NO. 5-01-0795

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellant and Separate-Appellee,	)  Effingham County.

							)

v.							)  No. 01-DT-90

							)

BORIS P. BONUTTI,				)

  							)  Honorable

     Defendant-Appellee and Separate-		)  Sherri L. E. Tungate,

     Appellant.					)  Judge, presiding.

___________________________________________________________________________

	JUSTICE WELCH delivered the opinion of the court:

	We have before us appeals from two orders entered by the circuit court of Effingham

County.  The plaintiff, the People of the State of Illinois (the State), appeals an order granting

a motion by the defendant, Boris P. Bonutti, to suppress the results of a breath-alcohol test. 

The defendant appeals an order denying his request to rescind the statutory summary

suspension of his driving privileges.  For the reasons that follow, we affirm both orders.

	The facts in this case are as follows.  On April 26, 2001, at approximately 11:04 p.m.,

the defendant's vehicle was stopped by officer Richard Largen of the Illinois State Police for

speeding.  Officer Largen conducted field sobriety tests on the defendant, the driver of the

vehicle.  According to Officer Largen, the defendant failed these tests, was arrested, and was

cited for driving under the influence of alcohol.  

	The defendant was then transported to the Effingham County sheriff's department,

where he agreed to take a breath-alcohol test.  Officer Largen observed the defendant for 20

minutes prior to administering the test.  Officer Largen did not observe the defendant

regurgitate before taking the test.  The results of the test indicated that the defendant had a blood-alcohol content of 0.174.  The defendant's driving privileges were immediately

suspended pursuant to section 11-501.1(c) of the Illinois Vehicle Code (Code) (625 ILCS

5/11-501.1(c) (West 2000)).  On May 21, 2001, the Secretary of State confirmed the

statutory summary suspension of the defendant's driving privileges.

	On July 26, 2001, the defendant filed a "Request for Judicial Hearing" seeking a

rescission of the statutory summary suspension of his driving privileges.  The defendant

alleged that the breath test taken on April 27, 2001, was unreliable because the

administration of the test did not conform to the procedures outlined by section 11-501.2 of

the Code (625 ILCS 5/11-501.2 (West 2000)).  Specifically, the defendant alleged that he

had not been continuously observed for 20 minutes prior to the testing and, because he had

not been continuously observed, the "absence of regurgitation during the observation period

was not confirmed prior to obtaining a breath sample."  Essentially, the defendant claimed

that he regurgitated within 20 minutes of taking the test.

	A hearing was conducted on September 10, 2001, pursuant to the defendant's petition

seeking a rescission of the statutory summary suspension.  Officer Largen was called by the

defendant to testify.  Officer Largen testified that the defendant was arrested on April 26,

2001, cited for driving under the influence of alcohol, and transported to the Effingham

County sheriff's department, where the defendant agreed to submit to a breath test.  Officer

Largen was the only person involved with the administration of the breath test.

	At 11:50 p.m., Officer Largen read the standard "Warning to Motorists" to the

defendant.  At 12:01 a.m., Officer Largen began preparing the breath-test machine.  Officer

Largen spent about three minutes entering data into the machine, during which time he kept

his "eye on [the defendant]."  The test was administered at approximately 12:05 a.m.

	Officer Largen was aware that he was required to continually observe the defendant

for at least 20 minutes prior to the defendant taking the test.  Officer Largen understood that this is to ensure that the defendant does not "regurgitate, or belch, or anything like that." 

Officer Largen was cognizant that a regurgitation could result in the presence of mouth

alcohol and that the presence of mouth alcohol can affect the accuracy of a breath test and,

hence, render it untrustworthy.  However, Officer Largen testified that he observed the

defendant at all times during the defendant's custody and that, during that time, the defendant

did not burp, belch, or regurgitate.  Officer Largen did acknowledge that at some point prior

to taking the test, the defendant requested a glass of water, but he stated that this request was

denied.

	The defendant testified on his own behalf.  The defendant acknowledged that he was

arrested for driving under the influence of alcohol and taken to the Effingham County

sheriff's department, where he agreed to take a breath test.  However, the defendant claims

that he regurgitated during the 20 minutes before he took the test.

