*1 (Douglas Lumber), here applied Code of Procedure bemay Civil allowed. was properly we are satisfied that amendment Con Reilly Louis Flexicore and argue that St. plaintiffs comply they struction failed to their liens because perfect Lien Act Rev. Stat. (Ill. in section 24 of the Mechanics’ requirements of the claims served with notice 24) that the owners be par. The plaintiffs the subcontractor. days completion within 90 work motion, however, and we post-trial did not raise this until their objection concludethat has been waived. trial court in costs that the
Finally, plaintiffs object $90.50 them; the assessment of assessed do not against $376.55 to com objected The amount charges. for various fees and deposition no claims, recording pendens lien a lis recording prises money spent re notices, and a court tice, transcription by of 90-day sheriff’s service costs was within the trial court's to tax these items as porter. Whether discretion, that decision. see no reason to disturb we
Affirmed. WEBBER, J.,
MILLS, P.J., and concur. ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATE OF JR., Defendant-Appellant. PERCY FRAZIER Fourth District No. 4—83—0204 19, 1984. April
Opinion filed *2 GREEN, J., concurring. specially Rantoul, Associates, Cornyn, & Korkowski &
Michael R. of Allen appellant. (Robert Difanis, J. Biderman and Attorney, of Urbana
Thomas J. State’s Commission, White, Attorneys Appellate Service Rebecca L. both of State’s counsel), the People. MILLER delivered the court: opinion JUSTICE while un- The defendant was tried convicted jury, alcohol, imprisonment. der influence of and sentenced to days’ An an hour after his arrest re- defendant’s breath analysis .28, and information was vealed a blood-alcohol concentration of into appeal argues introduced evidence. On test should not have been at trial and that results of breath used received instructions on of intoxica- misleading subject tion. not proved guilty beyond The defendant also that he was *3 conclude no reversible occurred and reasonable doubt. We that affirm offense, that the defendant of the and we proved guilty was the the circuit court. judgment 15, 1982, the
In after 6 on October Champaign shortly p.m. defendant, home, car feet was involved in a collision several the left of a from his The defendant’s car hit rear side car driveway. direction; that had moved traveling was both drivers opposite cars, parked apparently toward the center street avoid and the The called. resulted from those were police accident maneuvers. trial, At officers testified that found defendant seated two The steering car, ahead. staring straight behind the wheel of his alcohol, his clear, smelled of defendant’s was but his breath speech was he The ar- eyes standing. were had trouble defendant glassy, station, initially he Champaign and taken where police rested mind and test later his changed refused to submit to a breath but po- took The two tests dexterity the test. defendant took officers station, lice he Both performing police had trouble both. at the time of his arrest. believed that the defendant was intoxicated the acci- that in the hours preceding The defendant testified four total of or five mixed dent he went to two taverns and had a four un- denied that he was The defendant whiskey drinks of water. The at the first tavern on his feet after accident. bartender steady account of his two or three drinks at that confirmed the defendant’s said that he had not noticed unusual anything establishment and neighbor about the defendant’s condition. A who heard the collision and watched the escort from his car testified police that the any difficulty walking. defendant have
I The first he refused to argues initially defendant because test, one not have and therefore take breath should been the trial court should have his motion to the test granted suppress motion, arguing parties agreed report results. In officer, constitute the evi arresting Hockings, made would at the station the According report, upon arriving police dence. law, informed of his under the rights implied defendant was consent (Ill. 1981, the Illinois Code Rev. ch. section 11—501.1 of Vehicle Stat. 951/2, 501.1). When the defendant announced his refusal to par. 11— him test, Hockings take the advised to consider the consequences refusal, The defendant in his so told persisted Hockings decision. him to think it for 10 minutes. Soon the defendant his changed about test, to take con agreed mind and which showed a blood-alcohol of .28. The that his initial decision to centration defendant binding police refuse to take the test was and irrevocable and test coer conduct in his eventual decision to take the resulting cive. 501.1(c) provision first relies on the section The defendant 11— test, and in given” to take a “none shall be
that if a driver refuses (Ill. the refusal court is to notified of county the clerk of the stead 95V2, The 1981, 501.1(c)). interprets ch. defendant par. Rev. Stat. 11— testing after a refusal. barring this as all legislature’s “none given,” expresses shall be adjuration, tests, though they blood and breath prohibit involuntary decision under Schmerber v. constitutionally permissible would be California (See 1826. 16 L. Ed. 2d 86 S. Ct. U.S. earlier ver (discussing Todd 59 Ill. 2d 951/2, Stat. ch. (Ill. sions of the consent statute Rev. implied 95V2, 144)).) legislature 501; par. Ill. Rev. Stat. par. 11— *4 per and has chosen instead to tests distasteful involuntary has found consent, their tests, implied to mit to refuse to take withdraw drivers (See from that decision. flow consequences may but bear 553, 559, 74 L. Ed. 2d (1983), 459 U.S. Dakota v. Neville South
567
however,
declined
Dakota,
has
916,
748, 756,
(“South
Ct.
