People v. Rigsby ( 2008 )

NO. 5-06-0639
N O T IC E
Decision filed 06/24/08. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 06-CF-877
)
DEAN RIGSBY, ) Honorable
) John Baricevic,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________________
JUSTICE WELCH delivered the opinion of the court:
After a jury trial, the defendant, Dean Rigsby, was found guilty of driving under the
influence of alcohol with a blood-alcohol content of .08 or more (625 ILCS 5/11-501(a)(1)
(West 2004)). On appeal, the defendant argues that the State failed to prove him guilty
beyond a reasonable doubt because the State failed to prove that the breath-analysis
instrument was properly certified before and after the defendant's breath test.
BACKGROUND
On May 25, 2006, the defendant was arrested by Officer Robert Boehm of the
Lebanon police department for driving under the influence of alcohol with a blood-alcohol
content of .08 or more. In the amended criminal information, dated July 7, 2006, the
defendant was charged with aggravated driving under the influence in violation of section
11-501(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(1) (West 2004)). A jury
trial was held on October 9, 2006, in which the following evidence was produced.
Officer Boehm, the only witness, testified that at approximately 1:45 p.m., a motorist
alerted him to a red pickup truck on the side of the road with a white male slumped over the
1
steering wheel. When Boehm arrived, he found the pickup truck still running and the
defendant slumped over the steering wheel, unconscious, with his foot on the brake. The
officer also testified that he saw two open beer cans in the bed of the truck and one open beer
can on the truck's floorboard. Boehm unsuccessfully attempted to wake the defendant and
then called for an ambulance. Before the ambulance arrived, the defendant woke
momentarily, asked Boehm for a kiss, and said "Alikazam" before passing out again. The
paramedics arrived, examined the defendant, and told Boehm they believed that the
defendant was intoxicated and that he did not need to go to the hospital. Boehm testified he
noticed that the defendant's eyes were red and glassy and that the defendant's speech was
slurred and very thick-tongued. He also testified that the defendant smelled strongly of
alcohol and that the defendant was unable to perform a field sobriety test because the
defendant was unable to stand and maintain consciousness. Boehm assisted the defendant
to the police car and transported him to the Lebanon police department.
Boehm testified that on May 25, 2006, he was certified and licenced by the State of
Illinois to operate the EC-IR instrument, a machine that measures a person's blood-alcohol
content. He also testified that Clyde Matthews certified the machine on April 12, 2006.
Boehm observed the defendant for 20 minutes and then administered a breath test to the
defendant, after doing a blank check on the machine. "People's Exhibit No. 1" was the EC-
IR instrument printout of the defendant's breath-test results. Boehm identified the printout
as being from the defendant's test, explained the blank-check reading, and testified that the
printout indicated that the defendant's blood alcohol was .276, more than three times the legal
limit of .08. Boehm testified that he recorded the results of the defendant's breath test in the
breath-analysis instrument logbook. The defendant did not object to this testimony.
On cross-examination, the defendant showed Boehm "Defendant's Exhibit No. 1," a
photocopy of two pages of the breath-analysis instrument logbook, the first sheet dated
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March 9, 2006, to May 25, 2006 (first logsheet), and the second sheet dated April 19, 2006,
to May 25, 2006 (second logsheet). Boehm testified that the entries are normally made in
chronological order and that the defendant's test was recorded on the last line of the first
logsheet. The entry above the defendant's in the logbook, also dated May 25, 2006, was by
Clyde Matthews, but it was crossed out. The second logsheet had an entry on May 25, 2006,
by Clyde Matthews indicating that the machine had been certified on that date, and this entry
was not crossed out. Boehm testified that the time was not recorded in the logbook
indicating when M atthews performed the certification check on May 25, 2006. Boehm also
stated that he had brought the entire logbook with him to the trial.
After the redirect examination of Boehm, the State moved to introduce "People's
Exhibit No. 1," the printout showing the defendant's breath-test blood-alcohol content of
.276. The court asked the defendant if there was any objection, and he said no. The court
admitted the breath-test results without objection.
The jury found the defendant guilty of driving under the influence. The defendant was
sentenced to 180 days in jail, with 177 days credited for time served, and 2½ years of
probation.
ANALYSIS
On appeal, the defendant argues that the State failed to prove him guilty beyond a
reasonable doubt because the State failed to prove that the EC-IR instrument had been
properly certified for accuracy by the Department of State Police, as required by 20 Ill. Adm.
Code §1286.200 (eff. June 30, 2004).