	The defendant testified that he suffers from esophageal reflux disorder.  He testified

that one of the effects of his condition is that acid from his stomach rises through his

esophagus and enters the back of his throat.  When this occurs, he experiences pain that he

described as similar to "a heart attack."  The defendant testified that during the 20 minutes

before he took the test, he experienced this pain.  The defendant did not tell anybody at the

department that he had regurgitated prior to taking the test, but he claimed that he did ask for

a glass of water in order to relieve the burning sensation.  The defendant stated that he did

not tell anybody at the department that he had this condition, because nobody asked.  The

defendant testified that he takes Prilosec to help control the symptoms he experiences from

esophageal reflux.

	After the defendant presented his evidence, the State made a motion for a judgment. 

The State argued that the testimony of Officer Largen provided sufficient evidence that the

defendant had been observed for more than 20 minutes prior to taking the test and that Officer Largen had observed no conduct that would put in question the reliability of the

breath-test results.  The State also asked the trial court to find that the defendant was not

credible.  

	The trial court denied the State's motion and stated, "[A]t this point there has been

testimony presented for the Court to consider eventually what weight to put to that, but there

has been at least enough testimony to shift the burden to the State."

	The State then called Officer Largen back to the stand.  Officer Largen testified that

the only comment made by the defendant regarding pain was that his shoulder hurt when the

handcuffs were put on.  Officer Largen testified that the defendant made no other comments

regarding discomfort within 20 minutes prior to taking the test and that the defendant did not

exhibit any outward manifestations of pain.  Officer Largen stated that the defendant did not

state why he wanted a glass of water and that the defendant engaged in no unusual

swallowing.

	After hearing the State's evidence, the trial court denied the defendant's petition to

rescind the statutory summary suspension.  The trial court found that Officer Largen had

observed the defendant for more than the required 20 minutes prior to the testing, that there

had been no medical testimony regarding the effect of the defendant's condition, and that

there had been no evidence regarding Prilosec.  The court stated that although the defendant

described the pain as similar to a heart attack, such a pain would be very uncomfortable:

"something that [a person] would bring to the attention of someone who is about to ask you

to take a breath test."  The trial court noted that the "burden had shifted to the State" yet then

found that there had been no regurgitation and that "defendant had not met his burden of

proof."

	On September 14, 2001, the defendant filed a "Supplemental Motion to Exclude

Breath Test Evidence" seeking to exclude the breath-test results from his criminal trial.  The defendant again claimed that the breath test must be suppressed because he had regurgitated

during the observation period.  On September 17, 2001, the State filed a two-count

information charging the defendant with driving while under the influence of alcohol (625

ILCS 5/11-501(a)(2) (West 2000)) and driving with an alcohol concentration of 0.08 or more

(625 ILCS 5/11-501(a)(1) (West 2000)).  

	On September 18, 2001, a hearing was held on the defendant's supplemental motion

to exclude breath-test evidence from the criminal proceeding.  The parties agreed that the

evidence presented at the September 10, 2001, hearing could and should be considered by

the trial court.  The defendant then presented Dr. Karl Rudert, a physician, to testify on

behalf of the defendant.

	Dr. Rudert testified that the defendant has suffered from gastroesophageal reflux

disease (GERD) since 1992 and that the defendant is being treated for this condition.  He

stated that GERD is caused by a lack of competency in the lower esophageal sphincter.  The

lower esophageal sphincter normally prevents gastric acids in the stomach from rising into

the esophagus.  Dr. Rudert testified that the defendant has an incompetent sphincter that

"basically doesn't function even while on medications."  Dr. Rudert stated that GERD can

cause a person to experience a sensation of fluid coming up behind his heart and that this

will cause chest discomfort and a burning in the back of a person's throat.  Dr. Rudert

testified that the medication prescribed for the defendant helps to neutralize acid in the

defendant's stomach so that when the acid does rise, instead of the defendant experiencing

a burning sensation, he will simply experience a feeling of fluid rising to the back of his

throat.  

	Dr. Rudert testified that certain liquids like alcohol, beer, wine, coffee, and drinks

with carbonation can make the symptoms of GERD worse because they dilate the stomach

and therefore dilate the lower esophageal sphincter.  Dr. Rudert stated that one method to try to control the effects of an incompetent sphincter is to swallow.  Dr. Rudert testified that

reflux is silent and that reflux and regurgitation are synonymous.

