People v. Van De Rostyne
| Citation | 320 N.E.2d 270,26 Ill.App.3d 1048 |
| Decision Date | 12 December 1974 |
| Docket Number | No. 73--143,73--143 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Frank J. VAN DE ROSTYNE, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
John J. Bowman, State's Atty., Malcolm F. Smith, Asst. State's Atty., Wheaton, for plaintiff-appellant.
Marco & Mannina, Downers Grove, for defendant-appellee.
Defendant was charged with driving a vehicle while under the influence of intoxicating liquor. Subsequent to impanelling of a jury but before commencement of trial, defendant moved to suppress evidence obtained as the result of a breathalizer test. After ordering the evidence suppressed, the court declared a mistrial. The State appeals contending that the trial court erred in its ruling. The defendant defends by characterizing the ruling as one relating to the exclusion of evidence and not to the suppression of evidence contemplated under Supreme Court Rule 604, Ill.Rev.Stat.1973, ch. 110A, § 604. Upon this premise, he argues that the appeal should be dismissed.
Section 11--501.1 of the Illinois Rules of the Road (Ill.Rev.Stat.1972 Supp., ch. 95 1/2, § 11--501.1), in effect at the time of the occurrence and commonly referred to as the 'implied consent' law, provides in part that a person charged as the defendant herein shall be requested to submit to a chemical analysis of his breath to determine the alcoholic content of his blood. The test is to consist of 2 breath analyses taken not less than 15 minutes apart. The testing device is to provide an automatic printed test record and a duplicate original is to be furnished the one tested. The statute further provides for uniform standards and procedures as to the operation of the unit together with rules and regulations for examining and certifying the accuracy of the breath-testing instrument.
The officer who conducted the test stated that between the first and second analysis he changed the test ampoule which, ordinarily, he does not do. He explained his action by relating that the first reading registered .25% Alcohol; that during his schooling in the operation of the unit he was informed that a good test could not be obtained if a reading exceeds .50% Alcohol; that he assumed when the second analysis was taken and the results combined, the total of the two might exceed the unit's limitations and concluded that it would therefore be proper procedure to replace the ampoule prior to the second analysis. When queried as to whether the instructions for operation of the unit allowed the change of ampoules during a test, he responded that he did not know. Instructions for operation of the unit were not introduced into evidence.
In accordance with section 114--12(e) of the Code of Criminal Procedure (Ill.Rev.Stat.1971, ch. 38, § 114--12(e)) the court found the purpose of the 'implied consent law' provisions was ...
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People v. Young
...prosecution. Given the defendant's concession, the appellate court therefore reversed the trial court's order. People v. Van De Rostyne (1974), 26 Ill.App.3d 1048, 320 N.E.2d 270, aff'd (1976), 63 Ill.2d 364, 349 N.E.2d This court affirmed that result, but for substantially different reason......
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People v. Godbout
...the ampoules were destroyed in accordance with standard operating procedures of breathalyzer testing. See People v. Van de Rostyne (2nd Dist. 1974), 26 Ill.App.3d 1048, 320 N.E.2d 270, Aff'd and remanded (1976), 63 Ill.2d 364, 349 N.E.2d Defendant, however, seeks a new interpretation of a p......
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People v. Van De Rostyne
...had erred in suppressing the results of the breathalyzer test, reversed the order granting a mistrial, and remanded the cause. (26 Ill.App.3d 1048, 320 N.E.2d 270.) We granted leave to appeal because of an asserted conflict in the decisions of the appellate court concerning the appealabilit......
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People v. Macaluso
...ruling 'to be patently evidentiary in nature and hence not appealable.' People v. Thady, supra. We have noted People v. Van De Rostyne, Ill.App. Second District, 320 N.E.2d 270, and particularly note that it dealt with the application of the exclusionary rule with reference to allegedly imp......