People v. Caraballo , 431 Ill. Dec. 583 ( 2019 )

2019 IL App (1st) 171993FIRST DIVISION
March 29, 2019
No. 1-17-1993
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. YW-621-780
)
PEDRO CARABALLO, ) Honorable
) Donald Havis
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justices Griffin and Walker concurred in the judgment and opinion.
OPINION
¶1 Defendant Pedro Caraballo was convicted of one count of driving with an alcohol
concentration of .08 or more 625 ILCS 5/11-501(a)(1) (West 2012)) and one count of driving
under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2012)) on November 10,
2013. His sole contention on appeal is that the State did not lay a proper foundation for
admission of the results of a breathalyzer test because the administrator of the test was not
certified at the time the test was given. Specifically, defendant argues that the trial court erred
when it did not exclude the result of a breathalyzer test administered to defendant because the
officer who administered the test was not licensed at the time he administered it. For the
following reasons, we agree with defendant that the results of the breathalyzer test administered
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to defendant should have been excluded because Officer Compton was not licensed at the time
the test was administered.
¶2 BACKGROUND
¶3 Before trial, defendant filed a motion in limine to exclude the result of a breathalyzer test
administered by Officer James Compton on November 10, 2013. At a hearing on the motion,
defendant argued that one of the requirements for the administration of a breathalyzer test was
that the administrator must be licensed by the State at the time of the test. Defendant argued that
Officer Compton was not licensed on the date in question and therefore the breath ticket could
not be admitted as evidence against him. The State responded that although Officer Compton
was not licensed on the day the test was administered, Officer Compton’s license to administer
the test had expired five days before the test and he was recertified the day after he administered
the test on defendant. The trial court granted defendant’s motion to suppress the breathalyzer.
¶4 The State filed a motion to reconsider arguing that the certification to administer the
breathalyzer was “just a formality” because the real test was whether the officer knew what he
was doing and whether the results were reliable. On August 14, 2015, the court ordered the
defendant to respond and indicated that a hearing on the State’s motion to reconsider was
necessary. The court stated that the hearing would be on the limited issue of whether Officer
Compton was certified at the time of the breathalyzer test, stating that if “he’s not certified then
the results don’t come in.” At some point between August 14, 2015, and February 10, 2016, the
trial court granted the State’s motion to reconsider. Defendant did not include the report of
proceedings from August 14, 2015 to February 10, 2016, in the record on appeal.
¶5 On February 10, 2016, defendant moved the court to reconsider its order granting the
State’s motion to reconsider. Defendant argued that the trial court was correct in the first instance
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when it found that because Officer Compton was not certified when he administered the
breathalyzer test, the breathalyzer result was not admissible evidence. The case was then
continued for a hearing to determine whether, despite his lack of certification, Officer Compton
was knowledgeable and the test was reliable.
¶6 At the March 28, 2016, hearing, Officer Compton testified to his 11 year employment
with the Hickory Hills police department and his specific training for the administration of breath
tests through “a class put on through NEMRT at the Burbank Police Department” in 2006 or
2007. He also took a three-day certification class that required him to take practical and written
exams relating to the operation of a breathalyzer machine. After passing these exams, Officer
Compton was certified to operate breath machines, specifically the Intoximeter EC/IR II used by
the Hickory Hills police department, and he was recertified in 2010. Compton testified that his
certification expired on November 5, 2013. Officer Compton administered the breath test at issue
to defendant on November 10, 2013, and recertified his license the following day, November 11,
2013, and his certification was valid at the time of the hearing.
¶7 In terms of administering the test, in order to operate the machine, Officer Compton was
required to enter a defendant’s information such as his name, the date, the defendant’s birth date,
the defendant’s driver’s license number, as well as the officer’s name and operator ID. After this
information is entered, the instrument will “purge itself.” Then Officer Compton placed a new
mouthpiece on the machine. The mouthpiece came out of a sealed bag and was replaced every
time he performed a test. If the machine was not working properly, an error message would
appear on the screen.
¶8 Compton testified to the required procedures in the administration and operation of the
breathalyzer machine, that he followed these procedures when administering the test to
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defendant and that these procedures were performed to the standards set by the Illinois state
police. Compton stated that when he recertified his license to administer breath tests on
November 11, 2013, he did not learn of any new procedures that would have changed the process
of the test he administered to defendant. Compton estimated that during his 11 years with the
Hickory Hills police department he administered about 75 to 100 breath tests, and that he has
been certified to administer breath tests “either three or four times” in his career with the police
department. He also stated that the breathalyzer machines are checked for accuracy every “sixty-
some days by the Illinois state police.”
