2018 IL App (3d) 160124
Opinion filed October 17, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-16-0124
v. ) Circuit Nos. 15-DT-636
) 15-TR-33589
XAVIER D. CRUMP, )
) Honorable Raymond A. Nash,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.
OPINION
¶1 Defendant, Xavier D. Crump, appeals his conviction for driving with an alcohol
concentration of 0.08 or higher (625 ILCS 5/11-501(a)(1) (West 2014)). He asserts that the trial
court erred in admitting the results of his Breathalyzer test because (1) the State failed to lay the
proper foundation to admit certain exhibits as business records and (2) regardless of whether the
records were properly admitted, they were insufficient to certify the proper functioning of the
Breathalyzer test. We affirm.
¶ 2 FACTS
¶3 In May 2015, the State charged defendant with driving under the influence of alcohol (id.
§ 11-501(a)(2)), driving with an alcohol concentration of 0.08 or more (id. § 11-501(a)(1)), and
improper parking on a highway (id. § 11-1303).
¶4 The State presented the following evidence at defendant’s November 2015 bench trial.
¶5 Illinois State Trooper Brian Frank testified as follows. While on patrol at approximately
7:50 a.m. on May 10, 2015, he observed a vehicle parked along the right shoulder of the I-55
southbound ramp. He approached the vehicle and saw a man, who he identified as defendant,
asleep in the driver’s seat. He could not recall whether the car was running but the keys were in
the ignition. Upon waking, defendant’s eyes appeared “red, glassy and bloodshot” and Frank
smelled “a strong odor of an alcoholic beverage emitting from his breath.” Defendant stated that
he drank two beers and two mixed drinks at a bar the night before.
¶6 Trooper Frank asked defendant to perform standard field sobriety tests, including the
horizontal gaze nystagmus, the “walk and turn” and the “one leg stand.” Defendant exhibited
signs of intoxication during each test. As a result, Frank arrested defendant and transported him
to the Illinois State Police headquarters. After Frank observed defendant for 20 minutes at police
headquarters, defendant submitted to an “Intoxilizer” Breathalyzer test. Frank is certified in
administering the Breathalyzer test. The results of that test indicated defendant had a blood
alcohol content of 0.131. Frank then issued defendant citations for driving under the influence of
alcohol, driving with an alcohol concentration of 0.08 or more, and improper parking on a
highway.
¶7 As proof of defendant’s intoxication, the trial court, over defense counsel’s objections,
admitted a number of the State’s exhibits under the business-record exception to the hearsay rule.
Specifically, State’s exhibit No. 3 included a notarized “verified certification” letter, signed by
2
the “Keeper of Records” of the Alcohol and Substance Testing Section of the Illinois State
Police Academy, indicating that accuracy checks were conducted on the Intox EC/IR-II
Breathalyzer machine at issue on May 1 and June 5, 2015, and its corresponding attachments
(electronic certification). The attachments included printouts of an “Intox EC/IR-II Scheduled
Certification” that indicated a test date of May 1, 2015, and an “Intox EC/IR-11 Certification
check” that indicated a test date of June 5, 2015, both of which contained the following
notations: “System Check: Passed” and “Test Status: Success.” State’s exhibit No. 4 was an
“Intox EC/IR-II Subject Test” dated May 10, 2015, indicating Trooper Frank administered the
test to defendant, that defendant blew a .13 (the third decimal digit is blacked out), and
containing “System Check: Passed” and “Test Status: Success” notations. Trooper Frank
identified exhibit No. 4 as a printout of defendant’s Breathalyzer test created in the regular
course of business. State’s exhibit No. 5 was the breath analysis instrument logbook from the
State Police headquarters showing defendant’s test results from the Breathalyzer machine as
.131. It also contained a June 5, 2015, entry with a “certified accurate” notation by a Trooper D.
Sheldon. Trooper Frank identified exhibit No. 5 as a logbook for the Intox Breathalyzer machine
kept in the regular course of business.
¶8 At the conclusion of the State’s evidence, defense counsel moved for a directed verdict,
again, asserting that the documents related to the Breathalyzer machine lacked proper
foundation. The trial court denied the motion. Following arguments, the court found defendant
guilty of driving with an alcohol concentration of 0.08 or more and improper parking but not
guilty of driving under the influence of alcohol. The court recognized its “somewhat incongruous
conclusions,” especially since the Breathalyzer results supported a finding of guilt on both
charges, but the court opined, “While I certainly see evidence of impairment, I also see
3
considerable evidence of non impairment that would, in regards to driving under the influence
(a)(2) charge, would cause me pause.” In particular, the court noted that defendant exhibited
“reasonable balance and physical acuity” during the field sobriety tests such that the court “could
not draw a great deal of overwhelming weight to any evidence of impairment from the field
sobriety tests.”