103 S.
test
a blood-alcohol
officers to administer
police
to authorize its
confrontations, the
Rather,
violent
to avoid
will.
against
suspect’s
test,
and indeed
to refuse
a
permits
suspect
South Dakota statute
refuse.
his
to
right
suspect
to inform the
officers
requires police
however”).)
a price,
not without
This
is
permission
[Citation.]
a
a test to
administering
from
police
prevent
statute does
to sub-
decided
voluntarily
has
his mind and
changed
driver who has
testing.
involuntary
test;
prevents only
mit to a
the provision
App.
23 Ill.
(1974),
Shorkey
relies on
v.
People
The defendant also
in that
applicable
statute
662,
46. The
consent
implied
3d
321 N.E.2d
to the test within
“refusal to submit
case
that a driver’s
provided
statutory
his
[i.e.,
notice
given the written
being
minutes after
Rev. Stat.
(Ill.
the test.”
a refusal to take
rights] shall constitute
to
first refused
There, a driver at
1973,
95V2,
501.1(a)(9).)
par. 11—
his mind
changed
period
to a test
within
90-minute
submit
but
one.
driver
it; the
refused to administer
police
and asked to take
his ear
by
and was not
timely
precluded
that his consent was
argued
held
to
the test. On
the court
appeal
lier decision to refuse
take
refusal
binding
is a
analysis
“a refusal to
to a chemical breath
submit
Shorkey
consent”
v.
subsequent
(People
which cannot
nullified
aby
result
46,
the same
48);
Ill.
3d
(1974), 23
App.
7, 436
107 Ill.
3d
App.
was reached in
v. Wierman
his
reasoning supports
that this
N.E.2d 1081. The defendant
test.
an initial refusal to take a
that a drive
not revoke
theory
from administer
Shorkey
prohibit
police
Wierman and
do not
who has reconsidered his
a test as a matter of
to a driver
grace
the 90-
two cases stemmed from
initial refusal. The
in those
problem
consent law for a driver
implied
minute
then allowed
period
by
was
test,
common to those cases
to a
and the question
submit
by a refusal made before
irrevocably
whether a driver could be bound
here
rewritten
The statute
up.
applicable
the 90 minutes were
Frye
(see People
January
Act
effective
Public
82—
(discussing
legisla
We see no reason done finally his refusal. What is take a if he has reconsidered test complete fails to as a driver who all that counts of course: just is *5 (People test will be deemed to have refused to take it v. Schuberth 115 Ill. App. 459), the initial the refusal of defendant here could have been no effect once he the completed test.
The argues defendant also that he was coerced into tak- mentally the test. That would be contrary legislature’s decision to drivers to permit refuse to take tests. The defendant’s eventual deci- sion to submit to the test was made and freely voluntarily. Officer Blockings advised the merely defendant to think what carefully about he wanted to do and gave defendant some time to reflect. This does not even constitute and falls far of nagging short coercion.
