1 NOTI CE Decisi on fi led 06 /24/08. The t ext of this dec ision m ay be changed or corr ected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. NO. 5-06-0639 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

________________________________________________________________________ THE PEOPLE OF THE STA TE OF ILLINOIS, ) Appeal from the ) Circui t Court of Plaintiff-Appell ee, ) S t. C lai r C ou nt y. ) v. ) No. 06-CF-877 ) DEAN RI GSBY, ) Ho nora ble ) John Bari cevic, De fend ant-A ppella nt. ) Judge, presi ding.

_____________ __________________________________________ __________________ JUS TIC E W EL CH delive red the opin ion o f the c ourt: After a jury trial, the defendant , Dean Rigsby , was found guil ty of drivi ng under the influe nce of alcohol with a blood- alcohol content of .08 or more ( 625 ILCS 5/11-501(a) (1) (West 200 4)). O n app eal, the d efen dant a rgu es that th e State failed to pro ve him guilty beyond a reasonabl e d oub t beca use th e State failed to pro ve tha t the bre ath-an alysis instr um ent w as p rop erly ce rtifie d be for e an d af ter th e de fen dan t's bre ath te st. BACKGROUND On May 25, 200 6, th e de fen dan t wa s a rr es te d byOffi cer Robe rt Boeh m o f th e Lebanon police department for dri ving underthe inf luence of al cohol with a blood- alcohol content of .08 or m ore. In th e am ende d crim inal i nformati on, dat ed July7, 2006, t he defendantwas charged with a ggravate d drivi ng under the i nfluence i n violat ion of s ect ion 11-501(a) (1 ) of the Illinois Ve hicle Cod e (625 IL CS 5 /11-501(a )(1) (West 2 004)). A jury trial w as h eld o n O ctob er 9 , 200 6, in wh ich th e fo llow ing evid enc e w as p rod uce d. OfficerBoehm, the only witness, testifie d that at approxi mately1:45 p.m ., a motorist alerted him to a re d pickup truck o n the s ide of the roa d w ith a w hite male slumped over the2

steering wheel. When Boehm ar rived, he found the pi ckup truck s til l runni ng and the d efendant slumped over t he steering wheel, unconscious , with hi s foot on the brake. The officer also t esti fied that he saw two open beer cans in t he bed of the t

ruck and one open beer
can on t he tr uck 's floo rbo ard
. Boehm unsuccessfull y attempted t o wake the defendant and then call ed for a n ambulance. Before the ambul ance arrived, the defendant woke
m om en tar ily, a sked Boehm for a kiss , and sai d "Alikazam" before passi ng out agai n. The paramedics arri ved, examine d the defendant , and t old Boehm they be lieve d tha t the defendantwas intoxi cated and t hat he did not nee d to go to the hos pital . Boehm testifie d he notice d that t

he defendant' s ey es were red and gl assyand that the defen da nt 's speech was slurred and very thick- tongued. He also tes tifi ed that the defendant

smelled s trongl y of
a lcohol and th at the defendant was unabl e to perf orm a fiel d sobrie ty test because the defendant was unabl e to st and and maintai n conscious ness. Boehm assis ted the defendant to the p olice c ar and transp orted h im to th e Le bano n po lice de partm ent. Boehm testi fied that on May 25, 2006, he was cert ifie d and lice nced by t

he State of Illinois to operate the E C-IR inst rument, a machine that measures a person' s blood-a lcohol conte nt. He also tes tified tha t C ly de Matthews certifie d the machine on Apri l 12, 2006. Boehm o bserv ed the defendant for 20 minute s and then admi nist ered a bre ath te st t o the defe ndan t, afte r do ing a bla nk c hec k on the m ach ine. "People' s Exhibit No. 1" wa s the EC

