## Illinois Official Reports

Appellate Court

People v. Harris , 2014 IL App (2d) 120990

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appe llee, v. DOUGLAS R. HARRIS, Defendant-Appellant.

District & No. Second District

Docket No. 2-12-0990

Filed May 22, 2014

Held
( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader. ) In a prosecution for driving under the influence of alcohol where the trial court found defendant guilty of two counts, o ne for driving while under the influence of alcohol and one for driving with an alcohol concentration of 0.08 or more, and after overruling defendant’s objection to the admission of testimony showing tha t the Breathalyzer had been certified as accurate, merged the count fo r driving while
under the influence into the second count and sente nced defendant to probation for the count of driving with an alcohol concentration of 0.08 or more, the appellate court reversed that cou nt on the ground that the testimony as to the accuracy of the Breathalyze r was improperly admitted without a proper foundation, reinstated th e conviction for driving while under the influence of alcohol, reman ded the cause with directions to resentence defendant on that count, d irected the trial court to correct the mittimus to show a DNA analysi s fee of $250, rather than $200, and granted the State leave to re try defendant on the reversed conviction.

Decision Under

Review Appeal from the Circuit Court of Boone County, Nos. 08-CF-154, 08-DT-114, the Hon. John H. Young, Judge, presiding

.

Judgment Affirmed as modified in part and reversed in part; cause remanded.- 2 -

Counsel on Appeal Thomas A. Lilien and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for the appellant.

Michelle J. Courier, State’s Attorney, of Belvidere (Lawrence M. Bauer and Joan M. Kripke, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE McLAREN delivered the judgment of the court , with opinion. Presiding Justice Burke and Justice Hudson concurre d in the judgment and opinion.

OPINION

¶ 1 Following a bench trial, defendant, Douglas R. Har ris, was found guilty of one count of failure to stop after having an accident involving personal injury (625 ILCS 5/11-401(a) (West 2008)) and two counts of driving under the influenc e of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2008)). The trial cour t sentenced him to concurrent probation terms of 30 and 24 months, respectively. Defendant timely appealed. Defendant argues that the trial court erred in allowing into evidence a logbo ok showing that the Breathalyzer machine
used to conduct a breath test on defendant had been certified as accurate, because the State failed to lay the proper foundation. The State main tains that the issue has been forfeited. In the alternative, the State argues that the logbook was properly admitted into evidence. The State also asks that we correct the mittimus to reflect a DNA analysis fee of $250, instead of $200. For the reasons that follow, we affirm as modified in part, reverse in part, and remand.

¶ 2 I. BACKGROUND ¶ 3 Defendant was charged, in case No. 08-CF-154, with failure to stop after having an

accident involving personal injury (625 ILCS 5/11-4 01(a) (West 2008)). Defendant was charged, in case No. 08-DT-114, with two counts of DUI. Count I was brought under section 11-501(a)(2) of the Illinois Vehicle Code (the Code ) (625 ILCS 5/11-501(a)(2) (West 2008)), which provides that a person shall not drive or be in actual physical control of a vehicle while “under the influence of alcohol.” Count II was brou ght under section 11-501(a)(1) of the Code (625 ILCS 5/11-501(a)(1) (West 2008)), which provid es that a person shall not drive or be in actual physical control of a vehicle while “the alc ohol concentration in the person’s blood or breath is 0.08 or more.” The charges stemmed from a n incident that occurred on April 21,
2008. ¶ 4 The relevant evidence at defendant’s bench trial e stablished the following. Shortly after

midnight on April 21, 2008, Boone County police off icer Edward Krieger was on patrol, heading south on North State Street, when he saw br ake lights activate on a car ahead of him and then saw “a spinning light and taillight spinni ng.” Krieger testified that, as he sped up to investigate, the car continued to travel south. Kri eger then observed in the northbound lane a man, later identified as Simon Montez, picking up a motorcycle. Montez told him that the car- 3 -

had hit him and that he was okay. Krieger called fo r a patrol officer to check on Montez and then proceeded to follow the car. ¶ 5 According to Krieger, as he was following the car, he observed it travel, without stopping,

through intersections controlled by blinking red li ghts. Krieger activated his emergency lights, and the car pulled over. Krieger testified that the re were three people in the vehicle, and he identified defendant as the driver. Krieger placed defendant in custody for leaving the scene of an accident. Krieger observed that defendant’s eyes were red and watery and that there was an odor of alcohol emanating from defendant’s mouth. A t that point, Belvidere police officer Robert Kozlowski arrived on the scene. ¶ 6 Kozlowski testified that he spoke with defendant a nd also noticed that defendant’s eyes