	The defendant also testified at the hearing.  He again stated that he had experienced

reflux prior to taking the test and that he did not exhibit any outward manifestations of pain

but that he did ask for a glass of water.

	After hearing the evidence, the trial court granted the defendant's motion to exclude

the breath-test evidence.  In its findings, the trial court recalled that at the September 10,

2001, hearing, it had made a comment regarding the lack of expert or medical testimony

pertaining to the defendant's alleged condition.  However, the court noted that at the

September 18 hearing medical evidence had been provided that supported the defendant's

claim that his condition allowed for "fluid [to] come back up through the esophagus and back

to the back part of the throat."  The court noted that the defendant asked for a glass of water

but that no question was asked regarding whether the defendant had regurgitated.  The court

pointed out that if in fact the officer had asked the defendant if he had regurgitated and if the

defendant had answered in the negative, the court would then be suspicious of the

defendant's claim that he had actually regurgitated.  The trial court found that on the basis

of the testimony presented at the second hearing, the defendant had met his burden of proof

of presenting sufficient evidence that the test results might be unreliable, and the court

therefore granted the defendant's motion to exclude the results of the breath test from his

criminal proceedings.

	The State filed a certificate of impairment and now appeals the trial court's order of

September 18, 2001.  The defendant appeals the trial court's order of September 10, 2001. 

We turn first to the State's appeal.

	The only issue raised by the State on appeal is whether the "trial court erred as a

matter of law in granting defendant's motion to exclude the results of his breathalyzer test."  The State contends that the trial court erred as a matter of law in its interpretation of the

Illinois Administrative Code.  The State argues that the regulation should have been

construed to mean that if an officer observes the subject for the required 20-minute period

prior to testing and the officer does not observe any outward manifestations indicating that

the subject has vomited or regurgitated, then the breath test must be presumed reliable.  We

disagree.

	Section 11-501.2 of the Code provides 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 ***, evidence of the

concentration of alcohol *** in a person's *** breath at the time alleged, as

determined by analysis of the person's *** breath ***, shall be admissible.  Where

such test is made[,] the following provisions shall apply:

			1.  Chemical analyses of the person's *** breath *** 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, [or] trained phlebotomist acting under the direction

of a licensed physician, 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 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 2000).

Section 1286.310 of the Illinois Administrative Code provides:

	"The following procedures shall be used to obtain a breath sample to determine a

subject's [breath-alcohol concentration] with an approved evidentiary instrument:  

		a) Prior to obtaining a breath analysis reading from a subject, the [breath

analysis operator] or another agency employee shall continuously observe the

subject for at least 20 minutes.  

			1) During the 20[-]minute observation period the subject shall be

deprived of alcohol and foreign substances and shall not have

regurgitated or vomited.  

			2) If the subject regurgitates or vomits during the observation

(deprivation) period, the process shall be started over by having the

individual rinse the oral cavity with water.  

			3) If the individual continues to regurgitate or vomit, alternate testing

shall be considered."  20 Ill. Adm. Code §1286.310 (2001).

	Before we turn to the substance of the State's argument, we must first address a claim

made by the State in its brief, in support of its claim that this issue should be resolved as a

matter of law, that the trial court "made no determination as to the defendant's credibility[]

and made no finding that the defendant had in fact regurgitated prior to his breath test."  We

point out that the trial court clearly engaged in a fact-finding and credibility determination

and that its ultimate decision hinged on its finding that the defendant was credible when he

stated that he had regurgitated.

	The evidence presented at the September 18, 2001, hearing pertained solely to the

issue of whether or not the defendant had in fact regurgitated prior to taking the breath test. 

Had the trial court not made this credibility finding in the defendant's favor, nothing remains

as a basis upon which the trial court could have excluded the results of the breath test. 

Observation was not an issue at the September 18, 2001, hearing, because no evidence was presented during the hearing pertaining to observation, for that issue was resolved at the

September 10, 2001, hearing when the trial court found, "[T]here has been nothing about the

defense indicating, at least during the hour period of time from the arrest[,] that, in fact,

Officer Largen did not observe [the defendant]."  No claims other than the defendant's

alleged regurgitation were made by the defendant that in any way challenged the reliability

of the breath-test results.  Accordingly, although the trial court may not have specifically

stated in its order, "I find that the defendant is credible and that the defendant regurgitated,"

these findings are implicit in the trial court's decision.  Clearly, the trial court's determination

of the defendant's credibility, and specifically its finding that the defendant had regurgitated,

was the pivotal point upon which its decision turned.