Under section 11-501.2(a) of the Illinois Vehicle Code (Code), "evidence of the
concentration of alcohol *** in a person's blood or breath at the time alleged, as determined
by analysis of the person's blood, urine, breath[,] or other bodily substance, shall be
admissible." 625 ILCS 5/11-501.2(a) (West 2004). This section of the Code then authorizes
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the Director of State Police to approve satisfactory techniques or methods to certify the
accuracy of breath-testing equipment. 625 ILCS 5/11-501.2(a)(1) (West 2004). Under the
regulation promulgated by the Department of State Police, a rebuttable presumption that the
breath-testing instrument was accurate arises if the following four conditions are met: (1) the
breath-analysis instrument was approved, (2) the accuracy check prior to the defendant's test
was within the accuracy tolerance, (3) no accuracy check was performed after the defendant's
test or an accuracy check was performed after the defendant's test and it was within the
accuracy tolerance, and (4) the defendant's test occurred not more than 62 days after the last
accuracy check. 20 Ill. Adm. Code §1286.200 (eff. June 30, 2004). According to the
defendant, the State failed to prove the third requirement when it did not introduce evidence
that the EC-IR machine was tested after May 25, 2006, or evidence that the machine had not
been tested since May 25, 2006. In his argument, the defendant assumes that the EC-IR
instrument was tested before the defendant took his breath test on May 25, 2006. The
defendant argues that because the State failed to present evidence that the EC-IR machine
either was not subsequently tested or was tested and found accurate, the State failed in its
burden of proof beyond a reasonable doubt. We disagree.
The State has an obligation to prove every essential element of the crime beyond a
reasonable doubt. People v. Maggette, 195 Ill. 2d 336, 353 (2001); People v. Hess, 24 Ill.
App. 3d 299, 303 (1974). The elements of the crime with which the defendant was charged
are (1) driving or being in actual physical control of any vehicle and (2) an alcohol
concentration in the person's blood or breath of .08 or more. 625 ILCS 5/11-501(a)(1) (West
2006). The jury instructions given in this case, which lay out the elements of the crime, are
as follows: "[A] person commits the offense of driving with an alcohol concentration of 0.08
or more when he is in actual physical control of a vehicle while the alcohol concentration in
such a person's blood or breath is 0.08 or more." See Illinois Pattern Jury Instructions,
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Criminal, No. 23.20 (4th ed. 2000).
Proving that the breath-test examination was performed according to the Department
of State Police standards is not an element of the offense of driving under the influence but
is instead a foundational requirement for the admission of the breath-test results. People v.
Black, 84 Ill. App. 3d 1050, 1052 (1980) (evidence that the machine was regularly tested for
accuracy is among the elements of the foundation required for the admission of breath-test
results); People v. Hester, 88 Ill. App. 3d 391, 393 (1980) (before breath-test results may be
received into evidence, a proper foundation must be established); People v. Orth, 124 Ill. 2d
326, 340 (1988) (the required foundation for the admissibility of breath-test results includes,
among other things, evidence that the machine was tested regularly for accuracy and was
working properly). The State's failure to lay a proper foundation goes to the admissibility of
the breath-test results, not to the sufficiency of the evidence. People v. DeLuna, 334 Ill. App.
3d 1, 20 (2002). Once the results of the breath test showing the defendant's alcohol content
of .27 was admitted into evidence, there was sufficient evidence before the jury for it to find
him guilty beyond a reasonable doubt, even if the evidence was improperly admitted.
The defendant's argument in the case at bar is similar to that made by the defendant
in DeLuna, 334 Ill. App. 3d at 20. In DeLuna, the defendant argued that the State failed to
prove him guilty beyond a reasonable doubt because the State failed to lay a proper
foundation for the expert opinion of Dr. Kruski that the evidence seized was cocaine. As the
court explained in DeLuna:
"[D]efendant's contention as to proper foundation is an attack going to the
admissibility of the evidence presented in Dr. Kruski's opinion, not to its sufficiency.
Arguably, sufficiency involves absence of proof of a basic element of the crime.
Defendant here is not challenging the lack of proof as to the existence of an element
of the crime, since Dr. Kruski testified to the identity of the controlled substance. The
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challenge is to the failure to lay a proper foundation for the proof of that element.
This goes to a determination of its admissibility, rather than sufficiency of the
evidence presented." DeLuna, 334 Ill. App. 3d at 20.