were red and watery and that there was an odor of a lcohol emanating from defendant’s mouth. When Kozlowski asked defendant whether he had had a ny alcohol to drink, defendant told him
that he had had one bottle of beer since breakfast. Defendant had had breakfast at Denny’s about 30 minutes earlier. Defendant further told hi m that he had had a couple of beers before
that. ¶ 7 Kozlowski further testified that he performed two sobriety tests on defendant–the

walk-and-turn test and the one-leg-stand test. Kozl owski first instructed defendant on how to perform the walk-and-turn test. Kozlowski told defe ndant to stand heel-to-toe on a yellow parking line with his hands at his sides and to rem ain in that position as Kozlowski demonstrated the test. As Kozlowski attempted to de monstrate the test, defendant started walking, so Kozlowski told defendant to get back in to the starting position; defendant lost his balance while doing so. Kozlowski demonstrated the test, telling defendant to walk heel-to-toe for nine steps, turn and pivot on the ball of his f ront foot, and walk nine steps back, while counting. When defendant performed the test, he did not touch his heel to his toe on every step; his feet were about six inches apart. Kozlowski nex t demonstrated the one-leg-stand test, instructing defendant to stand with his hands at hi s sides, raise one foot six inches off the ground, and count until Kozlowski told him to stop. Defendant performed the test as instructed. ¶ 8 Kozlowski further testified that, after he observe d defendant for 20 minutes, he

administered a breath test on defendant. Kozlowski identified People’s Exhibit No. 4 as a copy of the test-strip printout of the breath test. He n ext identified People’s Exhibit No. 5 as a copy of the log results from the instrument used to perf orm the breath test. After Kozlowski identified People’s Exhibit No. 5, the following oc curred: “Q. *** Do you see a test prior to the defendant’s test, w hich is a certification test?

A. Yes. Q. What date was that test ran [ sic ]? [DEFENSE COUNSEL]: I object, Your Honor, it’s hear say. THE COURT: It is. She can still get it in. I don’t think she’s asked those questions yet. He just said it was the log, so at this point it’s going to be sustained. Q. Okay. Are these reports–this log book record–ke pt in the regular course of business for the Belvidere Police Department?

A. Yes. Q. Are they kept near the machine?

A. Yes.- 4 - Q. Do you see where the test was prior to the defe ndant’s test? Is that a calibration test or an accuracy test?

A. Yes. Q. What date was that?

A. 3/26/08. [DEFENSE COUNSEL]: I still object, Your Honor. Thi s isn’t a business record because this is an item that is kept by the police department in anticipation of litigation.

THE COURT: Overruled. Q. Now, looking at the inspection prior to the def endant’s test, so in March of 2008 was the machine–was the instrument working correctl y that day, the March date? [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Again, go ahead and make your objection

. [DEFENSE COUNSEL]: On what basis is this for, was it working properly?

THE COURT: Overruled. A. Yes, it’s certified accurate by Trooper Brezins ki. [DEFENSE COUNSEL]: Continuing objection. THE COURT: It’s continuously overruled.

* * * Q. Now, looking at the accuracy check after the de fendant’s arrest, do you see that?

A. Yes. Q. What date was that? [DEFENSE COUNSEL]: Continuing objection.

A. 5/22/08. THE COURT: Excuse me, officer, she’s making a cont inuing objection as to the admissibility of this and I’m continuing to overrul e it. You can answer the question.

A. Certified accurate on 5/22/08. Q. And was the instrument working properly on that date?

A. Yes. Q. How do you know? A. It’s documented and signed by Trooper Brezinski

. Q. Again are the samples listed on there?

A. Yes. Q. Now, were there any maintenance officers called between the March accuracy
date and the defendant’s arrest date?

A. No. Q. Were there any maintenance officers called betw een the defendant’s arrest date and the next accuracy check date?

A. No. Q. And how do you know that none of them were call ed?

A. It would have been documented on this form. Q. Is it possible for this instrument to fix itsel f at all?- 5 - [DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Overruled. A. At this time what they would do is send a troop er out to calibrate it within every 60 days and I don’t believe that it would have that capability. Q. And if it was working properly on the accuracy check date in March and then working accurately again on–or working properly on the accuracy date after the defendant’s arrest, and the department was never no tified of any problems, is there any reason to think that the instrument was not working properly on the defendant’s arrest
date?

A. No.” ¶ 9 Kozlowski further testified that defendant took th e breath test as instructed by Kozlowski.

Over an objection that was overruled, Kozlowski tes tified that the results showed a blood alcohol level of 0.099. Kozlowski had made more tha n 150 arrests for DUI and had observed intoxicated people approximately 10,000 times. In h is opinion, defendant was under the influence of alcohol and not fit to drive. ¶ 10 Montez testified that, prior to the incident, he h ad been traveling south on his motorcycle.