¶9 Defense counsel timely filed a motion to reconsider the verdict or, alternatively, for a
new trial. Counsel, again, asserted that the trial court erred in admitting the exhibits relating to
the Breathalyzer machine because the State failed to lay the proper foundation. The court denied
the motion. Thereafter, it sentenced defendant to 24 months’ court supervision, fines, court costs,
and 60 hours of community service.
¶ 10 Defendant appeals.
¶ 11 ANALYSIS
¶ 12 Defendant asserts that the trial court erred in admitting the results of his Breathalyzer test.
Although defendant specifically delineates only one issue on appeal, his argument section
presents two issues. Specifically, he argues—in reverse order—that the results of his
Breathalyzer test should not have been admitted because (1) the State failed to lay the proper
foundation to admit the electronic certification as a business record and (2) regardless of whether
the electronic certification records were properly admitted business records, they were
“insufficient to certify the proper functioning of the breathalyzer machine.”
¶ 13 A. Standard of Review
¶ 14 At the outset, the parties disagree on the appropriate standard of review. Defendant
asserts that the issue of whether the State laid a proper foundation to introduce the results of his
Breathalyzer test is a legal question subject to de novo review. In support, he cites State v.
4
Eagletail, 2014 IL App (1st) 130252, ¶ 19, and People v. Claudio, 371 Ill. App. 3d 1067, 1069
(2007), both of which held that a de novo standard of review applies in determining whether the
State met the foundational requirements for the introduction of Breathalyzer tests results as set
forth in People v. Orth, 124 Ill. 2d 326 (1988). In contrast, the State cites People v. Torruella,
2015 IL App (2d) 141001, ¶ 24, in support of its contention that an abuse of discretion standard
applies. In Torruella, the court found the abuse of discretion standard appropriate for
determining whether the State satisfied the foundational requirements of the business records
exception to the hearsay rule. Id.
¶ 15 Because we are actually presented with two separate issues here, both standards of review
are applicable. First, we will determine whether the trial court abused its discretion in admitting
the electronic certification records proffered by the State. A trial court abuses its discretion only
when its ruling is “ ‘arbitrary, fanciful, or unreasonable’ or ‘no reasonable [person] would take
the view adopted by the trial court.’ ” State v. Eagletail, 2014 IL App (1st) 130252, ¶ 26 (quoting
People v. Donoho, 204 Ill. 2d 159, 182 (2003)). If we find the records were properly admitted,
we will then consider de novo whether they establish that the Breathalyzer machine at issue “was
tested for accuracy and working properly on the date the test was administered to the
[d]efendant” such that the results of defendant’s Breathalyzer test were properly considered.
¶ 16 B. Admissibility of the “Certification Records”
¶ 17 Defendant maintains that the State failed to lay a proper foundation for the admission of
the electronic certification records. The State disagrees, asserting that the records were self-
authenticating business documents under Illinois Rules of Evidence 902 and 803. Notably,
defendant does not argue that the State failed to lay the proper foundation to admit the printout of
5
his test results or the logbook documenting his result. Thus we consider only the propriety of
admitting the electronic certification records, i.e., State’s exhibit No. 3.
¶ 18 Illinois Rule of Evidence 902 (Ill. R. Evid. 902 (eff. Jan. 1, 2011)), provides that certain
evidence is self-authenticating and, as such, extrinsic evidence of its authenticity is not required
where the document constitutes, in relevant part:
“(1) Domestic Public Documents Under Seal. A document bearing
a seal purporting to be that of the United States, or of any State,
district, Commonwealth, territory, or insular possession thereof, or
the Panama Canal Zone, or the Trust Territory of the Pacific
Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or
execution.
***
(11) Certified Records of Regularly Conducted Activity. The
original or a duplicate of a record of regularly conducted activity
that would be admissible under Rule 803(6) if accompanied by a
written certification of its custodian or other qualified person that
the record
(A) was made at or near the time of the occurrence of the matters
set forth by, or from information transmitted by, a person with
knowledge of these matters;
(B) was kept in the course of the regularly conducted activity; and
6
(C) was made by the regularly conducted activity as a regular
practice.” (Emphases in original.) Id.