The same is true in the case at bar. The defendant's argument goes to the admissibility of
the evidence, not the sufficiency.
In DeLuna, the court found that the defendant had waived any objection to the
admission of the evidence because the defendant failed to object during the trial. DeLuna,
334 Ill. App. 3d at 19. That court stated that an objection requirement is especially important
in cases of an improper foundation because errors in laying a foundation are easily cured.
DeLuna, 334 Ill. App. 3d at 21.
In the instant case, on his cross-examination of Officer Boehm, the defendant exposed
what he argues was the State's improper foundation, by introducing into evidence a copy of
the breath-analysis instrument log. The defendant then failed to object when the State moved
to introduce the results of the breath test on redirect examination. This failure to object
waived the issue of an improper foundation on appeal.
The defendant moved for a directed verdict after the close of the State's case. The
motion for a directed verdict does not preserve the issue of an improper foundation because
it was not a timely and specific objection to the foundation requirements. See People v.
Sparks, 335 Ill. App. 3d 249, 254 (2002) ("[a] timely objection in the trial court as to the
foundation of technical evidence is necessary to give the State the opportunity to correct any
deficiency in the proof"); People v. Bynum, 257 Ill. App. 3d 502, 514-15 (1994). The motion
for a directed verdict also deprived the State of the opportunity to correct any foundational
deficiencies because it was made after the close of the State's case. Also, had a timely
objection been made, the foundational problems could have been cured, because Officer
Boehm brought with him to the trial the entire breath-analysis log, which would have
6
contained any information about subsequent accuracy checks.
The exceptions to the waiver rule also do not apply. Exceptions to the waiver rule are
made " 'where the allegation of error would not normally be expected to be included in a [sic]
post[]trial motion' " or where " 'the reviewing court elects to take notice of plain errors
affecting substantial rights pursuant to Supreme Court Rule 615(a).' " DeLuna, 334 Ill. App.
3d at 19-20 (quoting People v. Lopez, 242 Ill. App. 3d 160, 162 (1993)); 134 Ill. 2d R.
615(a). The allegation of error in the case at bar would normally be expected to be made in
a posttrial motion. See DeLuna, 334 Ill. App. 3d at 20 (foundational error was expected to
be raised in a posttrial motion). The defendant also cannot make a case under the second
prong of the waiver rule because foundational issues go to the admissibility of the evidence,
not to the sufficiency of the evidence. DeLuna, 334 Ill. App. 3d at 20. Accordingly, any
error does not affect the defendant's substantial rights and the error is waived.
CONCLUSION
The foundational issues were waived by the defendant, and the State met its burden
of proof on each element of driving under the influence of alcohol. The judgment of the
circuit court of St. Clair County is hereby affirmed.
Affirmed.
GOLDENHERSH, J., concurs.
JUSTICE CHAPM AN, dissenting:
I dissent from the majority's opinion.
I do not conclude that defense counsel waived her client's right to complain that there
was a lack of foundation supporting the breath-alcohol evidence utilized in the defendant's
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conviction. There was no doubt that the defense argued the matter of foundation from the
beginning of the trial. The majority is correct that when the State sought to introduce the
breath-alcohol test result in issue, defense counsel did not object to its introduction.
However, I believe that given the number of other times before, during, and after the trial that
the foundation issue was raised by defense counsel, the foundation issue was preserved. I
also note that the State does not argue that the defendant waived the issue.
Prior to the trial, counsel for the defendant sought discovery of the necessary
foundational documents from the State. Those requests were dated July 10, 2006, and
September 18, 2006. By a pretrial motion in limine, the defendant asked the court to bar the
State's use of the breath-test results for the State's failure to produce them in discovery before
the trial. The prosecutor replied and indicated that he did not believe he needed the logbook,
to which the trial judge pressed him on whether or not he had sufficient foundational
evidence. The prosecutor had no documentation in his file, and he had to leave the
courtroom to contact the police department. The logbook pages utilized at the trial were the
ones that the Lebanon police department faxed to the prosecutor. The trial court indicated
that a ruling would be forthcoming, but the record and the minute entries reflect no such
order. During cross-examination, a Lebanon police officer admitted that he did not know if
the May 25, 2006, certification check had been performed before or after the defendant's test.
The State had the officer on the stand, and in possession of the logbook, and did not seek to
clarify the matter by documenting any certification done after the date of the defendant's test.
The majority's contention that the defense "sandbagged" the State by waiting to raise the
foundational failures until counsel filed a motion for a directed verdict is factually incorrect.