IR instr um ent p rinto ut o f the def end ant's b reath -test r esu lts. Boehm identi fied the print out
as being from the defendant' s test , expl ained the blank-c heck reading, and testifie d that t he print out indicated that t

he defendant' s blood alcohol was .276, more t han three times t

he legal limit of .0 8. B oe hm tes tif ied th at h e r ec or de d t he re su lts of th e d ef en da nt 's breath test i n the br ea th -a na lysi s in str um en t lo gb oo k. T he de fe nd an t d id no t o bj ec t to th is t es tim on y. On cross- examinati on, the defendant s howed Boehm "D efe nda nt's E xhi bit N o. 1," a photocopyof two pages of th e breath-analy sis i nstrument logbook, t

he firs t sheet

dated3

March 9, 2006, to May 25, 2006 (fir st l ogsheet) , and the second sheet dated April19, 2006, to May 25, 2006 (s econd logshee t). Boehm testi fied that the entri es are normallymade in chronologi cal order and t hat the defendant' s test

was rec orded on the l ast li ne of the first logsh eet. The entryabove the defendant' s in the logbook, also dated May 25, 2006, was by Clyde M atthew s, but it was crossed out . The second l ogsheet hadan entry on May 25, 2006, by Clyde Matthews indicat ing that the machine had been certifie d on that date, and this entry
was n ot cros sed out. Boehm testi fied that the time was not recorded i n the logbook indicating wh en M atthe ws per for me d th e ce rtific ation che ck o n M ay 25 , 200 6. Boehm also state d th at he had bro ugh t the e ntire log boo k w ith h im to the tr ial. After the redirect exam ination of B oehm , the State mov ed to intro duce "P e op le's Exh ibit No . 1," the p rintout s how ing the defe ndan t's breath -tes t bloo d-alcoholcontent of .276. The court ask ed th e de fen dan t if th ere w as a ny ob jectio n, an d he said no. The co urt adm itted the b reath -test r esu lts w itho ut o bjec tion
. The jury found the defendant guilt y of driving under

the inf luence. The defendantwas sente nced to 180 d ays in jai l, wit h 177 days credited for ti me served, and 21⁄2 years of pro batio n. ANAL YSIS On appeal, the defendant argues t hat the State fail ed to prove hi m guilty bey ond a
reaso nable doubt because the State fail ed to prove t hat the EC-IR ins trume nt had been prop erly certi fied for a ccuracyby the Department of St ate Poli ce, as re qui re d by20 I ll . Ad m. Cod e §128 6.200 (eff . June 30, 20 04). Under secti on 11-501.2( a) of the Ill inois Vehicle Code ( Code), "evi dence of the concentr ation of alcohol *** in a pe rson's b lood or bre ath at the time al leged, as determined by analy sis of t

he person' s blood, urine, breath[ ,] or other bodi ly subs tance, shal l be adm issib le." 625 ILCS 5/11-501.2( a) (West 2004) . This s ecti on of the Code then authori zes4

the Director

of State Police to app rove sati sfactory t echniques or methods to ce rti fy t

he accuracyof breath-testi ng equipment. 625 ILC S 5/11-501.2(a)(1) (West 2004). Under the regulat ion promulgate d by the Department of St ate Poli ce, a rebu ttable presumpti on that t he breath- testing instrum ent w as acc urate a rises ifthe fol lowing four condi tions are met: (1) the breath -analysis inst

rument wa s app rove d, (2) the accu racy che ck pr ior to the defendant's test
was within t

he accuracy

toler ance, ( 3) no accura cy che ck w as pe rf or m ed af ter th e d ef en da nt 's testor an accur acy c heck was p erformed after the de fendant' s test and it was wit

hin the accuracytoler ance, and ( 4) the defendant 's test occur red not more t

han 62 days after t

he last accuracyche ck. 2 0 Ill. A dm . Co de § 128 6.20 0 (e ff. J une 30, 2 004 ). A ccord ing to the defe ndan t, the State fail ed to prove the third requ ireme nt w hen it d id not int roduce evi dence that the EC-IR machine was tested after May 25, 2006, or evidenc e that the machine had not been test ed since May 25, 2006. I n his ar gum ent, the d efenda nt assum es that the EC -IR inst rument was test ed before the defendant took his bre ath test on May 25, 2006. The def endantar gue s that

bec aus e the S ta te fai le d t o pr es ent evi den ce t

hat th e EC- IR ma chin e eithe r was not subsequently test ed or was tes ted and found accur ate, the State f aile d in its burden of proof bey ond a reasonabl e doubt. We disagree. The State ha s an obli gation to prove every essential e lement of the cri me beyond a
reaso nable dou bt. Peo ple v. M agg ette , 19 5 Ill. 2d 3 36, 35 3 (20 01); People v. Hess , 24 Ill. App. 3d 299, 303 (1974) . The element s of the crime with which t he defendant was charged
are (1) dri ving or bei ng in ac tu al phy sicalcontrolof any vehi cle and ( 2) an alc ohol concentr ation in th e p er so n's bloo d or b reath of .08 or more. 625 ILCS 5/11-501(a)(1) (West 2006). The jury inst