¶9 After hearing Officer Compton’s testimony, the trial court allowed the breathalyzer test
and result to be used at trial. The court found:
“That the operator beyond a doubt was knowledgeable as far as his knowledge as
far as the machine, how it operates, things of that nature. And at this juncture right
now, the only thing the State has to prove, according to the Court’s opinion, is
that the machine operated reliable [“sic”]. In this case, the machine gave out a
result in this case. If it did not give out a result, it would give a refusal-not a
refusal, a rejection at this point, according to the officer’s testimony. So based
upon this point, the Court is going to allow the Breathalyzer to be used at trial.
And now we’re at a different standard now. So your motion is granted.”
¶ 10 On the day of trial, April 4, 2016, the State filed a motion in limine asking the court to bar
evidence that Officer Compton’s breathalyzer certification had expired at the time of the arrest.
Defendant opposed the motion on the basis that it would prevent the defense from arguing a
relevant fact. The court granted the State’s motion, stating “the mere fact that the breathalyzer’s
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operator’s certifications lapsed for a period of time doesn’t make it an issue of fact. It’s an issue
of law at this point.”
¶ 11 At trial, Officer Compton testified that he was formally trained to detect and apprehend
drivers impaired by alcohol. On November 10, 2013, he was stopped at a stop sign in his marked
patrol vehicle when he observed a vehicle pass him and “the passenger’s side tires strike a curb,
go over the curb, travel through the grass, just miss a tree and then come back into the lane of
traffic.” As the vehicle came back into the lane of traffic, “the driver’s side tires then crossed the
solid yellow line before coming back into the road.” Officer Compton then initiated a traffic stop
based on his observations. He identified defendant in open court as the driver of the vehicle.
Officer Compton observed that defendant had “glassy, bloodshot eyes” and “highly slurred”
speech. Defendant also had a strong odor of alcohol coming from his mouth.
¶ 12 Defendant told Officer Compton that he had a little to drink. Defendant attempted to hand
Officer Compton a bottle of Jack Daniels but he missed Officer Compton’s hand and the bottle
fell to the ground. The video from Officer Compton’s squad car was played in open court. It
showed defendant complying with Officer Compton’s request to exit the vehicle. As defendant
exited, he tripped and almost fell into moving traffic. Officer Compton had to stop him from
hitting the ground.
¶ 13 Officer Compton asked defendant to complete some field sobriety tests and read the
instructions for these tests from a book of standardized instructions. During the one-legged test,
defendant placed his foot down, fell off balance, and raised his hand up. These actions suggested
impairment. For the walk-and-turn-test, Officer Compton noted that defendant’s balance was
“horrible,” and that he did not seem to understand the directions or Officer Compton’s
demonstration. Officer Compton observed four or five clues of impairment, when only two are
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needed. Based on defendant’s performance of these tests, Officer Compton placed him into
custody for DUI and transported him to lockup.
¶ 14 Officer Compton testified that at the police station, he read defendant his Miranda
warnings, and after the required 20-minute observation period, defendant agreed to submit to a
breath test. After Officer Compton described the test procedures employed, the State offered
defendant’s breathalyzer ticket into evidence. Defendant objected arguing that Officer Compton
was not certified as a breath test operator on the day he administered the test so the result should
not be admitted. The State responded that actual certification was unnecessary where Officer
Compton understood the procedures to operate a breath machine and that the requisite
foundation to enter the breath ticket into evidence had been met. The circuit court overruled
defendant’s objection.
¶ 15 The authenticated breathalyzer ticket showed a test result of .260, which was over the
legal limit of .08. Officer Compton explained that the machine used to analyze defendant’s
breath was the Intoximeter EC/IR II. He stated that he administered tests on this machine about
100 times and did so according to industry standards. The machine is tested monthly for
accuracy and it will not allow a test to be performed if it is not operating properly. Officer
Compton testified to the training he received to operate the machine. The court did not allow
Compton’s most recent certification into evidence because Compton had already testified that he
“is certified.”