He had a confrontation at a stoplight with defendan t. According to Montez, with Montez in the left lane and defendant in the right lane, defendan t swerved his car and cut Montez off. Defendant drove away after hitting Montez. Montez w as charged with DUI. ¶ 11 For the defense, defendant’s wife, Jeana Harris, t estified that she and defendant’s brother

were in the car with defendant at the time of the i ncident. Montez had been driving erratically; he was swerving his motorcycle and yelling at them. As defendant entered the left lane to turn left, he passed Montez. Harris heard the motorcycle engine rev up, and Montez hit the driver’s door of defendant’s car. Montez got up off the grou nd and came at the car, saying that he was going to kill them. Harris told defendant to drive away and that they would call the police. Harris tried to find her phone, but by the time she did, the police had already pulled the car over. Defendant testified that he did not stop for the flashing red traffic signals because he was trying to get a safe distance away to call the poli ce. According to defendant, he stopped his car to call the police. He did not see the police car b ehind him, because it did not have its lights on. Other testimony established that Montez had a blood alcohol level of 0.244. ¶ 12 The trial court found defendant guilty of failure to stop after having an accident involving

personal injury. The court stated as follows concer ning the DUI charges:

“As to the DUI there is a clear–there are two char ges, an (A)(1) and an (A)(2). There is a clear BAC over .08. I granted the admiss ion of the log and the stipulation over the defendant’s objection. I believe I’m still correct about those, so I would find him, based upon that, guilty of the (A)(1). Even if I’m incorrect about the objection being correct , I still think here we have an impact with a vehic le, we have admission, we have an odor, we have signs of impairment on the walk-and-turn and the one-legged stand, and I’d find him additionally guilty of the (A)(2) charge.” (Emphasis added.) ¶ 13 Defendant filed an amended motion for a new trial and a directed finding. In the motion,

defendant argued, inter alia , that “[t]he Court erred in failing to sustain Def endant’s objections to the admission of the breathalyzer results.” Defe ndant further stated that he “raises and preserves all arguments and objections made during trial.” At the hearing, defendant first argued that he was not proved guilty beyond a reaso nable doubt of failing to stop after having- 6 -

an accident involving personal injury. After counse l made her argument, the following transpired: “THE COURT: Obviously, that’s the more contested o ne, but there’s also–you want to speak to some of your other paragraphs abou t objection to admission of breathalyzer results? [DEFENSE COUNSEL]: Oh, Your Honor, I did object, I do not believe the proper foundation was made by the State, but I was just pr eserving that, Your Honor.” THE COURT: All right. All right, thank you.” Thereafter, the trial court heard a response from t he State on defendant’s sufficiency-of-the-evidence argument and ultimately denied defendant’s motion. ¶ 14 Following a sentencing hearing, the trial court se ntenced defendant to 30 months’

probation for failure to stop after having an accid ent involving personal injury and to 24 months’ probation for DUI on count II, to be served concurrently. The court merged count I as a lesser included offense. The court also imposed v arious fees and fines, including a $250 DNA fee, but the written judgment order shows the a mount to be $200. ¶ 15 Defendant timely appealed.

¶ 16 II. ANALYSIS ¶ 17 Defendant first argues that the trial court erred in admitting the logbook into evidence,

because the State failed to lay a proper foundation for its admission. In response, the State first contends that defendant has forfeited the issue, be cause he did not object at trial based on a lack of foundation or raise any specific objection in hi s amended posttrial motion. In the alternative, the State argues that the logbook was properly admi tted. ¶ 18 We first consider whether defendant’s argument has been forfeited. To preserve an issue

for appellate review, a defendant must object at tr ial and raise the issue in a posttrial motion. People v. Coleman , 227 Ill. 2d 426, 433 (2008). Illinois Rule of Evi dence 103(a)(1) (eff. Jan. 1, 2011) states: “(a) Effect of Erroneous Ruling. Erro r may not be predicated upon a ruling which admits or excludes evidence unless a substantial ri ght of the party is affected, and (1) Objection. In case the ruling is one admitting evid ence, a timely objection or motion to strike appears of record, stating the specific ground of o bjection, if the specific ground was not apparent from the context.” ¶ 19 A review of the record shows that, contrary to the State’s claim, defendant’s objection to