ructi ons given i n this case, whic h layout the e lements of the cri me, are
as follows: "[A] person commit s the offens e of drivi ng with an al cohol concent rati on of 0.08
or more when he is in a ctual physi cal cont rol of a vehicl e while the alcoholconc entratio n in such a person' s blood or breath i s 0.08 or more." See I lli nois Pattern J ur y I nstruc tion s,5

Crimina l, No. 23.20 (4 th ed. 2000 ). Proving that

the breath-t est exami nation was performed accordi ng to the Department of State Police stand ards is not an el ement of the of fense of dri ving under t he infl uence but is instead a foundational requirement for the admission of the breath-test results. People v. Black , 84 Ill . App. 3d 1050, 1052 (1980) (e vidence that the machine was regul arlytest ed for accuracyis among the el ements of the foundati on requir ed for the admission of breath-test results); People v. Hest

er , 88 Il l. App. 3d 391, 393 (1980) (before breath-test resul ts may be recei ved into evidence, a proper foundat ion must be establish ed); Peo ple v. O rth , 124 Il l. 2d 326, 340 (1988) (the r equired f oundation f

or the admi ssibi lit

y of breath-test

results i ncludes, among other thi ngs, evi dence that the machine was tested r egularl y for accuracyand was working properl y) . The State's fail ure to l ay a pr oper foundation goes t o the admiss ibil ity of the bre ath- test re sults , not to th e su ffic ienc y of th e ev iden ce. People v. DeLuna , 334 Il l. App. 3d 1, 20 ( 200 2). Once the resul ts of the breath test showing the defe ndant' s alcoholcontent of .27 was admitted into evidence, there was s uffici ent evi dence befo re the ju ry for it to find him guil ty beyond a reasonable doubt, e ven if the evidence was i mproperly admitt ed. The defendant' s argument i n the case at bar i s simi lar t o that made by the defendant in DeLuna , 334 I ll. Ap p. 3d at 20
. In DeLuna , the de fend ant arg ued th at the S tate faile d to prove him guil ty beyond a reasonable doubt because the S t ate fai led to l ay a pr oper foundati on for the expert opini on of Dr. Kruski t hat the evidence s eized was cocai ne. As the court expl ained i n DeLuna :

"[ D ]e fe nd an t's contention as t o proper foundat ion is an att ack going t o the adm issibility of the evi dence present ed in Dr. Kruski 's opi nion, not to its su ff ici en cy. A rg ua bl y, suf

fi ciencyinvolves absence of proof of a basic element of t he crime. Defendant here is not chal lenging t he lack of pr oof as to the e xist ence of an ele ment of the cri me, sinc e Dr. Kruski testifie d to the i dentit y of t he control led subst ance. The6

chall enge is t o the fai lure t o laya proper foundat ion for the pro of o f that e leme nt. This goes to a d etermi nation of its admissi bili ty , rat

her than s uffici ency of t he evidence presented." DeLuna , 334 Il l. App. 3d at 20. The same is t

rue i n the case at bar. The defendant' s argument goes to the a dmissi bili ty of th e e vi de nc e, n ot th e s uf fic ien cy. In DeLuna , the court found t hat the defendant had w aived any objection to t he admissi on of

the evi dence because t

he defendant failed to object dur ing the tr ial. DeLuna , 334 Ill . App. 3d at

19. That court st ated that an objection requi rement i s especi ally important in cases of an i mproper foundation beca u se err ors in l ayi ng a foundati on are easi ly cured. DeLuna , 334 Il l. App. 3d at 21. In the insta nt case , on his cr oss -e xami natio n of Offi cer Boeh m, the defendant