¶ 16 The State introduced two business record reports showing that the breathalyzer machine
Officer Compton used on defendant was certified on November 1, 2013, and again on December
1, 2013, and expert testimony that the breathalyzer machine used to test defendant on the night of
November 10, 2013, was accurate in its blood alcohol test result.
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¶ 17 John Wetsetin, a toxicology coordinator for the Illinois state police, testified as an expert
in the field of forensic toxicology and opined that the primary function of the Intoximeter EC/IR
II is to measure ethanol or alcohol or ethyl alcohol in the breath coming out of an individual. It
does not measure acetone or ketones as a result of diabetes.
¶ 18 Defendant’s motion for a directed verdict was denied. The jury found defendant guilty of
driving with an alcohol concentration of .08 or more and guilty of driving under the influence of
alcohol. Defendant was found not guilty of improper lane usage. Defendant was sentenced to 12
months’ conditional discharge. This appeal followed.
¶ 19 ANALYSIS
¶ 20 In his brief filed in this court, defendant does not challenge the sufficiency of the State’s
evidence against him. His sole argument on appeal is that the State did not lay a proper
foundation for admission of the results of the breathalyzer test because the administrator of the
test was not licensed at the time the test was given and therefore the court’s ruling on the State’s
motion in limine was erroneous. We agree and find the court’s ruling on the State’s motion in
limine was in error.
¶ 21 Generally, the admission of evidence falls within the discretion of the trial court. People
v. Zwart, 151 Ill. 2d 37, 44 (1992). A trial court’s decision to grant a motion in limine will not be
reversed on appeal absent an abuse of discretion. However, where the issue on appeal is whether
the evidence was admitted on an erroneous legal basis, we review the question of admissibility
de novo. People v. Larsen, 323 Ill. App. 3d 1022, 1026 (2001). We also review de novo the
construction of statutes (People v. Elliot, 2014 IL 115308, ¶ 11), and the Illinois Administrative
Code (People v. Montalvo, 2016 IL App (2d) 140905, ¶ 18). When construing a statute or
administrative code provision, our “primary objective is to ascertain and give effect to the
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legislature’s intent, keeping in mind that the best and most reliable indicator of that intent is the
statutory language itself, given its plain and ordinary meaning.” Elliott, 2014 IL 115308, ¶ 11.
“In determining the plain meaning of the statute, we consider both the subject the statute
addresses and the legislative purpose in enacting it.” Id.¶ 22 The admissibility of breathalyzer test results is governed by standards promulgated by the
State Police as dictated by statute. Section 11-501.2(a) of the Illinois Vehicle Code (Code) states
in relevant part:
(a) Upon the trial of any civil or criminal action or proceeding arising out of an
arrest for an offense as defined in Section 11-501 or a similar local ordinance or
proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol,
other drug or drugs, or intoxicating compound or compounds, or any combination
thereof 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.
Where such test is made the following provisions shall apply:
1. Chemical analyses of the person’s blood, urine, breath or other bodily
substance to be considered valid under the provisions of this Section shall
have been performed according to standards promulgated by the
Department of State Police by a licensed physician, registered nurse,
trained phlebotomist, certified paramedic, or other individual possessing a
valid permit issued by that Department for this purpose. The Director of
State Police is authorized to approve satisfactory techniques or methods,
to ascertain the qualifications and competence of individuals to conduct
such analyses, to issue permits which shall be subject to termination or
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revocation at the discretion of that Department and to certify the accuracy
of breath testing equipment. The Department of State Police shall
prescribe regulations as necessary to implement this Section.” 625 ILCS
5/11-501.2 (West 2013)).
¶ 23 Section 1286.00 of Title 20 of the Illinois Administrative Code states:
“The Director or his/her designee is authorized to license persons to be BAOs
[(Breath Alcohol Operators)] subject to the requirements of this Section. BAOs
are licensed to perform all appropriate BAO functions described in this Part. Only
licensed BAOs may operate evidential breath testing instruments.
a) To be eligible to be a BAO, the individual must be employed by an
agency or an accredited law enforcement training academy. BAO
candidates, including those who have previously been licensed as a BAO
in another state, must successfully attend the course and pass the written
and proficiency examination or successfully complete a computer-based
training (CBT) course.
b) Under the direction and control of a BAI [(Breath Alcohol Instructor)],
BAO candidates must:
1) Complete a training curriculum approved by the Department
that includes a minimum of 16 hours of instruction, which includes
the following:
A) Presentation and discussion of the psychological,
physiological, and pharmacological effects of alcohol in the
human body;
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B) Demonstration and discussion of instruments and the
analytical processes used to measure BrAC [(Breath
Alcohol Concentration)];
C) Practical application and demonstration in the use of an
evidentiary instrument; and
D) Discussion of current DUI issues, the administrative
rules, and case law.
