People v. Boshears

592 N.E.2d 1187, 228 Ill. App. 3d 677, 170 Ill. Dec. 507, 1992 Ill. App. LEXIS 752
CourtAppellate Court of Illinois
DecidedMay 8, 1992
Docket5-91-0254
StatusPublished
Cited by11 cases

This text of 592 N.E.2d 1187 (People v. Boshears) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Boshears, 592 N.E.2d 1187, 228 Ill. App. 3d 677, 170 Ill. Dec. 507, 1992 Ill. App. LEXIS 752 (Ill. Ct. App. 1992).

Opinion

JUSTICE WELCH

delivered the opinion of the court:

Defendant, John J. Boshears, appeals from an order of supervision entered by the circuit court of Edwards County on April 5, 1991, upon jury verdicts of guilty of driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(aX2)), and driving a motor vehicle while the alcohol concentration in his blood or breath was .10% or more. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(1).) Defendant raises four issues on appeal: (1) whether a proper foundation was established to admit the results of the breath test where the defendant was prevented from viewing the visual display of the test results until the test was completed; (2) whether a proper foundation was established to admit the results of the breath test where the breathalyzer operator testified that he was licensed to perform the test but his license was not admitted into evidence; (3) whether the trial court erred in denying defendant a new trial where the arresting police officer and another police officer testified that, based upon their personal observations of the defendant at the time of his arrest, in their opinions defendant’s blood-alcohol content was .10 or above; and (4) whether the trial court erred in excluding defendant’s proffered evidence that an additional charge was filed against defendant after he pleaded not guilty and demanded a jury trial, offered to show the bias or motive of the State. We set forth the facts only as they are necessary to resolve these issues.

On the evening of March 17, 1990, defendant was stopped at a police roadside safety check (roadblock) in the City of Albion. He was then and there charged by citation with the offense of driving under the influence of alcohol in violation of section 11 — 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)). He was taken into custody and submitted to a breath test of his blood-alcohol concentration. During the administration of this test and while defendant was blowing into the machine, Illinois State Police Trooper Phil Goodman, who administered the test, covered with a card the visual display of the test results so that defendant could not view the display while the test was in progress. Upon completion of the test, defendant was allowed to view the visual display of the test results, which showed defendant’s blood-alcohol concentration to be 17.

On May 29, 1990, defendant was arraigned. He pleaded not guilty and demanded a jury trial. Subsequent to this, on July 17, 1990, an amended complaint was filed against the defendant charging him with driving a motor vehicle while under the influence of alcohol in violation of section 11 — 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)), and operating a motor vehicle with an alcohol concentration in excess of .10% in violation of section 11— 501(aXl) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(1)). The first count of the amended complaint was identical to the charge contained in the citation. The second count of the amended complaint constituted a new charge.

The cause came on for jury trial on October 23, 1990. Defendant was found guilty by the jury on both counts. On April 5, 1991, the trial court entered an order for supervision placing the defendant on supervision for a period of 18 months and ordering him to pay a fine of $750. Defendant filed his notice of appeal that same date.

Defendant’s first argument on appeal is that a proper foundation was not established for admission of the results of the breath test because defendant was not permitted to view the visual display of the test results during administration of the test, but was only allowed to view the visual display of the test results upon completion of the test. Illinois State Police Trooper Phil Goodman, who administered the breath test to defendant, testified that while defendant was actually taking the test, Goodman covered with a card the visual display of the test results so that defendant could not view the display while the test was in progress. Goodman did this because very often when defendants see the results approach the legal limit of .10, they will stop blowing into the machine and will not finish the test. By covering the display, neither the defendant nor Goodman can see the results until the test is completed. This assures an accurate, completed test. When defendant completed the test, he was allowed to view the visual display of the results.

Defendant contends that the test was not performed in accordance with the uniform standards adopted by the Illinois Department of Public Health and was therefore inadmissible. Section 11 — 501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2) provides that the results of breath tests are admissible in criminal trials for driving trader the influence of alcohol or driving with a blood-alcohol concentration in excess of .10 provided the test is performed according to standards promulgated by the Department of Public Health in consultation with the Department of State Police. Section 510.40 of those standards provides:

“Any breath testing instrument to be approved must automatically display the test results visually to the arrested person and provide for an automatic printed record of the reading of the testing device made immediately prior to the recording of the tested person.” (Illinois Department of Public Health, Standards and Procedures for Testing for Alcohol and/or Other Drugs By Breath, Blood & Urine Analysis, §510.40 (as revised December 1,1988) (hereinafter Standards).)

Section 510.60 of those Standards provides that, “[bjefore a breath analysis, a room-air analysis must be conducted, the results of which must be less than 0.01 reading.” That section also provides that a breath test shall consist of only one breath analysis. Standards, §510.60.

Defendant argues that, because he was not allowed to view the visual display of the test results during the progress of the test, the test was not conducted in accordance with section 510.40 of the Standards, which requires that the instrument visually display the test results to the defendant. Defendant further argues that it is also “evident” that the results of the room-air analysis were not visually displayed to the defendant after the sample was taken because the machine is reset before the breath test is administered and the visual display of the room-air analysis is lost. Because Trooper Goodman had covered the visual display, defendant argues, defendant could not have viewed the result of the room-air analysis. Defendant argues that this also violates section 510.40 of the Standards. Defendant concludes that, because the breath test was not administered in accordance with the Standards, the results were inadmissible and the trial court erred in allowing it into evidence.

We start by addressing defendant’s argument that the Standards were violated because it is “evident” that defendant was not allowed to view the results of the room-air analysis because Trooper Goodman had covered the visual display. We do not find this to be “evident” at all. There is absolutely no evidence in the record to indicate, or from which to infer, that Trooper Goodman covered the visual display of the room-air analysis.

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Bluebook (online)
592 N.E.2d 1187, 228 Ill. App. 3d 677, 170 Ill. Dec. 507, 1992 Ill. App. LEXIS 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-boshears-illappct-1992.