Therefore, we conclude that the trial court did not err in denying the defendant’s motion suppress results. breathalyzer
II argues defendant the result of the test breathalyzer should not have been admitted into evidence. The defendant bases objection first, this on two separate grounds: that the State failed to the text produce of certain standards on and vetting brea- certifying machines, thalyzer second, and that the State failed to show that results of the breath test were accurate evidence of the defendant’s blood-alcoholconcentration at the time he was driving.
Before introducing testimony of Kent certified Randolph, the technician breathalyzer regularly who tests the of the Cham- accuracy machine, paign police department’s State asked the trial judge take judicial notice of a issued pamphlet by Illinois Department called, Public Health and “Standards and Procedures for for Testing Breath, Blood, Alcohol and All Drugs Other and by Analysis.” Urine date of the pamphlet January was 1982. Rule 4.04 of the “Standards and Procedures” said: 4.01, 4.02,
“Instruments which meet the provisions of Rules and 4.03 will be by Department tested accordance with the Standards for Devices to Measure Breath Alcohol which were promulgated the National Traffic Ad- Highway Safety ministration, U.S. Department Transportation.” The defendant asked the to produce Highway State the National standards; the State asserted that to the selection they pertained only of machines and not to their periodic inspections and tests for accu- The State out racy. pointed that rule 10 of the “Standards and Proce- dures” regu- contains information on necessary procedures machines. The larly testing certifying defendant National rules mentioned in rule must to some- Highway pertain 4.04 machines, for the selection other than
thing
procedures
approved
4.02 as an
listed in rule
used here is
breathalyzer
type
of stand-
on the basis
selected
model,
had been
implies
which
The trial judge
in rule 4.04.
referred to
than those later
ards other
re-
Procedures” and
the “Standards and
notice of
judicial
took
standards.
Highway
the National
the State to
quire
produce
not intro
was
pamphlet
Procedures”
The “Standards and
our
so
appeal,
the record on
is not
part
into evidence and
duced
the pamphlet’s
handicapped by
necessarily
of this
is
review
among
colloquy
informative
transcript
Based on the
absence.
on
judge
the trial
counsel,
Attorney,
the assistant State’s
defense
periodic
on the
standards
conclude that
relevant
we
question,
in rule
which
of machines were found
testing
certifying
*6
High
the lack of the National
counsel, and that
the court and
before
in his cross-examination
limit defense counsel
standards did not
way
testi
and Randolph’s
and Procedures”
The “Standards
Randolph.
brea
foundation for the admission
a sufficient
mony provided
95V2,
501.2(a)(1).
par.
Stat.
results. Ill. Rev.
thalyzer
11—
any con-
that the State failed to show
argues
The
defendant
the level
results and
breathalyzer
relationship
nection or
between
The
driving.
at the time he was
of his blood-alcohol concentration
he was
an hour after
that the test was
about
defendant notes
vary-
that
is absorbed into
blood
taken from his car and
alcohol
required
was
expert testimony
The
that
ing
argues
rates.
defendant
results.