2) Pass the following:
A) The standardized written examination for Breath
Analysis Operator provided by the Department with a
minimum score of 70 percent.
B) A proficiency examination in which the candidate
operates approved evidentiary instruments.
c) A license shall be valid for a period of three years after the printed date
of issuance. If the license is not renewed as provided for in Section
1286.110, it shall expire three years after the printed date of issuance.” 20
Ill. Adm. Code § 1286.100 (eff. June 4, 2009).
¶ 24 When a motorist files a motion in limine to prevent the introduction of breath test results,
the State must establish a sufficient foundation for admission into evidence. People v. Ebert, 401
Ill. App. 3d 958, 960 (2010). The requirements for laying the proper foundation of breath test
results were outlined by our supreme court in People v. Orth, 124 Ill. 2d 326, 340 (1988). To lay
a proper foundation, the State must establish that the test was performed in accordance with both
section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11–501.2(a) (West 2010)) and the
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regulations promulgated by the Illinois Department of State Police. Id. The State must lay a
foundation establishing five factors: (1) evidence that the test was performed in accordance with
the uniform standard adopted by the Illinois Department of State Police; (2) evidence that the
operator conducting the test was certified by the Department of State Police; (3) evidence that
the breath test machine used was a model approved by the Department of State Police, was
working properly, and was tested regularly for accuracy; (4) evidence that defendant was
observed for 20 minutes prior to the test, and during that time, he did not smoke, drink or
regurgitate; and (5) evidence that the results on the “printout” sheet are properly identified as
defendant’s test results. Id. Failure to comply with section 11-501.2(a) and the regulations
renders the results of the test unreliable and, thus, inadmissible. People v. Emrich, 113 Ill. 2d
343, 350 (1986).
¶ 25 It is undisputed that Officer Compton was not licensed to conduct the breath test on
November 10, 2013. 20 Ill. Adm. Code §1286.100 (eff. June 4, 2009). Because the administrator
was not licensed at the time the test was administered, the breath test was not conducted in
conformity with the regulations promulgated by the Department of State Police. Id. (“[O]nly
licensed BAOs may operate evidential breath testing instruments.” Section 1286.00 of Title 20 of
the Illinois Administrative Code.)
¶ 26 The State argues that although Officer Compton was not licensed when he administered
the breath test, his license had only lapsed for five days, and there is no showing that the testing
process was in any other way improper and relies on People v. Keith, 148 Ill. 2d 32 (1992), to
support its argument. In Keith, the defendant moved in limine to suppress breath alcohol test
results in his prosecution for reckless homicide. The test administrator’s certification had expired
at the time he administered the breath test and he had since died. It was stipulated that the
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deceased officer’s supervisor reviewed the test results and that the deceased officer had his
administrator’s license renewed within two weeks after the subject test. The trial court
suppressed the breath test results because the administrator was deceased and because he was not
certified at the time of administration of the test, and we affirmed.
¶ 27 Before our supreme court, the State argued that the trial and appellate courts erred in
barring the breath test results into evidence on the reckless homicide charge. The State argued
that in a prosecution for reckless homicide, “section 11-501.2 of the Illinois Vehicle Code
(Ill.Rev.Stat.1987, ch. 95½, par. 11-501.2), which incorporates the Department’s standards
relating to breathalyzer instruments, does not apply as in a DUI prosecution.” Rather, the State
argued that admissibility of breath-alcohol tests in a prosecution for reckless homicide was
governed by the usual standards of evidentiary admissibility. Id. at 40.
