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_____________________________________________________________________________ 201 8 IL App (3d) 1 6 0 1 2 4 Opinion filed October 17, 2018

IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12 th Judicial Circuit, ) Will County, Illinois. P laintiff -Appell ee , ) ) Appeal No. 3-16-0124 v. ) Circuit No s. 15- DT -636 ) 15- TR -33589 XAVIER D. CRUMP, ) ) Honorab le Raymond A. Nash, Defendant

- Appell ant

. ) Judge, Presiding.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion

. O PINION ¶ 1 Defendant, Xavier D. Crump, appeals his conviction for driving with an alcohol concentration of 0.08 or higher (625 ILCS 5/11

- 501(a)(1) (West 2014)). He asserts that the trial court erred in admitting the results of his Breathalyzer test because (1) the State failed to lay the proper foundation to admit certain exhibits as business records and (2) regardless of whether the records were properly admitted, they were insufficient to certify the proper functioning of the Breathalyzer test

. We affirm

. ¶ 2 FACTS¶ 3 In May 2015, the State charged defendant with driving under the influence of alcohol ( id. § 11- 501(a)(2)), driving with an alcohol concentration of 0.08 or more ( id. § 11- 501(a)(1)), and improper parking on a highway ( id. § 11-1303 ). ¶ 4 The State presented the following evidence at defendant’s November 2015 bench trial. ¶ 5 Illinois State Trooper Brian Frank testified as follows. While on patrol at approximately 7:50 a.m. on May 10, 2015, he observed a vehicle parked along the right shoulder of the I -55 southbound ramp. He approached the vehicle and saw a man, who he identified as defendant, asleep in the driver’s seat. He could not recall whethe r the car was running but the keys were in the ignition. Upon waking, defendant’s eyes appeared “red, glassy and bloodshot” and Frank smelled “a strong odor of an alcoholic beverage emitting from his breath.” D efendant stated that he drank two beers and two mixed drinks at a bar the night before. ¶ 6 Trooper Frank asked defendant to perform standard field sobriety tests, including the horizontal gaze nystagmus, the “walk and turn” and the “one leg stand.” Defendant exhibited signs of intoxication during each test. As a result, Frank arrested defendant and transported him to the Illinois State Police headquarters. After F rank observed defendant for 20 minutes at police headquarters, defendant submitted to an “Intoxilizer” Breathalyzer test. Frank is certified i n administering the Breathalyzer test. The results of that test indicated defendant had a blood alcohol content of 0.131. Frank then issued defendant citations for driving under the influence of alcohol, driving with an alcohol concentration of 0.08 or mor e, and improper parking on a highway. ¶ 7 As proof of defendant’s intoxication, the trial court , over defense counsel’s objections, admitted a number of the State ’ s exhibits under the business- record exception to the hearsay rule. Specifically, State’s exh ibit No. 3 included a notarized “verified certification” letter, signed by

2the “Keeper of Records” of the Alcohol and Substance Testing Section of the Illinois State Police Academy, indicating that accuracy checks were conducted on the Intox EC/IR

- II
Breat halyzer machine at issue on May 1 and June 5, 2015 , and its corresponding attachments ( electronic certification) . The attachments included printouts of an “Intox EC/IR

- II Scheduled Certification” that indic ated a test date of May 1, 2015 , and an “Intox EC/IR

- 11 Certification check” that indicated a test date of June 5, 2015, both of which contained the following notations: “System Check: Passed” and “Test Status: Success.” State’s exhibit No. 4 was an “Intox EC/IR

- II Subject Test” dated May 10, 2015, indicating Trooper Frank administered the test to defendant, that defendant blew a .13 (the third decimal digit is blacked out), and containing “System Check: Passed” and “Test Status: Success” notations. Trooper Frank identified exhibit No. 4 as a printout of defendant’s Breathalyzer test created in the regular course of business. State’s exhibit No. 5 was the breath analysis instrument logbook from the State Police headquarters showing defendant’s test results from the Breathalyzer machine as
.131 . It also contained a June 5, 2015 , entry with a “certified accurate” notation by a Trooper D. Sheldon. Trooper Frank identified exhibit No. 5 as a logbook for the Intox Breathalyzer machine kept in the regular course of business. ¶ 8 At the conclusion of the State’s evidence, defense counsel moved for a directed verdict, again , asserting that the documents related to the Breathalyzer machine lacked proper foundation. The trial court denied the motion. Following arguments, the court found defendant guilty of driving with an alcohol concentration of 0.08 or more and improper parking but not guilty of driving under the influence of alcohol. The court recognized its “somewhat incongruous conclusions,” especially since the Breathalyzer results supported a finding of guilt on both charges, but the court opined , “While I certainly see evidence of impairment, I also see

