People v. Zator

• Decision Date: 23 January 1991
• Docket Number: No. 1-88-2970,1-88-2970
• Citation: People v. Zator, 568 N.E.2d 162, 209 Ill.App.3d 322, 154 Ill.Dec. 162 (Ill. App. 1991)
• Parties: , 154 Ill.Dec. 162 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jeffrey ZATOR, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 162

568 N.E.2d 162

209 Ill.App.3d 322, 154 Ill.Dec. 162

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jeffrey ZATOR, Defendant-Appellant.

No. 1-88-2970.

Appellate Court of Illinois First District, Third Division.

Jan. 23, 1991.

Robert L. Rascia, DeJohn and Associates, Robert L. Rascia, Serpico, Novelle, Dvorak, Navigato, Ltd., Chicago, for appellant, Jeffrey Zator.

Jack O'Malley, State's Atty., Robert A. Novelle, Phillip M. Angelini, Renee Goldfarb, Walter P. Hehner and Edward J. Maloney, of counsel, Chicago, for appellee.

Presiding Justice CERDA delivered the opinion of the court:

After a jury trial, the defendant, Jeffrey Zator, was convicted of driving under the influence of alcohol (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501) and reckless homicide (Ill.Rev.Stat.1985, ch. 38, par. 9-3(a)) for the death of Thomas Dunn, a pedestrian. He was acquitted of driving under the influence of alcohol resulting in great bodily harm (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501(f)) to Scott Cordell, one of the passengers in his car. On appeal, the defendant asserts that (1) the trial court erred in denying his motion in limine to exclude the results of the breathalyzer test, which was not administered in accordance with the Illinois Department of Public Health Standards and Procedures; (2) the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt for the offense of reckless homicide; and (3) the trial court erred in failing to exclude the breathalyzer test result evidence, which was not probative of his blood alcohol concentration at the time of the incident.

On May 7, 1986, at 1:40 a.m., the defendant was driving west on 111th Street in Oak Lawn when his car collided with a pedestrian. Earlier in the evening, the defendant had been socializing with two friends, Scott Cordell and Darryl English. English testified that around 6:45 p.m., the three ate a cheeseburger dinner. Then, the defendant left to go to work and returned around 9:45 p.m. Cordell and English had been drinking, but the defendant had not yet had anything of an alcoholic nature to drink. English further testified that the three men went to a bar, arriving at 10:30 p.m. The three were drinking pitchers of beer, but the defendant drank less than the other two. The three men left that bar at 12:30 a.m. Outside the bar, Cordell started to jump up and down, scream, make remarks to people in cars and passers by, and generally act wild. The defendant drove to another bar with his two friends. Cordell was still acting up, so they stayed for only one beer and left around 1:30 a.m. The defendant was driving, with Cordell in the front seat and English in the back seat.

Darryl English further testified that, in the car, Cordell was still yelling, dancing around, singing, and sticking his head out the sunroof. When the defendant stopped at a red light at 111th Street and Cicero Avenue, Cordell stuck his head out the sunroof and began yelling. After the defendant's car left the stoplight, Cordell sat back down in the passenger seat, but then started climbing out the passenger window. His head and chest were out the window, and he was sitting on the door facing the driver's side. English yelled at him to get back in the car and the defendant reached to pull him back. All of a sudden, English heard a noise and Cordell vanished from the car. English had not seen a pedestrian on the roadway. He was of the opinion that the defendant had no problem operating the car and was not under the influence of alcohol at the time. In addition, two defense witnesses testified that they spoke with the defendant during the two hours he was at the bar. It was the opinion of both witnesses that the defendant was not under the influence of alcohol.

The defendant's testimony was substantially the same as English's. In addition, he testified that at the first bar, he drank three or four glasses of beer and ate two slices of pizza. At the second bar, he drank one beer. After leaving the intersection of 111th Street and Cicero Avenue, the defendant heard English scream, "get back in." The defendant turned to his right and saw Cordell hanging out the passenger window. The defendant reached for him, heard a bang, and Cordell was gone. The defendant crossed the railroad tracks, turned around, and returned to the scene of the accident. He had not previously seen a pedestrian on the roadway. When the police arrived at the scene, the defendant told them that he did not know what happened and that he had been drinking. The officer then asked him to blow into his face, which the defendant did. The defendant was placed under arrest, handcuffed, and transported to the police station.