Any further questioning on the part of the defense counsel about prior or subsequent
certification checks would have been contrary to the position of her client. It was up to the
State to verify the existence and timing of these recertification checks, and there is no reason
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that the State could not have done so on direct and/or on redirect. While her motion for a
directed verdict at the close of the State's case did involve this missing element, there should
have been no doubt from the motions filed before the trial, and her questioning during the
trial, what argument defense counsel was making. Furthermore, the missing element is a key
foundational component to the most important piece of evidence used against the defendant
in this case. Her argument by a motion for a directed verdict should not have been a surprise
to the State.
Despite defense counsel's failure to object to the admission of the breath-test
document, from the entirety of the motions, arguments, and cross-examination, I would not
conclude that the defendant waived his right to object to the lack of foundation.
I would also like to comment on this foundational requirement to stress its importance
to the crime with which the defendant was charged.
The use of breath-alcohol-testing instruments is fairly complicated, in that only certain
instruments are authorized by the federal and state governments to be used for the detection
of blood-alcohol content, only highly trained individuals can operate the instruments, and the
instruments require frequent tests to ensure their reliability. See 20 Ill. Adm. Code
§1286.210 (eff. June 30, 2004) (containing the list of approved breath-alcohol
instruments–instruments that have been the subject of rigorous testing); 20 Ill. Adm. Code
§1286.230 (eff. June 30, 2004) (the accuracy or certification checks that must be performed
no more than every 62 days); 20 Ill. Adm. Code §1286.70 (eff. June 30, 2004) (the rule
regarding the maintenance of records relative to the tests performed by defendants, the
accuracy tests, and any service records); 20 Ill. Adm. Code §1286.100 (eff. June 30, 2004)
(the licensure requirements for all breath-alcohol-instrument operators). Additionally, in
order for evidence of the blood concentration of alcohol to be admissible, the testing must
have been performed in keeping with "standards promulgated by the Department of State
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Police" and by a person possessing a permit issued by the Department of State Police for
purposes of testing blood-alcohol content. 625 ILCS 5/11-501.2(a)(1) (West 2004). The
Department of State Police is authorized by statute to "certify the accuracy of breath[-]testing
equipment" and to "prescribe regulations as necessary" relative to training and to ensure the
accuracy of the instruments. 625 ILCS 5/11-501.2(a)(1) (West 2004).
At issue in this case was one portion of the regulation that included the following
requirement:
"No accuracy check has been performed subsequent to the subject test[,] or the
performance of the instrument on the next accuracy check after the subject test was
within the accuracy tolerance described in this Subpart." 20 Ill. Adm. Code
§1286.200(c) (eff. June 30, 2004).
If the regulatory "no test" language is literally construed, as the State urges, that
interpretation produces what I find to be an "absurd result." See People v. Hanna, 207 Ill.
2d 486, 498, 800 N.E.2d 1201, 1207 (2003). When an interpretation of the wording of a
statute utilizing the plain-meaning rule would lead to an "absurd" result, then the plain-
meaning rule need not be followed. Hanna, 207 Ill. 2d at 498, 800 N.E.2d at 1207-08.
The purpose of the certification tests is to ensure that the instrument is properly
functioning, thereby ensuring result accuracy. The language of this regulation mandates that
any subsequent certification check be within the allowable range. This, too, serves to
establish that the instrument continues to function properly. By inference, if the certification
tests performed before and after a defendant's test yield results within the accepted deviation
values (and the department was using an approved instrument and the certification tests were
completed every 62 days or less), then as the regulation states, "[a] rebuttable presumption
exists that an instrument was accurate at the particular time a subject test was performed" (20
Ill. Adm. Code §1286.200 (eff. June 30, 2004)). I would conclude that the "no test" language
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does not allow the State to simply neglect to introduce its evidence relative to the next
certification check.
In this case, the trial did not occur until some months after the 62 days following the
defendant's test. So, there necessarily would have been another accuracy test after the
defendant's test. The final entries of both of the logbook sheets introduced into evidence
relative to the breath-alcohol-testing instrument used by the Lebanon police department
coincidentally ended on May 25, 2006. The next pages of these logbooks were not
introduced, and there was no testimony about a certification check conducted after May 25,
2006.