exposed what he argues was the State's improper foundation, by i ntroduci ng into evi dence a copy of the breath- analy sis i nstrument log. The defe ndant the n failed to object when the Stat e moved to introdu ce the results o f the b reath te st on redir ect examination. This fai lure t o object
wa ived the is sue of a n im pro per fou nda tion on a ppe al. The defe ndan t mov ed fo r a direc ted ve rdict af ter the c lose o f the S ta te's case. The motion for a directed ver dict does not preserve the issue of an improper foundation because it wa s not a timely and spec ific ob jection to the f oun dati on requir ements. See People v. Sparks , 335 Ill. Ap p. 3d 249 , 2 54 (2002) ("[a] t imelyobjection in t

he tri al court

as to t he foundati on of tec hnica l evide nce is n ecess ary to give the S tate the opport unity to corr ect any defici ency in the pro of"); People v. Bynum , 257 Il l. App. 3d 502, 514-15 (1994). The motion for a direc ted verd ict also d eprive d the S tate of the opport unity to corr ect anyfoundati onal defici encies bec aus e it w as m ade afte r the clos e of the S tate's c ase . Also , had a ti mely objection been mad e, the fo und ationa l prob le ms could have been cured, because Officer Boehm brought wit

h him to the tri al the entire breath-analy sis l og, which would have7

con taine d an y info rma tion abo ut su bse que nt ac cur acy ch eck s. The ex ce pt io ns to th e w aiv er ru le a lso do no t ap pl y. Exceptions to the wa iver rule are made " 'where t

he all egati on of error

would not normall y be expe cted t o be include d in a [ sic ] post[] tri al motion ' " or where " 'the reviewing c ourt elects to take no tice of plain errors affecti ng substant

ial rights pursuant

to Supreme Co urt Rule 615(a).' " DeLuna , 334 Ill . App. 3d at 19-20 (quo ting People v. Lopez , 2 42 I ll . Ap p. 3d 1 60, 162 (1 993 )) ; 1 34 I ll . 2 d R. 615(a). The alle gation of err or in the case a t bar w ould norm ally be ex pecte d to b e ma de in
a postt rialmotion. See DeLuna , 334 Il l. App. 3dat 20 (fou ndatio nal erro r wa s exp ected to be raised in a postt

rial motion). The defendan t also cannot make a case und er the s econd prong of the waiver rule because fou ndatio nal issu es go to the admiss ibil ity of the evi dence, not to the s uffici enc y of the evi den ce. DeLuna , 334 Il l. App. 3d at 20. Accordi ngly , any
erro r do es n ot af fec t the d efe nda nt's su bsta ntial righ ts an d th e err or is w aive d. CONCLUS ION The fou ndatio nal issu es w ere w aived by the de fend ant, and the State metits burden of proo f on each element of drivi ng under the i nfluence of al cohol. The judgment of th e circu it cou rt of St. C lair C oun ty is her eby a ffir me d.

Affirmed.

GO LDE NH ERSH , J., concurs.

JUSTICE C HAPM AN, dissenting: I diss ent f rom the m ajor ity's opin ion
. I do not conclude that defense coun sel w aived her clie nt's right to c om plain that there
was a lack of foundat

ion support

ing the breath-a lcohol evidence utili zed in th e d ef en da nt 's8

conviction. There was no doubt that the defens e argued the matter of foundati on from the beginning of th e tria l. The m a jori ty is cor

rect t hat when the St ate sought to int roduce the breath- alcohol test

resul t in i ssue, defe nse c ounsel di d not objec t to i ts i ntroduction. How ever, I beli eve that

given the number of other times before, during, and after the trial t hat the fo und atio n i ss ue was ra is ed by de fe ns e c oun se l, th e f oun da ti on i ss ue wa s pr ese rve d. I also not e that

the State does not ar gue that the defendant

waived the i ssue. Prior to the t rial , counselfor the de fendant sou ght di scovery of the n ecessary foundati onal document s f ro m t he State . Those reque sts were dated Jul y 10, 2006, and September18, 2006. Bya pretrial motion in limine , the defendant as ked the court to bar t he St ate 's use of the breath-test r esult s for the State 's f ailure to produce them in d iscovery before the trial. The prosecut or repl ied and i ndicat ed that he did not be lieve he needed the l ogbook, to which the trialjudge pres sed him on whether or not he had suffi cient

