People v. Kamide

626 N.E.2d 337, 254 Ill. App. 3d 67, 193 Ill. Dec. 304, 1993 Ill. App. LEXIS 2025
CourtAppellate Court of Illinois
DecidedDecember 30, 1993
Docket2-92-0224
StatusPublished
Cited by16 cases

This text of 626 N.E.2d 337 (People v. Kamide) 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. Kamide, 626 N.E.2d 337, 254 Ill. App. 3d 67, 193 Ill. Dec. 304, 1993 Ill. App. LEXIS 2025 (Ill. Ct. App. 1993).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

The defendant, Adrian Kamide, was charged with driving under the influence (Ill. Rev. Stat. 1991, ch. 95V2, par. 11 — 501(a)(2) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(2) (West 1992))), driving with an alcohol concentration of .10 or greater (Ill. Rev. Stat. 1991, ch. 95V2, par. 11 — 501(a)(1) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(1) (West 1992))), and improper lane usage (Ill. Rev. Stat. 1991, ch. 95V2, par. 11 — 709 (now 625 ILCS 5/11— 709(a) (West 1992))). After a jury trial, defendant was found guilty of driving with an alcohol concentration of .10 or more (Ill. Rev. Stat. 1991, ch. 95x/2, par. 11 — 501(a)(1) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(1) (West 1992))) and improper lane usage (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 709(a) (now 625 ILCS 5/11— 709(a) (West 1992))), and not guilty of driving under the influence (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(a)(2) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(2) (West 1992))). Defendant was sentenced to one year of court supervision and he was ordered to pay a fine.

Defendant appeals, contending that the trial court erred in not instructing the jurors that consumption of Ventolin, a drug defendant inhaled for his asthma, was not the same as consumption of alcohol. Defendant also contends that the jurors were improperly instructed on the elements of improper lane usage.

The record presented on appeal consists of a common-law record, a supplemental common-law record containing, inter alia, a partial bystander’s report, and a portion of the report of proceedings including: (1) the testimony of defendant’s expert witness, Emmett Harmon; (2) the hearing on defendant’s post-trial motion; (3) arguments regarding certification of a partial bystander’s report; and (4) the sentencing hearing. The trial judge certified only a portion of the partial bystander’s report.

Emmett Harmon, defendant’s expert witness, was a chemist. He testified that he was familiar with breathalyzer machines, specifically the Intoxilyzer model 4011AS, and the process by which they registered alcohol in the breath. The machines measured infrared absorption. Harmon explained that different chemicals or different chemical bonds absorb infrared light at different wave lengths and the rate of absorption can identify the particular chemical bond in a molecule. Alcohol-related compounds absorb at 3.8 to 3.9 microns.

Harmon testified that there are many types of alcohol-related compounds, which have a hydroxyl group. That is, they have a carbon atom singly bonded to an oxygen atom which is singly bonded to a hydrogen atom. One type of alcohol-related compound is the alcohol that people commonly drink to become intoxicated, ethyl alcohol, also known as ethanol. Harmon was familiar with the drug called Ventolin, used as a bronchial dilator for asthmatics. The active ingredient in Ventolin is albuterol, an alcohol type compound. Three alcohol groups are in the molecule, and the breathalyzer would register for Ventolin. This is because the breathalyzer machine is designed to detect any molecular structure that will absorb infrared radiation at a level of 3.8 to 3.9 microns.

Harmon testified that if someone inhaled two sprays of Ventolin at 2 p.m., two sprays at 3:30 p.m., two sprays at 4:30 p.m., and then blew into the intoxilyzer 4011AS at 6:20 p.m., the value of the albuterol would be approximately .000399 of a gram. According to Emmett, just under .0004 of a gram of albuterol would register .14 on the breathalyzer. The record indicates that defendant’s breath test was given at 6:20 p.m. on February 23, 1991, and the readout was .14%.

The trial court agreed to certify a partial bystander’s report prepared by defendant with certain corrections thereto. The report, as certified by the trial court, indicated that: (1) the defense orally objected to the State’s instruction on improper lane usage, but never tendered a written instruction of its own; (2) defense counsel and the prosecutor agreed that the court reporter and clerk of the court could be released while the jury was deliberating so there was no verbatim transcript of what occurred during deliberations; (3) the jurors sent a note to the judge asking if the consumption of “venelyn [sic]” was the same as consumption of alcohol; and (4) defense counsel requested that the trial court answer the jurors’ question in the negative, but the court instructed the jurors that they were to decide the case on the testimony, exhibits and instructions which they had received and heard.

The trial court further certified that: (1) defendant testified that he had ingested the asthma spray shortly before he was pulled over by the police officer; (2) defendant testified that he had been at McCormick Place taking machinery apart which had to do with bottling or canning of alcoholic beverages when alcohol spilled on him; (3) the police officer testified that he smelled alcohol on defendant; and (4) the police officer found asthma breath spray in defendant’s possession.

Defendant first contends that the trial court erred in refusing to instruct the jurors that Ventolin was not “alcohol” for purposes of determining whether defendant was guilty of driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(a)(1) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(1) (West 1992))). A copy of the jurors’ note, sent to the judge during deliberations, is in the common-law record. The note read, “Is the consumption of venelyn [sic] considered consumption of alcohol?” Defense counsel asked that the question be answered in the negative, but the trial court responded to the jurors’ question with a note which read, “You are to decide the case on the testimony, exhibits and instructions which you have received and heard.”

Before we analyze the propriety of the trial court’s refusal to instruct the jurors that Ventolin was not alcohol for purposes of the offense with which defendant was charged, we address the State’s argument that defendant has failed to present an adequate record for appeal. Specifically, the State argues that the defendant failed to file a bystander’s report and the record that has been assembled is insufficient to demonstrate the prejudice or harm to defendant. We do not agree.

The defendant has the burden of presenting a sufficient record, and if the record on appeal is incomplete, the reviewing court will indulge in every reasonable presumption in favor of the judgment appealed from, including that the trial court acted correctly. (People v. Bruhn (1977), 51 Ill. App. 3d 269, 271.) When the record is incomplete, a reviewing court should not guess as to the harm to a defendant. (People v. Edwards (1978), 74 Ill. 2d 1, 7.) Defendant filed a partial bystander’s report, a portion of which was certified by the trial court over the State’s objection.

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Cite This Page — Counsel Stack

Bluebook (online)
626 N.E.2d 337, 254 Ill. App. 3d 67, 193 Ill. Dec. 304, 1993 Ill. App. LEXIS 2025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kamide-illappct-1993.