 Ill.App.2d 795,270 N.E.2d 861 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Fred F. THADY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
L. Stanton Dotson, State's Atty., Coles County, Charleston, for plaintiff-appellant; Ronald Tulin, Asst. State's Atty., of counsel.
Robert Isham Auler, Champaign, for defendant-appellee.
This is an appeal by the People from an order of the Circuit Court of Coles County. The trial court sustained objection to the admissibility of certain testimony relating to a breath analysis test of the defendant. It is urged that such ruling has the effect of an order suppressing evidence and is appealable under Supreme Cort Rule 604 (Ill.Rev.Stats., 1969, c. 110A, sec. 604). The motion of the State's Attorney to recess the trial pending an appeal was granted.
The defendant was charged on November 29, 1969, with driving while under the influence of intoxicating liquor in violation of § 47 U.A.R.T. (then Ill.Rev.Stat., 1969, c. 95 1/2, sec. 144; now Ill.Rev.Stats., 1969 c. 95 1/2, sec. 11--501). After a series of continuances the case was called for trial on August 3, 1970, in the Magistrate Division of the Circuit Court of Coles County. The trial progressed without remarkable incident until the State's Attorney commenced to lay a foundation for the introduction of what is commonly called a breathalyzer test which had been administered to the defendant.
At this point defense counsel objected and out of the presence of the jury argument was had and certain stipulations entered into regarding subsection (d) of § 47 U.A.R.T. (then Ill.Rev.Stats., 1969, c. 95 1/2, sec. 144(d); now Ill.Rev.Stats., 1969, c. 95 1/2, sec. 11--501(d)).
There has been no material change as between these sections as a result of the 1969 codification, effective July 1, 1970. Then, and now, subsection (d) provided:
'(d) Chemical analysis of the person's * * * breath to be considered valid under this section must be performed according to uniform standards adopted by the State Department of Public Health, in cooperation with the Superintendent of State Highway Police. * * *'
The parties stipulated, inter alia, that 'the only standard, if it be such, that has been promulgated by the Department of Public Health for the use of the 'breath analyzer type device' is a standard that states that any breath analyzing machine must operate on photoelectric principle.' Thereupon, the Magistrate sustained objection to the introduction of testimony concerning the results of the test on the basis that the People had failed to prove adoption of standards as required by the statute and 'suppressed all evidence dealing with the chemical analysis of the Defendant's breath.' The State's Attorney moved to recess the trial for the purpose of taking this appeal; the defendant neither objected nor consented to the motion; the Magistrate granted the motion, recessed the trial and the People bring this purported appeal under Supreme Court Rule 604.
In their briefs and abstract the parties have ignored what we consider to be the fundamental question presented here, namely, the appealability of the order. We hold that the order is simply an evidentiary ruling and is not appealable.
Rule 604 provides for appeals by the State in certain situations, one of which is an order suppressing evidence. Superficially, this would seem to be such a situation.
However, any rule must find its birthright in a statute. Our Supreme Court was authorized by Section 120--1 of the Code of Criminal Procedure of 1963 to make rules for appeals by the State. It did make rules, including 604, and the statutory provisions of Section 120--1 were repealed by...
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People v. Flatt
...and mere evidentiary rulings. According to these cases, only the former are deemed to be appealable under the Rule. People v. Thady (1971), 133 Ill.App.2d 795, 270 N.E.2d 861; People v. Wheatly (1972), 5 Ill.App.3d 827, 284 N.E.2d 353; People v. Koch (1973), 15 Ill.App.3d 386, 389, 304 N.E.......
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People v. Montgomery
...in advance of trial. The court drew a distinction between the suppression of evidence and its exclusion citing People v. Thady (4th Dist. 1971), 133 Ill.App.2d 795, 270 N.E.2d 861, and People v. Koch (4th Dist. 1973), 15 Ill.App.3d 386, 304 N.E.2d 482, and stated that a motion to suppress w......
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People v. Young
...the State's case to determine the effect on the prosecution of excluding a particular piece of evidence. Citing People v. Thady (1971), 133 Ill.App.2d 795, 270 N.E.2d 861, and People v. Koch (1973), 15 Ill.App.3d 386, 304 N.E.2d 482, the court also indicated that the "motion to suppress," t......
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People v. Tomasello
...can appeal the granting of a motion to suppress. The Young and Flatt opinions expressly rejected the rationale of People v. Thady (1971), 133 Ill.App.2d 795, 270 N.E.2d 861, in which it was determined that the State's right to appeal was confined to motions to suppress based upon either sec......