3considerable evidence of non impairment that would, in regards to driving under the influence (a)(2) charge, would cause me pause.” In particular, the court noted that defendant exhibited “reasonable balance and physical acuity” during the field sobriety tests such that the court “could not draw a great deal of overwhelming weight to any evidence of impairment from the field sobriety tests.” ¶ 9 Defense c ounsel timely filed a motion to reconsider the verdict or, alternatively, for a new trial. Counsel , again , asserted that the trial court erred in admitting the exhibits relating to the Breathalyzer machine because the State failed to lay the proper foundat ion. The court denied the motion. Thereafter, it sentenced defendant to 24 months’ court supervision, fines, court costs , and 60 hours of community service. ¶ 10 Defendant appeals. ¶ 11 ANALYSIS ¶ 12 Defendant asserts t hat the trial court erred in admitting the results of his Breathalyzer test. A lthough defendant specifically delineates only one issue on appeal, his argument section presents two issues. Specifically, he argues

— in reverse order

— that the results of his Breathalyzer test should not have been admitted because (1) the State failed to lay the proper foundation to admit the electronic certification as a business record and (2) regardless of whether the electronic certification records were properly admitted business reco rds , they were “insufficient to certify the proper functioning of the breathalyzer machine.” ¶ 13 A. Standard of Review ¶ 14 At the outset, the parties disagree on the appropriate standard of review. Defendant

asse r ts that the issue of whether the State laid a proper foundation to introduce the results of his
B reathalyzer test is a legal question subject to de novo review. In support, he cites State v.

4Eagletail , 2014 IL App (1st) 130252, ¶ 19, and People v. Claudio , 371 Ill. App. 3d 1067, 1069 (2007), both of which held that a de novo standard of review applies in determining whether the State met the foundational requirements for the introduction of B reathalyzer tests results as set forth in People v. Orth , 124 Ill. 2d 326 (1988). In contrast, the State cite s People v. Torruella , 2015 IL App (2d) 141001, ¶ 24, in support of its contention that an abuse of discretion standard applies. In Torruella , the court found the abuse of discretion standard appropriate for determining whether the State satisfied the foundational requirements of the business records exception to the hearsay rule. Id. ¶ 15 Because we are actually presented with two separate issues here, both standard s of review are applicable

. First, we will determine whether the trial court abused its discretion in admitting the electronic certification records proffered by the State. A trial court abuses its discretion only when its ruling is “ ‘ arbitrary, fanciful, or unreasonable ’ or ‘ no reasonabl e [person] would take the view adopted by the trial court. ’ ” State v. Eagletail , 2014 IL App (1st) 130252, ¶ 26 (quoting People v. Donoho , 204 Ill. 2d 159, 182 (2003) ). I f we find the records were prop erly admitted , we will then consider de novo whether they establish that the Breathalyzer machine at issue “was tested for accuracy and working properly on the date the test was administered to the [d]efendan t” such that the results of defendant’s Breathal yzer test were properly considered. ¶ 16 B. Admissibility of the “Certification Records ” ¶ 17 Defendant maintains that the State failed to lay a proper foundation for the admission of the electronic certification records

. The State disagrees, asserting that the records were self

authenticating business documents under Illinois Rule s of Evidence 902 and 803. Notably, defendant does not argue that the State failed to lay the proper foundation to admit the printout of

5his test results or the logbook documenting his result. Thus we consider only the propriety of admitting the electronic certification records , i.e. , State’s exhibit No. 3. ¶ 18 Illinois Rule of Evidence 902 (Ill. R. Evid. 902 (eff. Jan. 1, 2011 )), provides that certain evid ence is self

- authenticatin g and, as such, extrinsic evidence of its authenticity is not require d where the document constitutes, in relevant part:

“ (1) Domestic Public Documents Under Seal . A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
*** (11) Certified Records of Regularly Conducted Activity

. The original or a duplicate of a record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written certification of its custodian or other qualified person that the record (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these ma tters; (B) was kept in the course of the regularly conducted activity; and

6(C) was made by the regularly conducted activity as a regular practice. ” (Emphases in original.) Id. In turn, Illinois Rule of Evidence 803(6) (Ill. R. Evid. 803(b) (eff. Apr. 26, 2 012)) , which governs records of regularly conducted business activities, provides:

“ A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted bu siness activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, but not including in criminal cases medical records. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. ” Id. ¶ 19 After review ing the record , we find that the trial court did not abuse its discretion in admitting the electronic certification documents

. Initially, we reject defendant’s contention that the records were not admissible because no one “familiar with the business and its mode of operation testif[ied] at trial as to the manner in which the document was prepared.” Self

authenticating business records do no t require testimony at trial. Rather, self

- authenticating

7business records need only be accompanied by written certification from the record’s custodian or other “qualified person” attesting to the three foundational requirements for business records descr ibed above. See Ill. R. Evid. 902(11) (eff. Jan. 1, 2011). ¶ 20 As indicated, the “verified certification” letter at issue here contains an official seal of the Illinois State Police, is signed by the “Keeper of Records” of the Alcohol and Substance Testing
S ection of the Illinois State Police Academy, and indicates that the accuracy checks

— which are attached to the letter

— were conducted on the Intox EC/IR

- II Breathalyzer machine at issue on May 1 and June 5, 2015. The letter also states that (1) “[t]he accuracy checks were made at or near the time of occurrence of the matters set forth”; (2) “[t]he accuracy checks were kept in the course of the regularly conducted activity”; and (3) “[t]he accuracy checks were made by the regularly conducted activity as a regular practice.” Accordingly, the State satisfied the foundational requirements necessary for admitting the electronic certification as self

authenticated business records. ¶ 21 We also reject defendant’s assertion in his reply brief that the records should not have been admitted because “[t]he method and circumstances of preparation of the ‘verified certification’ were untrustworthy

. ” In support of his contention, defendant notes that (1) the May 1, 2015 , “Schedule d Certification” “does not chronicle who created the document”; (2) the June 5, 2015, “Certification Check” does not explain who operator “Sheldon” is; (3) the logbook does not contain an entry related to an accuracy check being conducted on May 1, 2015; a nd (4) the “purported result of [his Breathalyzer] test is blacked out at the third digit which again calls into question all [of] the documents’ trustworthiness. ” As indicated above , defendant did not challenge the admission of the logbook or the result o f his B reatha lyzer test in his initial brief and may not do so in his reply brief. See S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (p oints not

8argued in initial brief shall not be raised in the reply brief). Moreover, defendant fails to elaborate on how the absence of certain information on the electronic certification documents renders them untrustworthy. As such, we find no error in the admission of the electronic certification documents. ¶ 22 C. Foundation Requirements for the Admission of Breathalyzer Test Results ¶ 23 Defendant also argues that the trial court erred in admitting the results of his Breathalyzer test because the State “failed to certify that the machine from which [his] test results were derived was accurate and properly calibrated at the time of [his] test.” ¶ 24 The results of a Breathalyzer test may be admitted if the State can show: “(1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the tests was certified by the Department of Public Health, (3) evidence that th e machine used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutes prior to the test and, during this period, the motorist d id not smoke, regurgitate, or drink, and (5) evidence that the results appearing on the ‘printout’ sheet can be identified as the tests given to the motorist.” Orth , 124 Ill. 2d at 340. Only the third foundational factor is at issue here, i.e. , whether the Breathalyzer machine was tested for accuracy and working properly on the date it was administered to defendant.

9Defendant raises no issue regarding whether the B reathalyzer machine was a model approved by the Department of Health. ¶ 25 To establish the accuracy of the Breathalyzer machine and that it worked properly on the date of the test, the State must show that “the [accuracy] test was performed in accordance with section 11

- 501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11

- 501.2(a) (West [2014])) and the regulations promulgated by the Illinois Department of State Police.” People v. Clairmont , 2011 IL App (2d) 100924, ¶ 12 (citing Orth , 124 Ill. 2d at 340). “In pertinent part, section 11 -501.2(a) authorizes admission of the chemical analysis of a person’s breath in the prosecution of the offense of driving with an alcohol concentration of 0.08 or more” so long as the Breathalyzer test was performed “ ‘according to standards promulgated by the Department of the State Police.’ ” People v Smith , 20 15 IL App (1 st ) 122306, ¶ 32 ( quoting 625 ILCS 5/11