foundati onal evidence. The prosecut or had no documentation in hi s fil e, and he had t o leave the courtr oom to conta ct the police department . The logbook pages util ized at the tri al were the
ones that the Leb anon police depa rtmen t faxe d to the p rose cuto r. The tri al court indicated that a ruli ng would be forthc oming, but the rec ord and the mi nute entries refle ct no such order. During cross -examination, aLebanon police officer admitt ed that

he did n ot kn ow if the May 25, 2006, cert

ific ation c heck had been performed before or after the de fend ant's test. The State ha d the officer on the stand , and in poss ession of the logb ook , and d id no t seek to clari fy the matter

by documenting anycerti fication done aft er the date o f the d efen dant's tes t. The majorit

y' s contention that

the defens e "sandbagged" t he State by waiting to r ai se t he foundati onal fail ures until couns el fi led a moti on for a d irected verd ict is fac tually incor rect. Any furthe r que stionin g on the pa rt of the defe nse c oun sel abo ut prio r or sub sequent certi fication checks w ould hav e been c ontrary to the pos iti on of her clie nt. I t was up to t he State to veri fy the exi stence a nd timi ng of these recertific ation c hecks, and t here is no reason9

that th e St ate could n ot have d one so o n direct and/or o n redirect. W hile her mo tion for a directed verdict

at the close of t

he State 's c ase did i nvolve thi s missi ng elem ent, ther e sho uld hav e been n o doubt from the motions fi led befor e the trial , and her que sti oning duri ng the trial, wh at arg um ent d efe nse cou nse l wa s m akin g. Furthermore, the missi ng elementis a key foundati onal component to t he most import ant pie ce of evidence used agains t the de fendant in this c ase . Her argument bya motion for a directed verdict should not have been a surprise to the St ate. De spite defense counsel 's f a il ure to object to t

he admission of the breath-test docu men t, from the entirety of t he motions, arguments, and cross- examinati on, I would not conclude that the defendant waived hi s right to objec t to t

he lack of foundat

ion. I would also l ike to c omment on this foundati onal requirementto stress its importanc e to the c rime with whic h the defendant was charged. The use of breath-alcohol-test ing instruments is fairly complicat ed, in th at only ce rtain instrum ents are authori zed by the federaland state governments to be used for t he detection of blood-al cohol cont ent, only highly trai ned indivi duals can ope rate t he inst ruments, and the instrum ents requir e frequent test s to ensure thei r reliabil ity . See 20 Il l. Adm. Code §1286.210 (eff. June 30, 2004) (contai ning the l ist of ap proved b reath- alcohol inst ruments–i nstrument s that have been the s ubject

of rigor ous test

ing); 20 Il l. Adm. Code §1286.230 (eff. June 30, 2004) ( the accur acy or certi fication checks that must be performed
no more than every 62 day s); 20 I ll. Adm. Code §1286. 70 (eff . June 30, 20 04) (th e rule regardi ng the maint enance of reco rds r elative to t he test s performed by defendant s, the
accu racy tests, an d any se rvice re cord s); 20 Ill. Adm. Code §1286.100 (eff. June 30, 2004) (the licensu re requ ireme nts for al l breath -alcoh ol-instru men t opera tors). A ddition ally, in orderfor evidence of the blood concentration of alcohol to be admissible, the testi ng must have be en pe rform ed in k eepin g w ith "stan dard s prom ulgate d by the D epartm ent of State10

Police" and by a pe rson posse ssing a pe rmit i ssue d by the Depa rtment of State Pol ice for purposes of testin g b lood-al cohol cont ent. 625 ILCS 5/11-501.2( a)(1) (West 2004). The Departmentof State Police i s authorized bystat ute to " certi fy t

he accuracyof breath[-]t esti ng equip men t" and to "pr escri be regulations as necessary" relative to training an d to ensure the accuracy of the instruments. 62 5 ILC S 5/11-5 01.2(a)(1) (W est 2004). At issue i n this case was one portion of the regul ation t hat inc luded the following requ ireme nt: "No accuracycheck has been performed subsequent to the s ubject

