People v. Van Bellehem

907 N.E.2d 922, 389 Ill. App. 3d 1129
CourtAppellate Court of Illinois
DecidedMay 7, 2009
Docket5-07-0503, 5-07-0638 cons.
StatusPublished
Cited by4 cases

This text of 907 N.E.2d 922 (People v. Van Bellehem) 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. Van Bellehem, 907 N.E.2d 922, 389 Ill. App. 3d 1129 (Ill. Ct. App. 2009).

Opinion

JUSTICE STEWART

delivered the opinion of the court:

The defendant, Heidi E. Van Bellehem, was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11 — 501(a)(2) (West 2006)). The trial court granted the defendant’s motion to suppress the results of the breath test administered after her arrest. The parties later stipulated that the evidence that had been presented at the hearing on the motion to suppress would also be presented at the hearing on the defendant’s petition to rescind the summary suspension of her driver’s license. See 625 ILCS 5/2 — 118.1 (West 2006). The court granted the petition to rescind. The State appeals from those orders in this consolidated appeal. The State argues that the trial court’s orders granting the motion to suppress and the petition to rescind should be reversed. We agree.

BACKGROUND

After her arrest for DUI, the defendant filed a “Motion to Exclude Breath Test Results.” She alleged that she had not been continuously observed for at least 20 minutes before the breath test and that she had not been deprived of foreign substances during the observation period, in violation of the Illinois Administrative Code (Administrative Code) regulations controlling the administration of breath-testing of DUI suspects (breath-test regulation). 20 Ill. Adm. Code §1286.310, amended at 28 Ill. Reg. 10038, eff. June 30, 2004. Section 11— 501.2(a)(1) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11— 501.2(a)(1) (West 2006)) requires that a chemical analysis of a person’s breath be conducted according to the standards and regulations set by the Department of State Police (Department). Those standards and regulations are embodied in the Administrative Code regulations referred to above.

The evidence presented at the hearing on the motion to suppress is as follows. Illinois State Trooper Ron Will arrested the defendant for DUI during the early morning of April 21, 2007. The court admitted and reviewed the videotape of the defendant’s arrest. The videotape depicted Will’s observation of the defendant and her conversations with him. Will testified that he began his observation of the defendant at 1:20 a.m., according to his wristwatch, which he knew did not gain or lose time. Will began his observation when he was leaving the scene of the arrest. At that time, the defendant was sitting in the front passenger seat of his squad car. He testified that he had a clear view of her and that he continually monitored her. He testified that there was nothing in her mouth and that she could not put anything in her mouth because she was handcuffed and nothing was within her reach. He testified that during the observation period, the defendant talked to him. He would have known if she had anything in her mouth because it would have “changed her speech.”

Will testified that upon arrival at the Effingham County jail at 1:27 a.m., he gathered his paperwork and walked around the car to open the door for the defendant. After escorting her into the jail, he removed her handcuffs. Correctional officer Justin Finfrock went with Will and the defendant to the Intoxilyzer room, where they continued to observe her. Will testified that he requested Finfrock to accompany him during the observation period because the defendant was “very emotionally upset,” and “she had said that she had taken a Valium.” Will also wanted another officer in the room with him because the defendant was a female. During the observation period, Will did not lose sight of the defendant. He testified that he did not see her put anything in her mouth. He read her the warning to motorists that is required by section 11 — 501.1(c) of the Vehicle Code (625 ILCS 5/11— 501.1(c) (West 2006)). Will administered the breath test to the defendant at 1:48 a.m. The test showed that the defendant had a blood-alcohol content of .168, more than twice the legal limit for one driving a vehicle.

The defendant acknowledged that the videotape depicted her and Will as they were arriving at the jail. She testified that both Will and Finfrock sat with her in the room where her breath was tested but that Will did not remain in the room the entire time. Will testified that, although he left very briefly, he did not lose sight of the defendant. She testified that she had gum in her mouth from the moment she was arrested through the time she took the breath test. Will testified that she “had no gum in her mouth.” The defendant testified that she always keeps gum in her mouth to freshen her breath but does not chew it. She testified that she had gum in her mouth during her testimony but had not chewed it.

Both the State and defense counsel argued that the case of People v. Bonutti, 212 Ill. 2d 182, 817 N.E.2d 489 (2004), controlled the trial court’s decision. Defense counsel argued that Bonutti required the court to suppress the evidence of the breath test because the defendant had gum in her mouth during the test and Will did not ask any questions or take any actions to confirm his belief that she had nothing in her mouth. The State argued that the arresting officer had complied with the breath-test regulation and that the evidence showed that the defendant did not have anything in her mouth.

The trial judge found that the quality of the videotape was “very, very poor” but that he “did not see anything in her mouth.” The judge stated that when he could see the defendant’s face on the videotape, “she did not appear to be chewing anything,” and he did not notice any hesitancy in her speech. The court stated that the issue was whether the motion should be granted on the defendant’s testimony alone without any medical evidence to support her claim. Defense counsel acknowledged that he could not provide any evidence in support of the defendant’s claim that she had gum in her mouth. The defendant did not present any evidence to show that gum in her mouth would affect the breath-test result. The court ruled that the language of the breath-test regulation — that the defendant must be deprived of alcohol or foreign substances during the 20-minute observation period — imposed on the arresting officer “some obligation.” The court found as follows:

“THE COURT: There was no indication here other than the fact that no one, including this Court, observed any sign outwardly that she had anything in her mouth. In fact, I will state for the record, um, I don’t believe she had anything in her mouth. But that opinion does not contradict her testimony under oath in this court.”

The judge granted the defendant’s motion but stated again that he did not “think she had anything in her mouth.” The court ruled that the arresting officer should have either asked the defendant if she had anything in her mouth or asked her to open her mouth so that he could look inside. The court found that since the arresting officer did neither, he had not complied with the breath-test regulation. Based upon those findings, the court granted the defendant’s motion to suppress the breath-test results.

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Related

People v. Ernsting
2018 IL App (5th) 160330 (Appellate Court of Illinois, 2018)
People v. Henry
924 N.E.2d 1126 (Appellate Court of Illinois, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
907 N.E.2d 922, 389 Ill. App. 3d 1129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-van-bellehem-illappct-2009.