¶ 28 The Keith court found that “section 11-501.2 standards apply only to actions or
proceedings arising out of arrest for an offense as defined in section 11-501. Reckless homicide
is not such an offense.” Id. at 41. A prosecution for reckless homicide does not arise out of an
offense defined in section 11-501, and “therefore Orth and the Department’s standards are not
applicable here.” Id. at 42. “We thus hold that the usual standards governing the admission of
evidence apply to breath-alcohol test results in prosecutions for reckless homicide.” Id. In
addressing the defendant’s contention that the only standard for admitting breath tests were the
Department’s standards, the Keith court explained that prior to the adoption of the Department’s
standards, breath-alcohol tests were admitted under the usual standards of admitting evidence. Id.¶ 29 The Keith court discussed People v. Krueger, 99 Ill. App. 2d 431, 440-41 (1966), in
which a breath test was admitted in evidence where the officer who performed the test testified
that he had taken a training course, had a certificate as a certified breathalyzer officer, explained
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the operation of the machine, stated the results of the defendant’s test, and stated that the
machine was in working order. On appeal, the trial court’s decision to admit the breath test into
evidence was affirmed, as the trial was satisfied that the machine was properly calibrated and
maintained and that the officer had the proper knowledge to operate the machine and the officer
properly performed and observed the test. Id. at 441.
¶ 30 The Keith court then affirmed the holding of the trial and appellate courts, finding that
under the usual standards governing the admissibility of evidence, the results of the breath test
were inadmissible because there was no evidence that the test was reliable. Keith, 148 Ill. 2d at
44-45.
¶ 31 The State urges this court to find that Keith stands for the proposition that where a proper
foundation for a breath test cannot be laid under the requirements set forth in Orth and the
Department’s standards, then the breath-test can be alternatively admissible under the usual
standards governing the admissibility of evidence. We decline to do so. Keith is very clear that
the Orth requirements and the Department’s standards are the foundational standards applicable
to the admission of breath test results in prosecutions for those offenses enumerated in section
11-501 (625 ILCS 5/11-501 (West 2014)).
¶ 32 As stated, defendant was charged with offenses listed in section 11-501. The Keith court
only considered the admissibility of the breath-test under ordinary admissibility standards
because the Orth requirements and the Department standards did not apply in reckless homicide
prosecutions. The Keith court’s rejection of Keith’s argument that the Department’s standards
were the only applicable standards for admitting breath tests, and its subsequent discussion of the
admissibility of breath-test results prior to the Department’s adoption of its standards in 1970,
does not in any way demonstrate the court’s intention to allow an alternative means of admitting
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breath-tests in the prosecution of offenses described in section 11-501. Rather, the Keith court’s
discussion of this subject explained that in the absence of a specific, identified admissibility
standard for a breath-test in a prosecution for an offense not identified in section 11-501, a
general analysis of the procedures used, the knowledge of the person performing the test and the
reliability of the test were factors to be considered in determining the test’s admissibility. Id. See
also People v. Hamlton, 118 Ill. 2d 153 (1987); People v. Emrich, 113 Ill. 2d 343 (1986).
¶ 33 We also find the State’s reliance on People v. Ebert, 401 Ill. App. 3d 958 (2010) and
People v. Bishop, 354 Ill. App. 3d 549 (2004), to be misplaced. Ebert involved a defendant’s
challenge to the admissibility of a breath test where the administrator failed to comply with the
regulations requiring him to continuously observe the defendant for at least 20 minutes before
administering a breath test because the officer did not accompany the defendant to the bathroom
during that time period. The Ebert court remarked:
“The act of observing a motorist for 20 minutes obviously has no direct effect on
the result of a breath test administered at the end of that period. The purpose of
the observation requirement is to document that the motorist does nothing that
might impair the accuracy of the breath test. Although [the officer] might not have
been watching defendant while defendant was using the bathroom, defendant’s
own testimony establishes that he did nothing to impair the accuracy of the test-he
did not vomit, belch, regurgitate, or place a foreign substance in his mouth. Thus,
the breath test result was no less reliable than it would have been if [the officer]
had observed defendant not doing those things. Given defendant’s testimony,
rigid enforcement of the observation requirement would serve no purpose and
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would frustrate the truth-seeking function by excluding reliable evidence.” Id. at
965.
The Ebert court dismissed the defendant’s argument, finding that any failure to strictly comply
with the observation requirement was de minimis. Id.
¶ 34 In Bishop, 354 Ill. App. 3d at 551, the defendant was convicted of DUI following an
automobile accident. On appeal, he argued that the State failed to collect a sample of his urine in
compliance with section 1286.330(d) of title 20 of the Administrative Code, which required that
the “ ‘urine sample shall be collected from the subject’s first emptying of the bladder in a clean,
dry container.’ ” Id. at 555 (quoting 20 Ill. Adm. Code 1286.330(d) (2002)). According to the
defendant, the hospital drew the first urine sample and the second sample, drawn by police, was
taken hours later. Therefore, the second urine sample did not strictly conform with section
1286.330(d). Id.
