People v. Kuntz

607 N.E.2d 313, 239 Ill. App. 3d 587, 180 Ill. Dec. 419, 1993 Ill. App. LEXIS 28
CourtAppellate Court of Illinois
DecidedJanuary 15, 1993
Docket3-92-0300
StatusPublished
Cited by30 cases

This text of 607 N.E.2d 313 (People v. Kuntz) 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. Kuntz, 607 N.E.2d 313, 239 Ill. App. 3d 587, 180 Ill. Dec. 419, 1993 Ill. App. LEXIS 28 (Ill. Ct. App. 1993).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

Defendant Donald Kuntz was arrested on March 5, 1992, and charged with improper lane usage and driving under the influence of alcohol. Defendant submitted to a breathalyzer test which indicated a blood-alcohol concentration of 0.23 and his driver’s license was summarily suspended (see Ill. Rev. Stat. 1991, ch. 95½, pars. 11—501.1(d), (e)). Defendant filed a petition to rescind the summary suspension (see Ill. Rev. Stat. 1991, ch. 95½, par. 2—118.1) which was denied. Defendant appeals from the denial of his petition, contending that: (1) the trial court abused its discretion in sua sponte granting a continuance and allowing the State to reopen its case; and (2) the court erred in admitting certain evidence without a proper foundation and in violation of the best evidence rule. We reverse.

The 56-year-old defendant testified that he left work around 10:15 p.m. on March 5, 1992, and stopped in a tavern on the way home where he had two beers. Defendant also admitted taking “a couple of sips” from a pint bottle of vodka prior to starting work at 2:45 p.m. Defendant was subsequently stopped by Officer Patrick Murphy of the Braidwood police department at approximately 11:30 p.m. Defendant stated that he successfully completed one field sobriety test (the alphabet test) but he was unable to perform the one-leg stand test because of weakness in his ankles. Defendant denied that he was under the influence of alcohol. Defendant was first taken to the Braidwood police department and then to the Wilmington police department for a breathalyzer test. Defendant testified that he was not given any warnings prior to the breathalyzer test, nor was he issued any traffic citations until after the test was completed.

After defendant rested his case, the State moved for a directed finding with respect to paragraph five of defendant’s petition to rescind. Paragraph five alleged that the results of the breathalyzer test did not indicate a blood-alcohol concentration of 0.10 or more. The trial court denied the State’s motion, finding that the defendant had established a prima facie case with regard to this allegation.

Officer Murphy testified for the State that he stopped the defendant’s van at 11:25 p.m. after it twice crossed the center line of the road. Defendant had no problem producing his driver’s license and proof of insurance, but he smelled strongly of alcohol. Murphy testified that the defendant was unable to perform the field sobriety tests and defendant stated, “that I [Murphy] knew that he [defendant] was drunk, so why should we go on with any other of the tests?” Defendant was arrested, taken to the Braidwood police department, and issued citations for improper lane usage and driving under the influence of alcohol. Defendant was then transported to the Wilmington police department because there was no breathalyzer machine at Braidwood.

Murphy further testified that he was a certified breathalyzer operator, that defendant agreed to a breathalyzer test after receiving the statutory warning (see Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c)), and that he observed the defendant for 20 minutes prior to administering the test. Murphy turned on the breathalyzer machine and changed the mouthpiece, but he did not calibrate it or run any kind of check on it. Murphy identified the printout containing the results of the defendant’s breathalyzer test and indicated that it read 0.23. The printout was admitted into evidence over defendant's objection.

The State rested its case after Murphy’s testimony and the parties presented their closing arguments. The defendant argued that no evidence, such as log books, had been introduced to show that the breathalyzer machine had been tested for accuracy, nor was there any evidence that the machine was working properly at the time the test was administered. After the State’s closing argument, defense counsel again emphasized the lack of proof concerning the accuracy and certification of the breathalyzer machine, at which time the trial court interrupted and asked the assistant State’s Attorney if he “want[ed] time to bring in the log books.” Although the defendant objected, the court then granted a continuance until the next day to allow the State to reopen its case and present additional evidence.

The following day, again over defendant’s objection, Officer Murphy testified that prior to administering the breathalyzer test to the defendant the machine was “purged” by taking an air sample from the room. Copies of a log book showing that the breathalyzer machine had been calibrated on February 18, 1992, were later admitted into evidence over defendant’s objection. The defendant’s petition to rescind the statutory summary suspension was subsequently denied.

’ The defendant contends that the trial court abused its discretion in sua sponte granting a continuance and allowing the State to reopen its case. The State responds that this issue is moot because the trial court erred in initially finding that defendant had established a prima facie case for rescission. Alternatively, the State argues that the court properly allowed the State to reopen its case.

A summary suspension hearing is a civil proceeding at which the suspended motorist bears the burden of proof. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) Once a motorist has made a prima facie case that the breathalyzer test result did not accurately reflect his blood-alcohol concentration, the State can only avoid rescission by moving for admission of the test into evidence and laying the. necessary foundation, which includes evidence that the machine was regularly tested for accuracy and was working properly. (Orth, 124 Ill. 2d 326, 530 N.E.2d 210.) A prima facie case for rescission “may consist of any circumstance which tends to cast doubt on the test’s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol.” (Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.) The trial court’s determination of a prima facie case will not be disturbed on appeal unless it is against the manifest weight of the evidence. Orth, 124 Ill. 2d 326, 530 N.E.2d 210; People v. Graney (1992), 234 Ill. App. 3d 497, 599 N.E.2d 574.

In this case the defendant testified that his alcohol consumption was minimal, that he was able to perform a field sobriety test, and that he was not under the influence of alcohol. “[I]f the trial judge finds such testimony credible *** the burden shift[s] to the State to lay a proper foundation for the admission of the test results.” (Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.) Where the trial court’s findings are based on the credibility of the witnesses, we may not substitute our judgment for that of the court. (Graney, 234 Ill. App. 3d 497, 599 N.E.2d 574.) The trial court’s determination that defendant established a prima facie case for rescission was not against the manifest weight of the evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
607 N.E.2d 313, 239 Ill. App. 3d 587, 180 Ill. Dec. 419, 1993 Ill. App. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kuntz-illappct-1993.