of the test
significance
to
to a
explain
People
similar
in
argument
recently rejected
This court
Here, the defend
Ill here to that was used next the instruction The defendant attacks The were told: jurors the influence of alcohol.” define “under a result of alcohol when as the influence “A is under person physical his mental and/or amount of alcohol drinking any think and his to ability as to reduce impaired faculties are so care.” ordinary act with (2d Criminal, 23.05 No. (IPI), is Illinois Pattern Instruction Jury
This “intoxicating liquor.” 1981), ed. with “alcohol” substituted spe- referred should have that the definition The defendant because to a motor vehicle operate and the driving ability to cifically offense, prohibited. that is activity of the is the basis needed reference specific defendant also believes he was driv- at the time attention on his condition to focus the jury’s time. other, irrelevant rather than at some relies on v. Sch argument of this support In to IPI 321; Note the Committee 362 Ill. 200 N.E. neider That was a conviction cites Schneider. Criminal No. 23.05 also accident, and one of automobile out of an manslaughter arising The su intoxicated. the defendant was issues was whether disputed the trial was committed when court held reversible preme “intoxicated.” defining an instruction give refused to judge term, the court said: Discussing meaning think it un but we might quoted, other definitions “Many wording, in all differ They the discussion. necessary prolong in other them in some or way that each of but it will be found the faculties as an impairment of such cludes the central idea impair the vehicle and manage to diminish the ability (People of the driver.” part on the of care and caution faculties 321, 324.) 200 N.E. v. Schneider this containing language. an instruction The defendant here offered from case did not depart used The instruction that was are iden The two standards the “central idea” endorsed Schneider. to act with care. ability impairment tical: both of an speak “in for the definition of driving, instruction did not need to mention in. To engaged according activity does not vary toxication” im of alcohol consumption would imply hold otherwise his ability it leaves intact act while ability to think and pair person’s *7 “acting,” concepts and drive, “Thinking” reject. a notion we the tasks asso include all instruction, enough to are broad used driving. ciated with that the again reminded
Furthermore, need to be while he was condition on the defendant’s here was based offense instructions, such as other time. Other and not at some driving issues, referred to summarizing the offense and defining ones re- the defendant’s example, relevant For activity. as the driving in- in the issues the second proposition the trial court modified quest “That 23.06, to say, from IPI Criminal No. struction, taken the influence the vehicle was under the time he drove defendant at then was under alcohol,” than “That simply, rather of aleo- the influence “under The definition of influence of alcohol.” refinement; hoi” did not similar require of that in- only purpose struction was to define the phrase, any mention of driving would have been irrelevant and possibly misleading. trial court did not err in the instruction. using
IV The defendant also jury received an in- improper struction on the presumption by intoxication that arises statute when a person’s blood-alcohol concentration or exceeds .10. equals The instruction said:
“If find a you beyond reasonable doubt that the amount of al- cohol in the defendant’s blood as shown a chemical analysis of his breath was percent alcohol, .10 or more by weight of you shall presume that defendant was under the influence of al- cohol;
However, presumption this is not on binding you you take into consideration other evidence in any determining whether or defendant was under the influence of alco- hol.”
This 23.06, instruction is IPI Criminal No. with the phrase, “beyond doubt,” reasonable added and the “under the phrase, influence of al cohol,” used in place “under the influence of intoxicating liquor.” The source of IPI Criminal No. 23.06 is section 501.2(b) of the Il 11— linois Vehicle Code (Ill. 95V2, Rev. Stat. ch. par. 501.2(b)), 11— which sets forth several the one presumptions, including here, at issue based on different blood-alcohol concentrations.
The defendant argues first that the instruction should have told jurors that his blood-alcohol concentration had to be .10 or more while he was driving, other, as to some opposed irrelevant time. In People v. Malik 113 Ill. App.