¶ 35 This court rejected the defendant’s argument. We found that that substantial compliance
with section 1286.330(d) of title 20 of the Administrative Code was sufficient and that
substantial compliance had been satisfied. Id. at 556. We noted that it was the hospital’s
procedure that prevented the State from taking a sample from the first emptying of the bladder.
Id. We further noted that, “if we were to agree that any deviation whatsoever from the
regulations rendered the results of a sample inadmissible, ‘we would be ignoring the fact that
strict compliance is not always realistically or humanly possible.’ ” Id. (quoting State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 34).
¶ 36 Both Ebert and Bishop involve challenges to tests that deviated slightly from the
standards prescribed for administration of the test. These de minimis deviations did not affect the
validity or reliability of the results. Substantial compliance was sufficient in those cases where a
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defendant was not continuously observed for the required 20-minute period because the
defendant testified that he did nothing that, if he was observed, would have affected the test and
where the State collected a second urine sample because the first sample was taken at the
hospital following defendant’s automobile accident. In Ebert and Bishop there was no challenge
to the admissibility of the tests on the basis that the officers administering these tests were not
licensed by the State. That is not the case here.
¶ 37 Unlike Ebert and Bishop, in this case we cannot find there was substantial compliance
where the officer was not licensed at the time he administered the breath test: there simply was
no compliance, as required by the statute and the Department’s standards. Officer Compton’s
testimony regarding his training and the steps he took in performing the breath test was not
sufficient to overcome the statutory requirement that Officer Compton be licensed to perform the
test at the time the test was administered. Because Officer Compton was not a licensed breath
analysis operator at the time he administered the defendant’s test, the State failed to lay the
required foundation for the admission of the breath test results in a section 501(a)(1) prosecution
and it was reversible error to admit the results into evidence.
¶ 38 The plain language contained in the Department standards and the finding in Orth
specifically requires that, to be admissible in evidence, the breath tests shall be “performed” by a
licensed administrator according to the standards. The test was not performed according to the
required standards in this case, and the failure to strictly comply was not de minimis.
Accordingly, defendant’s motion in limine should have been granted and the breath test results
should not have been admitted. Because the results of the breath test lacked a proper foundation
and should not have been admitted as substantive evidence, we reverse defendant’s conviction
under section 11-501(a)(1). To prove defendant guilty beyond a reasonable doubt, the State must
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prove defendant (1) was in “actual physical control” of the vehicle and (2) the concentration of
alcohol in his blood or breath was more than .08 based upon the definition set forth in section 11-
501.2 of the Code. 625 ILCS 5/11-501(a)(1) (West 2012). Because the State cannot prove a
foundational element necessary for the admission of the breath test results, that the test was
administered by a licensed operator, the State cannot prove defendant’s blood or breath alcohol
concentration while he was driving. The foundational defect we have found cannot be cured on
retrial. We therefore reverse defendant’s conviction for driving with an alcohol concentration of
.08 or more (625 ILCS 5/11-501(a)(1) (West 2012)).
¶ 39 At oral argument, defendant requested that we remand for a new trial the driving under
the influence charge (625 ILCS 5/11-501(a)(2) (West 2012)) because the admission of the breath
test result infected and prejudiced defendant’s trial on this charge. As we previously noted,
defendant did not challenge his conviction for DUI in his notice of appeal, or make any argument
in his appellate brief that the State failed to prove him guilty of DUI beyond a reasonable doubt.
Defendant has therefore forfeited this argument. People v. Enoch, 122 Ill. 2d 176, 186 (1988).
¶ 40 Forfeiture aside, we find that there was overwhelming evidence from which the jury
could conclude beyond a reasonable doubt that defendant was under the influence of alcohol
while in physical control of the vehicle even without the admission of the breath test evidence.
Infra. ¶¶ 11-13. We find no possibility that admission of the breath test results prejudicially
influenced the jury’s determination on this charge. Defendant’s conviction for DUI (625 ILCS
5/11-501(a)(2) (West 2012)) is therefore affirmed.
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we affirm in part and reverse in part.
¶ 43 Affirmed in part; reversed in part.
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