People v. RosePeople v. Rose
- Reporters:
- , , ,
- Before:
- Knecht
delivered the opinion of the court:
Alan Rose, defendant, was charged with driving under the influence of alcohol (DUI), a violation of section 11—501 of the Illinois Vehicle Code (Code) (
The following facts are not in dispute. On April 23, 1993, defendant was arrested for DUI and speeding. On February 14, 1994, defendant filed a motion in limine to exclude from his trial evidence obtained from a PBT given him at the time of the arrest. Defendant alleged the State had no statutory or other authority to admit the results of a PBT in the State’s case in chief or during rebuttal.
A hearing on the motion was held, and the parties stipulated to the following facts:
“1. On April 23, 1993, at 10:22 p.m., Illinois State Trooper Juan Lingow stopped a motorcycle driven by defendant Alan B. Rose on Illinois Route 16 in Jersey County, Illinois.
2. Trooper Lingow would testify as follows:
a. That he stopped defendant for the offense of speeding (64 in a 55) and that while stopping defendant, observed defendant cross the centerline before pulling onto the shoulder.
b. That he detected a moderate odor of an alcoholic beverage coming from defendant’s breath and observed defendant to be unsteady on his feet.
c. That defendant refused to perform field[-]sobriety tests stating that defendant had had too much to drink and would fail it anyway.
d. That at 10:41 p.m., Trooper Lingow administered a preliminary breath test to defendant with an ALCO-SENSOR (digital read-out) [PBT] unit, manufactured by Intoximeters, Inc., 1901 Locust Street, St. Louis, Missouri 63101; said test disclosing a [blood-alcohol content (BAC)] of .156.
e. That the above[-]described [PBT] unit had been certified as accurate on April 16, 1993[,] and May 21, 1993[,] to within error not in excess of plus or minus .01; that the unit was operated in accordance with manufacturer’s specifications and operating procedures.
f. That Trooper Lingow placed defendant under arrest for the offenses of Speeding and DUI.
g. That at 11:55 p.m. Trooper Lingow read the Statutory Warning to Motorist to defendant; that at 12:19 a.m., April 24, 1993, defendant tested .14 BAC on the Intoxilizer 5000 breath test unit at the Jersey County Sheriff’s Office.
h. That Trooper Lingow was at the time of the arrest [a] certified Breath Analyzer Operator, and that his training included a course on the operation of the [PBT] unit.
3. That in complying with discovery, defendant notified the State that he intended to call an expert witness to testify as to the expert’s opinion regarding defendant’sBAC at the time of the arrest as opposed to the time of the test.
4. That in complying with discovery, the State notified the defendant that it intends to use the results of the preliminary breath test in either its case in chief or as rebuttal evidence should defendant claim that his [BAC] was less than .10 at the time of the arrest.”
The trial court granted the defendant’s motion in limine to exclude the results of the PBT in the State’s case in chief or during rebuttal. The court entered a written order:
“Cause called for determination of defendant’s Motion in Limine. The court having considered the arguments of counsel, the stipulated facts, the applicable statutory provisions, and the cases submitted finds that the Motion should be allowed. The court is of the opinion that the results of a preliminary breath screening test pursuant to Section 11—501.5 of the Vehicle Code are not admissible in the State’s case in chief or in rebuttal.
It appears that the purpose of the test is to aid the law enforcement officer in determining whether to require a chemical test as authorized by Sections 11—501.1 and 11—501.2. The procedures for administering this preliminary test using the portable device are not as stringent as the procedures for administering the ‘regular’ breath test and therefore the results cannot be considered to be as reliable. Moreover, Section 11—501.5 provides that ‘The results of a [PBT] may be used by the defendant as evidence in any administrative or court proceeding involving a violation of Section 11—501 or 11—501.1.’ This suggests to the court that the test- may not be used by the State as evidence. This interpretation appears to comport with common sense and logic. In fact, Section 11—501.6, concerning vehicular accidents involving personal injury, specifically provides in subsection (e) that ‘The results of any test or tests administered pursuant to this Section, other than a test conducted with a portable device, may be used in any civil or criminal action.’ (Emphasis supplied!.])”