In turn, Illinois Rule of Evidence 803(6) (Ill. R. Evid. 803(b) (eff. Apr. 26, 2012)), which
governs records of regularly conducted business activities, provides:
“A memorandum, report, record, or data compilation, in any form,
of acts, events, conditions, opinions, or diagnoses, made at or near
the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity
to make the memorandum, report, record or data compilation, all
as shown by the testimony of the custodian or other qualified
witness, or by certification that complies with Rule 902(11), unless
the source of information or the method or circumstances of
preparation indicate lack of trustworthiness, but not including in
criminal cases medical records. The term ‘business’ as used in this
paragraph includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for
profit.” Id.
¶ 19 After reviewing the record, we find that the trial court did not abuse its discretion in
admitting the electronic certification documents. Initially, we reject defendant’s contention that
the records were not admissible because no one “familiar with the business and its mode of
operation testif[ied] at trial as to the manner in which the document was prepared.” Self-
authenticating business records do not require testimony at trial. Rather, self-authenticating
7
business records need only be accompanied by written certification from the record’s custodian
or other “qualified person” attesting to the three foundational requirements for business records
described above. See Ill. R. Evid. 902(11) (eff. Jan. 1, 2011).
¶ 20 As indicated, the “verified certification” letter at issue here contains an official seal of the
Illinois State Police, is signed by the “Keeper of Records” of the Alcohol and Substance Testing
Section of the Illinois State Police Academy, and indicates that the accuracy checks—which are
attached to the letter—were conducted on the Intox EC/IR-II Breathalyzer machine at issue on
May 1 and June 5, 2015. The letter also states that (1) “[t]he accuracy checks were made at or
near the time of occurrence of the matters set forth”; (2) “[t]he accuracy checks were kept in the
course of the regularly conducted activity”; and (3) “[t]he accuracy checks were made by the
regularly conducted activity as a regular practice.” Accordingly, the State satisfied the
foundational requirements necessary for admitting the electronic certification as self-
authenticated business records.
¶ 21 We also reject defendant’s assertion in his reply brief that the records should not have
been admitted because “[t]he method and circumstances of preparation of the ‘verified
certification’ were untrustworthy.” In support of his contention, defendant notes that (1) the May
1, 2015, “Scheduled Certification” “does not chronicle who created the document”; (2) the June
5, 2015, “Certification Check” does not explain who operator “Sheldon” is; (3) the logbook does
not contain an entry related to an accuracy check being conducted on May 1, 2015; and (4) the
“purported result of [his Breathalyzer] test is blacked out at the third digit which again calls into
question all [of] the documents’ trustworthiness.” As indicated above, defendant did not
challenge the admission of the logbook or the result of his Breathalyzer test in his initial brief
and may not do so in his reply brief. See S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (points not
8
argued in initial brief shall not be raised in the reply brief). Moreover, defendant fails to
elaborate on how the absence of certain information on the electronic certification documents
renders them untrustworthy. As such, we find no error in the admission of the electronic
certification documents.
¶ 22 C. Foundation Requirements for the Admission of Breathalyzer Test Results
¶ 23 Defendant also argues that the trial court erred in admitting the results of his Breathalyzer
test because the State “failed to certify that the machine from which [his] test results were
derived was accurate and properly calibrated at the time of [his] test.”
¶ 24 The results of a Breathalyzer test may be admitted if the State can show:
“(1) evidence that the tests were performed according to the
uniform standard adopted by the Illinois Department of Public
Health, (2) evidence that the operator administering the tests was
certified by the Department of Public Health, (3) evidence that the
machine used was a model approved by the Department of Health,
was tested regularly for accuracy, and was working properly, (4)
evidence that the motorist was observed for the requisite 20
minutes prior to the test and, during this period, the motorist did
not smoke, regurgitate, or drink, and (5) evidence that the results
appearing on the ‘printout’ sheet can be identified as the tests
given to the motorist.” Orth, 124 Ill. 2d at 340.
Only the third foundational factor is at issue here, i.e., whether the Breathalyzer machine was
tested for accuracy and working properly on the date it was administered to defendant.
9
Defendant raises no issue regarding whether the Breathalyzer machine was a model approved by
the Department of Health.
¶ 25 To establish the accuracy of the Breathalyzer machine and that it worked properly on the
date of the test, the State must show that “the [accuracy] test was performed in accordance with
section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a) (West [2014])) and the
regulations promulgated by the Illinois Department of State Police.” People v. Clairmont, 2011
IL App (2d) 100924, ¶ 12 (citing Orth, 124 Ill. 2d at 340). “In pertinent part, section 11-501.2(a)
authorizes admission of the chemical analysis of a person’s breath in the prosecution of the
offense of driving with an alcohol concentration of 0.08 or more” so long as the Breathalyzer test
was performed “ ‘according to standards promulgated by the Department of the State Police.’ ”
People v Smith, 2015 IL App (1st) 122306, ¶ 32 (quoting 625 ILCS 5/11-501.2(a) (West 2010)).