There were three other witnesses to the accident. Two of the witnesses were in a car next to the defendant's at the stoplight. The other witness was driving the car behind the first witness's car. Although their testimonies differed somewhat as to the exact events leading up to the accident, they all testified that a passenger in the defendant's car was hanging out the car's sunroof while at the stoplight. After the defendant left the intersection and proceeded west, his car veered off the road at least once while the passenger was still hanging out of the car. They saw two bodies fly up into the air and land in the street. The defendant's car continued west, crossed the railroad tracks, then returned to the scene. None of these witnesses observed the defendant's condition at the time. They estimated the speed of the defendant's car from 45 to 60 miles per hour where the speed limit was 40 miles per hour. All the witnesses were one and one-half to two blocks behind the defendant's car at the time of the impact.

Officer Michael Osness, who was in charge of the accident scene, testified that he approached the defendant at the scene. He observed that the defendant had bloodshot and glassy eyes, had an odor of alcohol on his breath, and was disoriented and confused. His opinion was that the defendant was under the influence of alcohol at that time. The officer also testified that an examination of the car revealed that all the damage was to the right side of the car, with no damage to the front. In addition, the windshield was broken and dented in. The officer then went to the hospital to check on the condition of the two victims, and arrived at the police station at approximately 3 a.m. He observed the defendant from 3:05 to 3:40 a.m., during which time the defendant did not eat, belch, vomit, or take anything orally. The defendant was brought into an interview room at 3 a.m. and given his implied consent warnings at approximately 3:30 a.m. At 3:40 a.m., the defendant took a breathalyzer test, which registered a blood alcohol concentration of .14. The defendant then adequately performed the balance, walk and turn, and finger to the nose sobriety tests.

Officer Kerrigan, the evidence technician on duty that night, testified that he observed the defendant in the paddy wagon at the scene. He noticed an odor of alcohol on the breath of the defendant, who appeared to be confused. Kerrigan prepared the breathalyzer machine at approximately 3:05 a.m. and observed the defendant from 3:15 until 3:40 a.m., when the test was administered. During those 25 minutes, the defendant took nothing orally. The police officer also testified that when asked what he ate, the defendant said he ate some Dorito chips at 6:30 p.m.

The defendant testified that he had no difficulty completing the sobriety tests satisfactorily and submitted to a breath test. He further testified that the four or five beers he drank during the evening did not affect him at all. He did not think he was under the influence of alcohol that night.

An expert witness, Dr. Thomas O'Donnell, a pharmacist, testified that there were a number of factors that could affect the accuracy of the breathalyzer test. The breathalyzer machine measures the amount of alcohol in a person's lungs and multiplies it by a factor to determine the amount of alcohol in the blood. The 1 to 2100 ratio used assumes that every individual's breath has a blood ratio of 1 to 2100 even though that figure can vary from 1 to 1100 up to 1 to 3300. Dr. O'Donnell also testified about how alcohol is ingested into the system, absorbed by the system, and then burned off by the system. Factors that can accelerate or retard the absorption of alcohol into the system are the weight of the person, what and when he drank, and what and when he last ate. The witness's opinion was that a breathalyzer test would not accurately reflect the defendant's condition two hours earlier. Assuming that the defendant had four or five beers in two and one-half hours and that he ate pizza and a cheeseburger during the evening, Dr. O'Donnell estimated that the defendant's blood-alcohol content at 1:40 a.m. would have been between .05 and .06.

The defendant's motion in limine to exclude the breathalyzer test was denied. After the trial, a jury convicted him of driving under the influence of alcohol (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501) and reckless homicide (Ill.Rev.Stat.1985, ch. 38, par. 9-3(a)) in the death of the pedestrian, but acquitted him of driving under the influence causing great bodily harm (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501(f)) in the death of the passenger, Scott Cordell. He was sentenced to 18 months' intensive probation and fined $500.

The defendant asserts that the trial court erred in denying his motion in limine to exclude the results of the breathalyzer test since it was not administered in accordance with the Illinois Department of Public Health (IDPH) Standards and Procedures. In order to present evidence of the breathalyzer test results at trial, Illinois statute requires compliance with the IDPH regulations. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.2(a)(1).) Those standards, in pertinent part, are as follows:

"(a)...