The State filed a notice of appeal and certificate of impairment. The sole issue on appeal is whether results of a PBT are admissible by the State in a criminal proceeding during the State’s case in chief or during rebuttal. Although defendant has failed to file a brief, the record is simple and the claimed error can be decided without the aid of an appellee brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.
Section 11—501.5 of the Code now states:
“Preliminary Breath Screening Test. If a law enforcement officer has reasonable suspicion to believe that a person is violating or has violated Section 11—501 or a similar provision of a local ordinance, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a portable device approved by the Department of Public Health. The results of this preliminary breath screening test may be used by the law enforcement officer for the purpose of assisting with the determination of whether to require a chemical test as authorized under Sections 11—501.1 and 11—501.2, and the appropriate type of test to request. Any chemical test authorized under Sections 11—501.1 and 11—501.2 may be requested by the officer regardless of the result of the preliminary breath screening test, if probable cause for an arrest exists. The result of a preliminary breath screening test may be used by the defendant as evidence in any administrative or court proceeding involving a violation of Section 11—501 or 11—501.1.” (625 ILCS 5/11—501.5 (West Supp. 1993).)
To date, no court has resolved the issue whether, under
Although Hood did not resolve the issue, this court’s discussion of the purpose behind
“where the officer has probable cause to believe the motorist is under the influence of some substance, but is uncertain whether that substance is alcohol which would be detected in a breathalyzer test, or cannabis or a controlled substance which would not be detected in a breathalyzer test, the officer may utilize the PBT to assist him in the determination of whether to request the motorist to submit to a breathalyzer test or another chemical test.” (Hood, 265 Ill. App. 3d at 246, 638 N.E.2d at 274.)
However, since Hood, and prior to defendant’s motion to suppress, the legislature amended
The primary rule of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the true intent of the legislature. In determining the legislative intent, a court should first consider the statutory language. Where the statutory language is clear, it will be given effect without resort to other aids for construction. However, where the language is ambiguous, it is appropriate to examine the legislative history. People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 197, 607 N.E.2d 1251, 1253.
The language of
In determining legislative intent, a court may properly consider not only the language used in the statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved. (People v. Chandler (1989), 129 Ill. 2d 233, 253, 543 N.E.2d 1290, 1298.) A court may also consider relevant statements by legislators concerning the nature and effect of the proposed law. (Sulser, 147 Ill. 2d at 555, 591 N.E.2d at 429.) After a thorough examination of the legislature’s intent, the judiciary possesses the authority to read language into a statute which the court believes the legislature omitted through legislative oversight. (Chandler, 129 Ill. 2d at 253, 543 N.E.2d at 1298.) Having considered the language of
“Matijevich: ‘Yes, Mr. Speaker, Senate Bill 1283 is the Bill to authorize the use of portable breathalyzer devices and was prepared by the Illinois Association of Chiefs of Police. It is a particular help for law enforcement officers in rural areas where officers may have to transport individuals 30 or more miles to an evidential test site only to find that the results are too low. The preliminary breath screening devices are utilized with success in several states, including Wisconsin and Michigan ***. ***’
* * *
Young: ‘If the motorist passes the preliminary test, can the police officer still make him take the other test?’
Matijevich: ‘Yes. Yes, they could still . . . if there are other reasons why the arresting officer feels that there is evidence enough to arrest, they can. But in more cases than not, probably, if one passes the test, then the officer won’t take them to the evidential site. So, it can be a protection for the person.’
Young: ‘Are these preliminary tests admissible in court?’ Matijevich: ‘Yes, they are admissible. The defense can use these tests in court or in an administrative hearing.’