	Keeping this in mind, we now return to the State's argument that the trial court erred

as a matter of law in granting the defendant's motion to suppress.  Essentially, the State

argues that, according to the regulation, if Officer Largen observed the defendant for 20

minutes prior to the defendant taking the breath test and if Officer Largen did not observe

the defendant regurgitate, it does not matter whether or not the defendant in fact actually

regurgitated prior to taking the test.  In other words, it appears the State is challenging the

trial court's decision to find regurgitation, as opposed to simply concentrating on Officer

Largen's observation.  The State also attacks the trial court's statement that the officer should

have questioned the defendant regarding whether the defendant regurgitated, stating that had

the authors of the regulation intended this, "the 20[-]minute period would likely have been

referred to as the 20[-]minute interrogation period."  In sum, the State argues that the trial

court's construction of the regulation is absurd in that it renders an officer's observations

worthless.  We find the State's argument unpersuasive.

	Administrative rules and regulations have the force and effect of law and must be

construed under the same standards that govern the construction of statutes.  Northern Illinois Automobile Wreckers & Rebuilders Ass'n v. Dixon, 75 Ill. 2d 53, 58 (1979).  Therefore, the primary objective of interpreting a regulation is to ascertain and give effect

to the intent of the drafters.  Metro Utility Co. v. Illinois Commerce Comm'n, 262 Ill. App. 3d 266, 274 (1994).  The best indication of what the drafters intended is the statutory

language itself.  City of Chicago v. Illinois Commerce Comm'n, 294 Ill. App. 3d 129, 135 (1997).  Clear and unambiguous terms are to be given their plain and ordinary meaning (West Suburban Bank v. Attorneys' Title Insurance Fund, Inc., 326 Ill. App. 3d 502, 507 (2001)), and where statutory provisions are clear and unambiguous, the plain language as written must

be given effect, without reading into it exceptions, limitations, or conditions that the

legislature did not express.  Davis v. Toshiba Machine Co., 186 Ill. 2d 181, 184-85 (1999).

	In the instant case, the regulation states, "During the 20[-]minute observation period

the subject shall be deprived of alcohol and foreign substances and shall not have regurgitated or vomited."  (Emphasis added.)  20 Ill. Adm. Code §1286.310(a)(1) (2001).  There is nothing in this regulation that provides that an "officer must have observed" the

subject regurgitate or vomit.  Contrary to the State's argument, the provision clearly states

that the subject shall not have regurgitated or vomited and this does not depend on whether

the tester observed the subject regurgitate or vomit.  

	The above regulation was established to ensure the accuracy of a breath test so that

an accused is not being subjected to inaccurate testing procedures by law enforcement

officers.  People v. Haney, 155 Ill. App. 3d 44, 46 (1987).  To accept the State's rendering of the regulations would require us to ignore the essential purpose of the regulation, that is,

to obtain an accurate test result.  Furthermore, it would require us to read into the regulation

a provision that clearly does not exist.  To effectuate the State's interpretation of the

regulation, we would have to read into the regulation the following italicized provision,

"During the 20[-]minute observation period the subject shall be deprived of alcohol and foreign substances and the observer shall not have observed the subject regurgitate[] or vomit[]."  Such an interpretation is preposterous and contrary to the clear language of the

provision.  Suffice it to say, we find no error with the trial court's interpretation and

application of the regulation, and we hold that the trial court did not err in granting the

defendant's motion to exclude the breath-test result.

	We now turn to the defendant's appeal.  In his appeal, the defendant raises one

argument: whether the trial court's decision to deny the defendant's petition for the rescission

of the statutory summary suspension was manifestly erroneous.  The defendant contends that

after he established a prima facie case that challenged the reliability of the test results and, hence, shifted the burden to the State to show that the test results were reliable, the trial

court's decision that the State satisfied its burden is manifestly erroneous.  The defendant

argues that the State failed to present any evidence to show that the breath-test results were

reliable and that, therefore, the State failed to rebut the defendant's prima facie case.  The defendant contends that his request to rescind the summary suspension should have been

granted.  We reject the defendant's claim.

