People v. Torres

• Decision Date: 18 September 1987
• Docket Number: No. 2-86-0455,2-86-0455
• Citation: People v. Torres, 513 N.E.2d 1142, 160 Ill.App.3d 643 (Ill. App. 1987)
• Court: Appellate Court of Illinois
• Parties: , 112 Ill.Dec. 533 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Santos A. TORRES, Defendant-Appellant.

Page 1142

513 N.E.2d 1142

160 Ill.App.3d 643, 112 Ill.Dec. 533

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Santos A. TORRES, Defendant-Appellant.

No. 2-86-0455.

Appellate Court of Illinois Second District.

Sept. 18, 1987.

Rehearing Denied Oct. 19, 1987.

Terrence Michael Jordan, Chicago, for Santos A. torres.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, State's Attys. Appellate Pros., Elgin, David A. Bernhard, State's Attys. Appellate Pros., Elgin, for the People.

Justice REINHARD delivered the opinion of the court:

Defendant, Santos A. Torres, appeals from the May 15, 1986, judgment of the circuit court confirming the statutory suspension of his driving privileges.

Three issues are raised on appeal: (1) whether the trial court erred when it admitted defendant's breathalyzer test results where the State failed to assert compliance with the 20-minute continuous observation period as a foundation to the test's admissibility; (2) whether the trial court erred when it admitted the breathalyzer operator's oral testimony of his own certification; and (3) whether the trial court erred in placing the burden of proof at the summary suspension hearing on defendant.

On March 28, 1986, defendant was charged with driving while under the influence of alcohol. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501(a).) Following defendant's submission to a breathalyzer test which revealed an alcohol concentration of .16, the arresting officer later submitted a sworn report to the circuit court and the Secretary of State and notice of the statutory summary suspension to defendant in conformance with sections 11-501.1(d) and (f) of the Illinois Vehicle Code (Ill.Rev.Stat.1985, ch. 95 1/2, pars. 11-501(d), (f)). Defendant filed a petition for judicial review of his statutory summary suspension.

At the hearing, defendant testified that Officer Daniel Callahan pulled him over at approximately 4:15 a.m. on March 28, 1986. After defendant had left his vehicle, Callahan told him that he was going to perform a test. There was a disturbance with a passenger in defendant's vehicle, and no tests were given. He was placed under arrest 15 minutes after the initial stop. Callahan did administer a breathalyzer test from 20 to 25 minutes after his arrival at the police station. A second officer, Officer Biniewicz, had transported defendant to the police station and placed him in a holding cage.

Officer Callahan testified that he stopped defendant because no rear registration plate light was operating on the vehicle. As the defendant approached him, Callahan noticed a pungent odor of alcohol, that defendant's balance was unsure and he had to hold onto the vehicle as he walked, and that defendant spoke in a very soft and quiet voice. Callahan stated that he did administer a performance test at the scene and that defendant's ability to stand and walk a straight line appeared unsure. Thereafter, at approximately 4:20 a.m., Callahan arrested defendant for driving while under the influence of alcohol and proceeded to transport defendant's passenger to the police station where he was placed in a holding cage. Callahan testified that three to five minutes elapsed between the time he arrived at the station and the time he began attending to the defendant. Defendant was given the statutory summary suspension warnings at the station. Officer Callahan conceded that his written report indicated the warnings were given at 4:20 a.m., and speculated that any discrepancy in the times was due to his approximation of the time of stopping defendant and differences in the clock at the station and his own watch.

At 4:49 a.m., Officer Callahan administered a breathalyzer test to defendant. Over defendant's objections, the trial court allowed Callahan to testify that he was a certified breathalyzer operator, that the machine used to administer the test was certified by the Department of Public Health and was working properly, and that the result of the test administered to the defendant was .16 alcohol concentration. The trial court found in favor of the State, and defendant filed this appeal.

The threshold determination to be made in this case is upon whom lies the burden of proof in a statutory summary suspension hearing held pursuant to section 2-118.1 of the Illinois Vehicle Code (Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1). Section 2-118.1 was added by P.A. 84-272, became effective January 1, 1986, and replaced subsection (c) of section 11-501.1 which previously had provided for this hearing. Section 2-118.1(b), in pertinent part, provides that "[t]he hearing may be conducted upon a review of the law enforcement officer's own official reports; provided however, that the person may subpoena the officer." Prior to the hearing in this case, the trial court ruled that defendant had the burden of proof. There is a conflict in the decisions of the appellate court on this issue. This district has held that the defendant as petitioner in the proceeding bears the burden of proof (People v. Sanders (1987), 155 Ill.App.3d 759, 763, 108 Ill.Dec. 336, 508 N.E.2d 497; People v. Griffith (1987), 153 Ill.App.3d 856, 861, 106 Ill.Dec. 723, 506 N.E.2d 430), as has the fourth district (People v. Blythe (1987), 153 Ill.App.3d 292, 297-98, 106 Ill.Dec. 96, 505 N.E.2d 402, appeal denied (1987), 115 Ill.2d 544, 110 Ill.Dec. 459, 511 N.E.2d 431). The third district, however, has held that this burden should be on the State. (People v. Orth (1987), 154 Ill.App.3d 144, 146, 107 Ill.Dec. 69, 506 N.E.2d 960, leave to appeal pending.) For the reasons stated in the previous opinions of this court and as set forth in the fourth district opinion of People v. Blythe (1987), 153 Ill.App.3d 292, 106 Ill.Dec. 96, 505 N.E.2d 402, we continue to hold that the burden of proof in this hearing lies with the petitioner.

Because the summary suspension review hearing is civil in nature (Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1(b)), the trial court must find that defendant has met his burden of proof by a preponderance of the evidence. (People v. Sanders (1987), 155 Ill.App.3d 759, 763, 108 Ill.Dec. 336, 508 N.E.2d 497.) The findings of the trier of fact with regard to whether this burden of proof has been met will only be overturned where such findings are palpably against the manifest weight of the evidence. (People v. Sanders (1987), 155 Ill.App.3d 759, 763, 108 Ill.Dec. 336, 508 N.E.2d 497.) A finding is against the manifest weight of the evidence where an opposite conclusion is clearly evident from the record. People v. Jacquith (1984), 129 Ill.App.3d 107, 117, 84 Ill.Dec. 357, 472 N.E.2d 107.

The record in this case reflects that defendant failed to produce any evidence to challenge either the State's compliance with the 20-minute continuous observation period prior to the administration of the...