- 501.2(a) (West 2010) ).
S ection 1286.200 of the Department’s regulations provides for a rebuttable presumption that a Breatha lyzer machine accurately recorded the subject test “if the following four condit ions are met: (1) the Breathalyzer machine was approved pursuant to section 1286.210 of the regulations (20 Ill. Adm. Code 1286.210 (2011) (not pertinent here)); (2) an accuracy check was conducted prior to defendant’s test that was within the ‘accuracy tolerance’ described in section 1286.230 of the regulations; (3) no accuracy check was performed after defendant’s test or an accuracy check was performed after defendant’s test and it was within the accuracy tolerance; and (4) defendant’s test was conducted not more than 62 days after the last accuracy check.” Smith , 2015 IL App (1st) 122306, ¶ 33 (citing 20 Ill. Adm. Code 1286.200 (2009)). The Department’s standards also require that either a breath analysis technician or an “automated system” perform

accur acy tests “at least once every 62 days” and that the results are “recorded in the instrument’s

10logbook or internal memory, or[, if performed remotely,] in the central repository.” 20 Ill. Adm. Code 1286.230 (2014). ¶ 26 Defendant relies on Smith , 2015 IL App (1st) 122306, in support of his contention that the State failed to prove a necessar y element for admission of his B reathalyzer test result because neither the verified certification proffered by the State, nor any other evidence submitted at trial, showed that “the [ B reathalyzer] machine was certified as accurate.” ¶ 27 In Smith , the trial court allowed the State to introduce results of the defendant’s
B reathalyzer test which resulted in his conviction for driving with an alcohol concentration of
0.08 or more. Id. ¶¶ 21, 24. Specifically, the State introduced a notarized letter, signed by the “Keeper of Records” of the Illinois State Police Alcohol and Su bstance Testing Section, indicating “the Breathalyzer machine had been tested for accuracy on March 1, 2010, and April 1, 2010.” The accuracy tests attached to the letter provided numerical data but provided no interpretation of that data and failed to sta te whether the Breathalyzer machine passed the accuracy tests. Id. ¶ 4. ¶ 28 On appeal, the defendant argued that the trial court erred in allowing the result of his Breathalyzer test into evidence because the State failed to lay an adequate foundation for it s admission. Id. ¶ 29. He maintained “that although the electronic certificati on admitted into evidence state[d] that accuracy tests were conducted by the Illinois State Police on defendant’s Breathalyzer machine on March 1, 2010, and April 1, 2010 (within 62 days prior to and after de fendant’s test), it merely list[ed] the numerical results of the accuracy tests without providing any interpretation of those results.” Id. ¶ 40. He further noted that “[t]he electronic certification does not state that the Br eathalyzer machine passed the accuracy tests, performed within the

11accuracy tolerance, and was, in fact, accurate,” nor did anyone testify as to the accuracy of the Breathalyzer test results. Id. ¶ 29 The appellate court agreed with the defendant, noting that although “[t]he electronic certification admitted into evidence contains raw data from the accuracy tests *** it provides no interpretation of that data, without which we are unable to discern whether the Breathalyzer machine performed within the accuracy tolerance and was certified as accurate for those dates.” Id. ¶ 43. The court held: “In the absence of any evidence that defendant’s Breathalyzer machine was certified as accurate within 62 days prior to defendant’s test, as required by the applicable reg ulations, the State failed to establish a proper foundation for the admission of the Breathalyzer test result and the trial court erred by admitting it into evidence.” Id. ¶ 44. ¶ 30 We find this case distinguishable from Smith

. Here, the accuracy checks attached to the verified certification letter contain more than just raw data. In particular, the May 1, 2015, “Scheduled Certification”

— likely an automated system check that would be stored in the central repository rather than the breath analysis instrum ent logbook

— indicates a “dry gas target” of .079, and contains the following notations: “System Check: Passed” and “Test Status: Success.” Likewise, the June 5, 2015, certification performed by “Sheldon” indicates a “dry gas target” of .080 and also contains “System Check: Passed” and “Test Status: Success” notations. In addition, Trooper Sheldon certified the B reathalyzer machine as accurate in the logbook on June 5, 2015. ¶ 31 In sum, t he State’s exhibits, which were properly admitted into evidence, clearly show that the D epartment of Sta te Police regularly tested the Breathalyzer machine for accuracy and

12that it worked properly on the date defendant submitted to the test. As such, the results of defendant’ s B reathalyzer test were properly admitted. ¶ 32 CONCLUSION ¶ 33 For the foregoing reasons, we affirm the judgment of the circuit court of Will County. ¶ 34 Affirmed

.

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