test [,] or the performance of t

he inst rument on the next accur acy check after the subject t est was with in the accur acy toleranc e desc ribed i n this Subpart. " 20 Ill . Adm. Code §1286 .200(c) (eff. Jun e 30, 200 4). If the regul at ory "no test " language i s li teral ly construed, as t he State urges, that inter pretat ion produces wha t I find to be an "absurd resul t." See People v. Hanna , 207 I ll. 2d 486, 498, 800 N. E.2d 1201, 1207 ( 2003). Whe n an interpre tati on of the wording of a statute utiliz ing the p lain- me anin g ru le w oul d lea d to an " abs urd " res ult, then the pla inme anin g ru le ne ed n ot b e fo llow ed. Hanna , 207 Il l. 2d at 498, 800 N.E. 2d at 1207-08. The pu rpos e of th e certific ation te sts is to en sure th at the in strum ent is pr oper ly functi oning, th er eb y en su rin g r es ul t ac cu ra cy. The langu age o f this regulat ion mandates that any subsequent

certi fication check b e w ithin th e allow able ra nge. T his, too, se rves to establishthat t

he inst rument co nt in ue s to fu nc tio n p ro pe rly. By infe rence, if the certi fication tests performed before and after a defendant 's test y ield result s withi n the accepted de viati on values (and the de partment was using an approv ed instrume nt and the c ertification tests were comp leted every 62 days or less), then as t he regulation s tate s, "[a ] rebuttable presumpti on exists that a n inst

rument was a ccu ra te atth e partic ul arti me a subject test was performed" (20 Ill. Adm. Code §1286.200 (eff. June 30, 2004) ). Iwould conclude that the "no test " language11

does no t al lo w th e S tat e to sim pl y n eglect to int roduce it s evidence relat ive to t he next certi fica tion che ck. In this case, t

he tri al did not

occur unti l some months after the 62 day s foll owing the de fe nd an t's test . So, t

here neces sari ly would have been anothe r accura cy test af ter the de fe nd an t's test . The finalentri es of both of t he logbook sheets intr oduced int o evidence relat ive to the brea t h-alcohol -tes ting i nstrument used by the Lebanon poli ce department coinc identa lly en de d o n Ma y 25, 2006. The next page s of thes e logbooks were not intr oduced, and there was no testimony about a certifi cati on check conducte d after May 25, 2006. Furthermore, to accept the State's theorythat " no test " means that the dep artme nts
were not req uired to test the in strum ent fo r accu racy at an y time afte r the de fend ant's test, the evidence at the trial c ertai nly did not pr ove that no test had occurre d. From entries ( one final ized and one cross ed out) on t he two logbook sheet s int roduced into evidence, there was
an accuracycheck performed on the sam e date that t he defendant' s test

was performed–May 25, 2006. We do not doubt t hat this May 25, 2006, test was designed t o be the next accuracy check after t h e April 12, 2006, accur acy test. The State coul d have taken t he position that this May 25, 2006, test was performed b efore t he defendant' s test (earl ier i n the day) –elimi nating the need t o prove up the April 12, 2006, test . Or the St ate coul d have taken the pos ition tha t this May 25, 2006, test was performed aft er the de fendant' s test , which
wo uld have effe ctively satisf ied the third req uirem ent of the ad minis trativ e regula t ion on
ac cu ra cy. The State c hose to take neithe r positio n. In respons e to a defe nse mo tion for a directed verdict

during t he tri al ref

erenci ng the S tate's failu re to es tabli sh if the May 25, 2006, accuracychec k had been perfo rmed befo re or af ter the d efen dant's tes t, the pros ecutor said: "W e did not el icit testimony t

hat the certi fication happened on the day of this arrest.12

We elicited te stimo ny that it hap pene d 43 days earlie r, wh ich is w ithin th e t ime fr ame allow able by law ." From this argument I be lieve that t he prosecut or missed t

he point of the requ ireme nt. O bv io us ly, had the Il linoi s Stat e Police employe e who performed the acc uracy check on May 25, 2006– ag ain , C lyd e Matthews–li sted t he time of t

he test , the handling of

this evidence
wo uld likely hav e bee n diff erent. F rom a look at the tw o log boo k she ets in ev idenc e, it
wo uld appear that Cly de Matthews di d not eve r recor d the ti me of his certifi cati on checks–just the date and the results
. The April 2006 acc uracy check resul ts al so contai ned
no li st ed time for the chec ks. Th e pro secu tion too k the p osition that by pro ving up th e A pril 12, 2006, accur acy c heck, the State 's required e vidence r egardi ng the re liabil ityof the test resul t in ques tion was comple te. About this , I contend that the State was wrong. The more specif