court criticized a similar instruction for not specifically referring to driving. Malik said:
“The tendered instruction also is of questionable accuracy that it does not require the find that the concentration of .10 or more alcohol occurred at the time the defendant was driving. Section 501.2(b) states that clearly the presump 11— '*** (1) tion is to be offered a trial of a criminal action aris out of acts alleged have been committed by any person *** vehicle,’ while (2) concerns the concentration alcohol ‘at the alleged,’ (3) time arises if the concentration time,’ of .10 or more existed ‘at Ill. added.) (Emphasis 95V;, Rev. Stat. Ill. par. ll-501.2(b).” (113 App. 3d *8 572 931,
206, 211, 934-35.) 446 N.E.2d fo- properly the attention keep jury’s A to would reference the rather than driving, the defendant was cused on the time that the defini- discussing as we noted that he took the test. But time alcohol,” instructions made clear influence of other tion of “under the en- while the defendant was present intoxication had to be that the any have cured those instructions would driving, gaged regard. in this this have jury may interpreted
The defendant of intoxica unconstitutional presumption instruction as an expressing instruc trial the defendant offered In raising objection tion. infer, to as to jury opposed pre that have permitted tions would at the outset the sume, from the test results. We note his intoxication inference, occasionally that must be used here. An vocabulary correct re but does not presumption,” permits referred as a “permissive existence of another by that one fact is proved to find quire jury at jury’s may In certain cases inferences be commended fact. Court v. Allen 442 U.S. (County (1979), through tention instructions. Housby 777, 2213; 140, L. Ed. 2d 99 S. Ct. 60 as a referred to 415, 151.) occasionally A presumption, 2d upon to find one fact jury requires “mandatory presumption,” fact, pre unless the opponent of the existence of another proof an it. The distinction between introduces evidence to rebut sumption opponent when the apparent presumption inference and a becomes or accept of fact evidence: the finder rebutting fails to present it take the chooses, presumption. must the inference as but reject would a directed action, require an unrebutted presumption In a civil case, however, a verdict In a criminal point. on that particular verdict directed, jury’s interfere with would guilt may 564, Supply v. Martin Linen Co. (1977), 430 U.S. (United States role. 642, implicated 97 Another concern 1349.) Ed. 2d S. Ct. 51 L. prove of the State duty in criminal cases is presumptions use of (In re Win a reasonable doubt beyond of an offense element every 368, 1068). 358, L. 2d 90 S. Ct. skip (1970), 397 U.S. 25 Ed. in which begin ways must Resolution of this instruction, possi- for those interpreted could have reasonably constitutional. the instruction is whether determine interpretations ble S. 2d 510, 61 L. Ed. v. Montana 442 U.S. (Sandstrom, murder, the jury Sandstrom, for deliberate a conviction 2450.) In Ct. “ the or- intends person presumes ‘the law was instructed ” L. U.S. (442 acts.’ voluntary of his consequences dinary acted 2450, 2453.) Ct. Whether 99 S. Ed. trial. The with the intent was the issue at court found requisite only that would susceptible interpretations that the instruction was two first, conclusion, which stating be unconstitutional: as was irrebut- table, intent, second, shifting that the defendant acted with or as onto of in- the defendant the of the absence persuading burden *9 would tent. Both would violate due interpretations process, relieve the of element of the offense proving every State of its burden Also, a would beyond interpretation reasonable doubt. conclusive it is fact-finding province jury, particular duty invade of the whose to an of provide independent guilt determination or innocence. Sand- said, then, strom that an inter- reasonably instruction that can be as conclusive or to an element preted persuasion-shifting respect of an applies offense is unconstitutional and cannot be used. This rule though even the instruction can also be in that are interpreted ways constitutional.