Section 1286.200 of the Department’s regulations provides for a rebuttable presumption that a
Breathalyzer machine accurately recorded the subject test “if the following four conditions are
met: (1) the Breathalyzer machine was approved pursuant to section 1286.210 of the regulations
(20 Ill. Adm. Code 1286.210 (2011) (not pertinent here)); (2) an accuracy check was conducted
prior to defendant’s test that was within the ‘accuracy tolerance’ described in section 1286.230
of the regulations; (3) no accuracy check was performed after defendant’s test or an accuracy
check was performed after defendant’s test and it was within the accuracy tolerance; and (4)
defendant’s test was conducted not more than 62 days after the last accuracy check.” Smith, 2015
IL App (1st) 122306, ¶ 33 (citing 20 Ill. Adm. Code 1286.200 (2009)). The Department’s
standards also require that either a breath analysis technician or an “automated system” perform
accuracy tests “at least once every 62 days” and that the results are “recorded in the instrument’s
10
logbook or internal memory, or[, if performed remotely,] in the central repository.” 20 Ill. Adm.
Code 1286.230 (2014).
¶ 26 Defendant relies on Smith, 2015 IL App (1st) 122306, in support of his contention that
the State failed to prove a necessary element for admission of his Breathalyzer test result because
neither the verified certification proffered by the State, nor any other evidence submitted at trial,
showed that “the [Breathalyzer] machine was certified as accurate.”
¶ 27 In Smith, the trial court allowed the State to introduce results of the defendant’s
Breathalyzer test which resulted in his conviction for driving with an alcohol concentration of
0.08 or more. Id. ¶¶ 21, 24. Specifically, the State introduced a notarized letter, signed by the
“Keeper of Records” of the Illinois State Police Alcohol and Substance Testing Section,
indicating “the Breathalyzer machine had been tested for accuracy on March 1, 2010, and April
1, 2010.” The accuracy tests attached to the letter provided numerical data but provided no
interpretation of that data and failed to state whether the Breathalyzer machine passed the
accuracy tests. Id. ¶ 4.
¶ 28 On appeal, the defendant argued that the trial court erred in allowing the result of his
Breathalyzer test into evidence because the State failed to lay an adequate foundation for its
admission. Id. ¶ 29. He maintained “that although the electronic certification admitted into
evidence state[d] that accuracy tests were conducted by the Illinois State Police on defendant’s
Breathalyzer machine on March 1, 2010, and April 1, 2010 (within 62 days prior to and after
defendant’s test), it merely list[ed] the numerical results of the accuracy tests without providing
any interpretation of those results.” Id. ¶ 40. He further noted that “[t]he electronic certification
does not state that the Breathalyzer machine passed the accuracy tests, performed within the
11
accuracy tolerance, and was, in fact, accurate,” nor did anyone testify as to the accuracy of the
Breathalyzer test results. Id.
¶ 29 The appellate court agreed with the defendant, noting that although “[t]he electronic
certification admitted into evidence contains raw data from the accuracy tests *** it provides no
interpretation of that data, without which we are unable to discern whether the Breathalyzer
machine performed within the accuracy tolerance and was certified as accurate for those dates.”
Id. ¶ 43. The court held:
“In the absence of any evidence that defendant’s
Breathalyzer machine was certified as accurate within 62 days
prior to defendant’s test, as required by the applicable regulations,
the State failed to establish a proper foundation for the admission
of the Breathalyzer test result and the trial court erred by admitting
it into evidence.” Id. ¶ 44.
¶ 30 We find this case distinguishable from Smith. Here, the accuracy checks attached to the
verified certification letter contain more than just raw data. In particular, the May 1, 2015,
“Scheduled Certification”—likely an automated system check that would be stored in the central
repository rather than the breath analysis instrument logbook—indicates a “dry gas target” of
.079, and contains the following notations: “System Check: Passed” and “Test Status: Success.”
Likewise, the June 5, 2015, certification performed by “Sheldon” indicates a “dry gas target” of
.080 and also contains “System Check: Passed” and “Test Status: Success” notations. In addition,
Trooper Sheldon certified the Breathalyzer machine as accurate in the logbook on June 5, 2015.
¶ 31 In sum, the State’s exhibits, which were properly admitted into evidence, clearly show
that the Department of State Police regularly tested the Breathalyzer machine for accuracy and
12
that it worked properly on the date defendant submitted to the test. As such, the results of
defendant’s Breathalyzer test were properly admitted.
¶ 32 CONCLUSION
¶ 33 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
¶ 34 Affirmed.
13