Young: ‘Can the prosecution use them in court?’
Matijevich: ‘Yes’ ” (Emphasis added.) (85th Ill. Gen. Assem., House Proceedings, June 26, 1987, at 396-97 (statements of Representatives Matijevich and Young).)
The State relies heavily on this last question and answer in arguing PBT results are admissible to prove intoxication in a criminal proceeding. However, the legislators did not discuss under what circumstances the prosecution could use PBT results, and so the State overrelies on these remarks. Significantly, Representative Matijevich seemed to distinguish between the PBT and the “evidential” breathalyzer test.
Two representatives rose in opposition to the bill. Neither disputed Representative Matijevich’s assertion the State would be able to use results from a PBT in court. In fact, Representative Countryman opposed the bill precisely because the PBT results would be admissible by the State:
“Countryman: ‘Well, I may be the only one who stands in opposition to the Bill, but I’m concerned about these machines not being tested in the same manner that the other breathalyzer machines are tested. Inaccurate material that can . . . that’s admissible in court, either way, is bad material.’ ” (Emphasis added.) (85th Ill. Gen. Assem., House Proceedings, June 26, 1987, at 397-98 (statements of Representative Countryman).)
Transcripts of the floor proceedings on the bill to amend section 11— 501.5 show even less debate:
“[Representative] Parke: ‘Thank you, Mr. Speaker, Ladies and Gentleman of the House. Amended at the request of the State Bar Association, House Bill 2294 places the primary breath test device in its intended place in the DUI arrest process. These tests are used to develop probable cause for the arrest and there is no penalty for refusing any of these tests. This change does not affect the state[’]s Implied Consent Law.’ ” (Emphasis added.) (88th Ill. Gen. Assem., House Proceedings, April 20, 1993, at 22 (statements of Representative Parke).)
House Bill 2294 passed the House and Senate unopposed.
Based on legislative remarks concerning
Returning to the language of
We note this interpretation of
The State, however, argues that under amended
Because of the scientific nature of tests measuring a person’s body chemistry, the Illinois General Assembly has codified procedural safeguards as a condition to the admission into evidence of body chemistry tests under certain circumstances. Section 11—501.2 of the Code states:
“Chemical and other tests, (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 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 substanceto be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Public Health in consultation with the Department of State Police by an individual possessing a valid permit issued by that Department for this purpose. The Director of the Department of Public Health in consultation with the Department 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 revocation at the discretion of that Department and to certify the accuracy of breath testing equipment. The Illinois Department of Public Health shall prescribe regulations as necessary to implement this Section.” (Emphasis added.) ( 625 ILCS 5/11—501.2(a)(1) (West 1992).)
Pursuant to
PBT’s, however, are much less regulated. (77 Ill. Adm. Code § 510.130 (1994).) Most importantly, none of the devices approved as PBT devices are approved as evidential devices. (Compare 77 Ill. Adm. Code § 510.130(e) (1994) (approved PBT devices) with 77 Ill. Adm. Code § 510.40(b) (1994) (approved evidential breath test devices).) The trial court noted PBT’s may be administered under less stringent standards than evidential tests and considered this fact in excluding the PBT result from admission. The State, on the other hand, argues PBT results should be admissible precisely because the more stringent standards of
The State relies on People v. Keith (1992), 148 Ill. 2d 32, 591 N.E.2d 449, for this proposition. In Keith, the defendant was charged with reckless homicide. He sought to bar breathalyzer test results from evidence because the results did not comply with the foundational requirements of
Keith directly contradicts the State’s contention PBT results under
We express no opinion whether PBT results are admissible by the State in a criminal proceeding to rebut testimony or other evidence put forth by the defense that the defendant was not intoxicated at the time of the arrest. This issue has not been adequately addressed by the State in its brief, so we decline to resolve it.
We also express no opinion whether the result of this case would be different if the
Affirmed.
COOK and McCULLOUGH, JJ., concur.