Furthermore, to accept the State's theory that "no test" means that the departments
were not required to test the instrument for accuracy at any time after the defendant's test,
the evidence at the trial certainly did not prove that no test had occurred. From entries (one
finalized and one crossed out) on the two logbook sheets introduced into evidence, there was
an accuracy check performed on the same date that the defendant's test was performed–May
25, 2006. We do not doubt that this May 25, 2006, test was designed to be the next accuracy
check after the April 12, 2006, accuracy test. The State could have taken the position that
this May 25, 2006, test was performed before the defendant's test (earlier in the
day)–eliminating the need to prove up the April 12, 2006, test. Or the State could have taken
the position that this May 25, 2006, test was performed after the defendant's test, which
would have effectively satisfied the third requirement of the administrative regulation on
accuracy. The State chose to take neither position. In response to a defense motion for a
directed verdict during the trial referencing the State's failure to establish if the May 25,
2006, accuracy check had been performed before or after the defendant's test, the prosecutor
said:
"We did not elicit testimony that the certification happened on the day of this arrest.
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We elicited testimony that it happened 43 days earlier, which is within the time frame
allowable by law."
From this argument I believe that the prosecutor missed the point of the requirement.
Obviously, had the Illinois State Police employee who performed the accuracy check on May
25, 2006–again, Clyde Matthews–listed the time of the test, the handling of this evidence
would likely have been different. From a look at the two logbook sheets in evidence, it
would appear that Clyde Matthews did not ever record the time of his certification
checks–just the date and the results. The April 2006 accuracy check results also contained
no listed time for the checks. The prosecution took the position that by proving up the April
12, 2006, accuracy check, the State's required evidence regarding the reliability of the test
result in question was complete. About this, I contend that the State was wrong.
The more specific manner in which the State charged the defendant with driving under
the influence of alcohol necessitated the admission of breath-alcohol test results. See 625
ILCS 5/11-501(a)(1) (W est 2004). Because the State failed to prove the foundational
element necessary to establish the accuracy of the defendant's May 25, 2006, breath-alcohol
test and because a breath-alcohol test at or above .08 was a required element of the crime
with which the defendant was charged, I believe that the State failed to prove the defendant
guilty of the crime beyond a reasonable doubt.
I also find that the majority's reliance upon People v. DeLuna, 334 Ill. App. 3d 1, 777
N.E.2d 581 (2002), is misplaced because it is factually distinguishable. In DeLuna, because
the expert witness had already testified that the substance at issue was, in fact, cocaine, the
defendant's argument was not that the substance was something other than cocaine but that
the State had not established that the expert's testimony was of the type reasonably relied
upon in the industry and/or that the machines utilized in analyzing the chemical content were
properly functioning. DeLuna, 334 Ill. App. 3d at 19, 777 N.E.2d at 597-98. With breath-
12
alcohol tests, administrative regulations mandate testimony about the accuracy checks
completed on the machine utilized–checks completed both before and after the subject test
and within a certain time frame. Compliance with an administrative regulation was not at
issue in DeLuna. Also, as the court in DeLuna indicated, "sufficiency involves absence of
proof of a basic element of the crime," and that was not at issue in DeLuna because the
expert testified that the substance was, in fact, cocaine. DeLuna, 334 Ill. App. 3d at 20, 777
N.E.2d at 598. In this case, what was at issue was the level of alcohol within the defendant's
system as quantified by a breath-alcohol test–not the mere presence of alcohol. Unlike
cocaine, which is illegal in any quantity, it is not a crime to have a blood-alcohol level less
than .08 as long as it does not impair one's driving abilities. Without proper testimony about
the device's history of accurate reporting, the proof fails. This situation involves the
admissibility of the result–not just the sufficiency of the evidence. For that reason, the
majority's reliance upon DeLuna is inappropriate.
For the reasons stated herein, I respectfully dissent.
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NO. 5-06-0639
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 06-CF-877
)
DEAN RIGSBY, ) Honorable
) John Baricevic,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: June 24, 2008
___________________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable Richard P. Goldenhersh, J.,
Concurs
Honorable Melissa A. Chapman, J.,
Dissents
___________________________________________________________________________________
Attorneys Daniel M. Kirwan, Deputy Defender, Larry R. Wells, Assistant Defender, Office of
for the State Appellate Defender, Fifth Judicial District, 117 North Tenth Street, Suite
Appellant #300, Mt. Vernon, IL 62864
___________________________________________________________________________________
Attorneys Hon. Robert Haida, State's Attorney, St. Clair County, 10 Public Square, Belleville,
for IL 62220; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Sharon
Appellee Shanahan, Contract Attorney, Office of the State's Attorneys Appellate Prosecutor,
730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________