ic manner i n which the State c harg ed the defendant with dri ving under the influ ence of a lcohol ne cessi tate d the admiss ion of breath-al cohol te st re sult s. See 625 ILCS 5/11 -501 (a)(1) (W est 20 04). B ecau se the S tate faile d to prove t he foundati onal elementnece ssary to establ ish the accuracy of the defendant 's May 25, 2006, breath-a lcohol testand because a br eath -a lc oho l tes t a t o r abov e . 08 wa s a re qui re d el emen t o f the c ri me with which the defendant wa s cha rged , I believ e that th e State failed to prove the de fendant gui lty of th e crim e be yond a rea son able dou bt. I also find that the maj ority' s rel iance upon People v. DeLuna , 334 I ll. App. 3d 1, 777 N.E.2d 581 (200 2), is misp laced beca use it is fact ually distinguis hable. In DeLuna , because the expert wit

ness had al ready testifie d that the subst ance at is sue was, i n fact, cocaine, the de fe nd an t's argumentwas not that the subst ance was something ot her than c ocaine but

that the State had not establi sh ed thatthe expert' s test imony was of t

he ty pe reasonabl y r elie d upon in the industry and/or that the m achines utilized in an alyzing the chem ical content w ere properl y functioning. DeLuna , 334 Il l. App. 3d at 19, 777 N.E. 2d at 597-98. With breat h-13

alcohol test s, admini strative regulations mandate testimony about the accur acy c hecks completedon the machine ut ili zed–checks comple ted both be fore and after the subject test and within a c ertai n t ime frame. Compliance with an administ rati ve regulation was not at issue in DeLuna
. Also, as the court in DeLuna indicated, "suffic iencyinvolves absence of proof of a b asic ele men t of the crime ," and that w as no t at is sue in DeLuna because the expert testifie d that t

he substa nce wa s, in f act, c oca ine. DeLuna , 334 Il l. App. 3d at 20, 777 N.E.2d at 59 8. In th is c as e, w ha t w as at i ss ue w as th e le ve l o f a lco ho l w ith in th e d ef en da nt 's sys tem as quan ti fied bya breath-alcoholtest –not the mer e presence of alcohol . Unlike cocaine, wh ich is illeg al in an y quantity, it is not a crime to have a blood-alcohol level les s than .08 as lo ng as it d oe s n ot im pa ir o ne 's drivi ng abili ties . Without proper t esti mony about the device' s hist ory of accurat e reporting, t he proof fai ls. This si tuati on involves the adm issibility of the r esult –not jus t the s uffici ency of t he evidence. For that

reason, the majorit y' s rel iance upon DeLuna is i nappropri ate. For th e reaso ns state d her ein, I resp ectfu lly dissent.NO. 5-06-0639 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ THE PEOPLE OF THE STA TE OF ILLINOIS, ) Appeal from the ) Circui t Court of Plaintiff-Appell ee, ) S t. C lai r C ou nt y. ) v. ) No. 06-CF-877 ) DEAN RI GSBY, ) Ho nora ble ) John Bari cevic, De fend ant-A ppella nt. ) Judge, presi ding.

___________________________________________________________________________________ Opinion Filed : June 24, 2008

___________________________________________________________________________________ Justice s : Honorable Th omas M . Welch, J.

Ho nor able Ric har d P . Go lden her sh, J ., Con curs Ho nor able M eliss a A . Ch apm an, J ., Diss ents

___________________________________________________________________________________ Atto rneys Daniel M. Ki rwa n, Depu tyDefe nde r, LarryR. Wells, Assist ant Defender, Office of for the State Appellat e Defender, Fi fth Judi cial Distri ct, 117 North Tenth Street, Suite Appell ant #300, Mt. Vernon, IL 62864

___________________________________________________________________________________ Atto rneys Hon. R ob er t H aid a, S tat e's A tto rn ey, S t. C lai r C ou nt y, 10 Public Square, Bell evill e, for IL 62220 ; Norbe rt J. Goetten, D irector, Stephen E. Norris , DeputyDirector , Sharon Appellee Shana han, Co ntract Attorney, Of fice of the S tate's Attorneys Appe llate Prosecutor,

730 E. Il linoi s Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________