	When a defendant seeks the rescission of a statutory summary suspension of a driver's

license, the burden is first on the defendant to make a prima facie showing that the breath- test results were unreliable.  People v. Orth, 124 Ill. 2d 326, 337 (1988).  Prima facie evidence has been characterized as being equivalent to the quantum of evidence required to meet the preponderance-of-the-evidence standard.  People v. Barwig, 334 Ill. App. 3d 738, 744 (2002).  The mere showing of noncompliance with the Department of Public Health

standards establishes a prima facie case of invalidity.  People v. Bergman, 253 Ill. App. 3d 369, 376 (1993).  Whether the defendant has met this burden of proof is a question of fact

for the trial court to determine.  Barwig, 334 Ill. App. 3d at 744.  After the defendant establishes a prima facie case, the burden then shifts to the State to show that the test results were reliable.  People v. Miller, 219 Ill. App. 3d 246, 248 (1991).

	In the instant case, after the trial court heard the evidence presented by the defendant,

it found that the defendant had met his burden of establishing a prima facie case.  The court stated, "I feel at this point there has been testimony presented for the Court to consider

eventually what weight to put to that, but there has been at least enough testimony to shift

the burden to the State."  In other words, based on the evidence before the trial court, at that

point in the proceeding the trial court believed that sufficient evidence had been presented

to demonstrate that the defendant had regurgitated prior to taking the test and that, therefore,

the test results were unreliable.  During the State's presentation of evidence, Officer Largen

testified that the defendant did not exhibit any outward manifestations of pain or complain

of any pain prior to taking the test.  This evidence, based on the trial court's ultimate

findings, led the trial court to reject the defendant's claims that he was experiencing reflux

and that he had regurgitated during the 20 minutes before he took the breath test.  We believe

that this evidence was sufficient for the State to satisfy its burden and that the trial court's

ultimate finding was therefore not manifestly erroneous.  

	The trial court stated in its finding its belief that if the defendant had actually

experienced the reflux and the symptoms that the defendant described as feeling like a heart

attack, the defendant would have brought it to the attention of the test-giver.  Based on

Officer Largen's testimony, the trial court questioned the credibility of the defendant's

previous testimony, and therefore, the evidence presented by the State sufficiently rebutted

the defendant's claim that he had regurgitated prior to taking the breath test.  Credibility is

a decision that lies in the exclusive province of the trial court because the trial court is in the

best position to observe the demeanor of the witnesses while testifying.  In re C.L.T., 302 Ill. App. 3d 770, 772 (1999).  The decision in this case turned on the trial court's resolution of

the credibility of the witnesses.  There is nothing in the record to indicate that at this proceeding the trial court abused its discretion in finding that the defendant was not credible

when the defendant claimed he regurgitated.  Accordingly, based on the record before us, we

cannot say that the trial court's decision to deny the defendant's petition to rescind the

statutory summary suspension was manifestly erroneous.

	For the foregoing reasons, the orders entered by the trial court are hereby affirmed.

	Affirmed.

	HOPKINS, P.J., and GOLDENHERSH, J., concur.

                                     	NO. 5-01-0795

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellant and Separate-Appellee,	)  Effingham County.

							)

v.							)  No. 01-DT-90

							)

BORIS P. BONUTTI,				)

  							)  Honorable

     Defendant-Appellee and Separate-		)  Sherri L. E. Tungate,

     Appellant.					)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:		April 4, 2003	

___________________________________________________________________________________

Justices:	Honorable Thomas M. Welch, J.

	Honorable Terrence J. Hopkins, P.J., and 

	Honorable Richard P. Goldenhersh, J.,

	Concur

___________________________________________________________________________________

Attorneys	Hon. Ed Deters, State's Attorney, Effingham County, Thomas O. Finks, Assistant

for	State's Attorney, Effingham County, 101 North 4th, Suite 400, Effingham, IL 62401;

		Appellant	Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Peterson,

	 Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Route 15 East,

	 P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________

Attorney	Lou J. Viverito, Taylor Law Offices, P.C., 122 East Washington Avenue, P.O. 

for	Box 668, Effingham, IL 62401

Appellee	

___________________________________________________________________________________