The of the at issue here commands the first instruction paragraph a of jury presume proof beyond intoxication from reasonable doubt concentration; jury to a reasonable specified blood-alcohol of shifting per command could have the effect either of the burden or, what (a suasion to the defendant is “mandatory presumption”) more intox perhaps likely, conclusively establishing defendant’s (a ication Either violates presumption”). interpretation “conclusive Furthermore, Sandstrom. a requiring proof beyond reasonable doubt of the specified does not the er prevent blood-alcohol concentration rors from arising, proof pertains only level of to the basic fact, not contrast, fact. In the second presumed paragraph the instruction allows the and to con jury ignore presumption sider other evidence instead. In v. Malik App. 206, 211, 931, 934, similar N.E.2d this court had before version of IPI Criminal No. in dictum that “the contra 23.06 said diction between the raises least a as paragraphs two close to whether the so confused as to think the jury might presumption either or such as to a burden on the defendant mandatory place his prove sobriety. Sandstrom.” separately,
Viewed the two are inconsistent: the paragraphs command in one apparent first is contradicted the second. But resolving visible basis for is the se provided by contradiction quence paragraphs, might reasonably from which the here have concluded that the second controlled it was later simply because Furthermore, this in broader. whatever confusion arose from struction was were dispelled by jurors the other instructions. The in thorough explanation independent weighing of their role jurors of fact. were determining questions evidence of the charge, to be innocent presumed
told that the defendant was a reason- guilt beyond had the his proving that the State burden doubt, throughout remained with the State and that that burden able that the State had to the issues instruction said Finally, the trial. constituting each of the beyond propositions a reasonable doubt prove contained in instructions as a whole cured the error change. on the paragraph presumption. that one instruction error that came out of the any we conclude Alternatively, harmless. In Connecticut v. Johnson instructions was Ct. the court discussed but Ed. 2d 103 S. U.S. 74 L. harmless constitutional the doctrine of was unable to decide whether 18, 17 L. (1967), 386 U.S. Chapman error set forth California errors, i.e., to Sandstrom applied 87 S. Ct. could be Ed. 2d The of containing presumptions. instructions unconstitutional presumptions contained conclusive instructions Johnson fending the convictions had reversed Supreme intent. The Connecticut Court considering prosecu without instructions improper affected harmless; the apparently that the errors were court argument tion’s justices could not be harmless. Four errors believed Sandstrom *10 view, and four agreed Court with Supreme the United States on the believ opinion subject, not an express the ninth did disagreed; review, accepted not have been instead that the case should the of the judgment that affirmed disposition he the simply joined and on the Thus, binding render a decision court. State Johnson considered whether Sandstrom that previously and courts question, v. Zant E.g., Spencer to do so. harmless have continued errors were 707 (6th 1983), Koehler Cir. 1562; Engle 715 F.2d v. 1983), Cir. (11th F.2d 241. sure, To some here. be analysis is appropriate
Harmless-error
in
harmless,
in those
and
error can never be
of instructional
types
of the
necessary regardless
be
always
stances a new trial will
Hay
v.
(E.g., People
the defendant.
against
of the evidence
strength
in
raised
(the
410
defendant
Ill. 2d
(1980),
wood
murder,
gave
the trial court
charge
to a
toxication as a defense
it
defense,
defining
correctly
one
instructions on the
jury
two
(1978),
v.
People
it
Stromblad
defining
incorrectly);
the other
re
jury
in which
(an obscenity prosecution
These are not problems present could not have instruction presumption neous first in the paragraph not have hobbled The error could the entire charge jury. tainted not so fundamental its The error was out duties. carrying trial. warrant a new automatically or basic that it must error can be a federal constitutional Chapman said that “before that was to declare a belief harmless, the court must able held (Chapman a doubt.” harmless reasonable beyond California are 18, 24, 705, 710-11, 828.) 87 S. Ct. We 386 U.S. 17 L. Ed. 2d here that whatever error occurred satisfied a reasonable doubt beyond that he con- testimony The defendant’s own showed was harmless. the ac- preceding in the several hours sumed a fair amount of alcohol that the defendant was under the cident. The officers police believed car, their later took him from his influence of alcohol when test showed that out. The results breath observations bore Thus, conclude concentration. we relatively high blood-alcohol harmless from the instruction was any emanating presumption doubt. beyond reasonable
Affirmed.
TRAPP, J., concurs. GREEN, concurring: specially
JUSTICE close, to be Malik, I stated in I consider Although, as 23.06, No. I that IPI Criminal agree majority in- instructions, have been reasonably other could context of the per- to shift the *11 to be or burden terpreted mandatory that, if the instruction However, I am not to hold prepared suasion. harmless be- interpreted, could have been so reasonably portion I in that join do yond Accordingly, a reasonable doubt. the opinion. and concur opinion agreement
I am otherwise to affirm. decision