the logbook’s admission was properly preserved, as the specific ground alleged was apparent from the context of the proceedings. During trial, when the State first attempted to enter the logbook into evidence and questioned Kozlowski abou t the date of the “certification test,” defense counsel objected, arguing that “it’s hearsa y.” As defendant points out, instrument logs certifying the accuracy of Breathalyzer machines ar e hearsay. See People v. Russell , 385 Ill. App. 3d 468, 475 (2008). As such, the evidence may be admitted where the State lays a proper
foundation for its admission under the business-rec ords exception to the hearsay rule (725 ILCS 5/115-5(a) (West 2010)). Russell , 385 Ill. App. 3d at 475. Here, when counsel objec ted, the court agreed that the logbook evidence was hear say and sustained the objection. The State then immediately attempted to lay a business-record foundation for the exhibit. After the State asked a few more questions about the logbook, couns el again objected. This time counsel added, “This isn’t a business record because this i s an item that is kept by the police department- 7 -

in anticipation of litigation.” The court overruled the objection. When the State inquired the contents of the exhibit showing the accuracy of the machine, defense counsel objected, stating, “On what basis is this for, was it working properly?” That objection was overruled. Counsel objected several more times during Kozlowsk i’s testimony, indicating a objection.” The court noted that counsel was “makin g a continuing objection as to the admissibility of this and I’m continuing to overrul e it.” Counsel thereafter also objected to admission of defendant’s Breathalyzer test results. In the posttrial motion, defendant noted he “raises and preserves all arguments and objectio ns made during trial.” And, during the hearing, counsel specifically stated that she did “ not believe the proper foundation was made by the State.” Thus, although counsel might not hav e stated specifically during trial or in her motion that her objection was based on a lack of fo undation, that ground was apparent from context and both the prosecutor and the trial court understood the nature of the objection. Accordingly, we find that defendant did not forfeit the issue. See People v. Heider , 231 Ill. 2d 1, 18 (2008) (finding no forfeiture “where the tria l court clearly had an opportunity to review the same essential claim that was later raised on a ppeal”). ¶ 20 We turn now to the merits. Defendant contends that the trial court erred in admitting the

logbook into evidence, because the State failed to lay a proper foundation. “Evidentiary rulings are within the sound discretion of the tria l court and will not be reversed unless the trial court has abused that discretion. [Citations. ] An abuse of discretion will be found only where the trial court’s ruling is arbitrary, fancif ul, unreasonable, or where no reasonable person would take the view adopted by the trial cou rt. [Citation.]” People v. Caffey , 205 Ill. 2d 52, 89 (2001). ¶ 21 As noted above, instrument logs certifying the acc uracy of Breathalyzer machines are

hearsay, as they rely on statements by an out-of-co urt declarant (here, Brezinski) to prove the truth of the matter asserted (here, that the machin e was certified as accurate). See Russell

, 385 Ill. App. 3d at 475. Nevertheless, they may be admitted under the business-records exception to hearsay if the State lays a proper fou ndation. Id . Section 115-5(a) of the Code of Criminal Procedure of 1963 (Criminal Code) provides as follows with respect to the foundational requirements for the admission of busi ness records as evidence: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transact ion, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the r egular course of such business to
make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writ ing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibili ty.” 725 ILCS 5/115-5(a) (West 2010). 1

1 Illinois Rule of Evidence 803(6) (eff. Jan. 1, 2011 ) contains the same requirement that the entry
must be made at or near the time of the transaction : “(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, o r diagnoses, made at or near the time by, or from inf ormation transmitted by, a person with knowledge, i f kept in the course of a regularly conducted busines s activity, and if it was the regular practice of t hat business activity to make the memorandum, report, r ecord or data compilation, all as shown by the- 8 -

The foundation for a business record may be establi shed through the testimony of any person familiar with the business and its mode of operatio n; the witness need not be the author or custodian of the document, and the author need not be unavailable to testify. People v. Virgin

, 302 Ill. App. 3d 438, 449-50 (1998). ¶ 22 Defendant argues that Kozlowski’s testimony regard ing Brezinski’s certification of the

accuracy of the Breathalyzer machine was deficient because Kozlowski did not testify that the record was made in the regular course of busine ss and at the time of the transaction or within a reasonable time thereafter. We agree. A re view of Kozlowski’s testimony makes clear that, although he testified that the record w as kept in the regular course of business for the Belvidere police department, he never testified that “it was the regular course of such
business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time th ereafter .” (Emphasis added.) 725 ILCS 5/115-5(a) (West 2010). Although the State argues t hat Kozlowski, as a member of the Belvidere police department, had the requisite pers onal knowledge to testify about the certification of the Breathalyzer machine and about the logbook and was certified to use the Breathalyzer, this does not overcome the deficiency in his testimony. Kozlowski’s testimony that the machine was working properly was premised on the fact that the logbook was “documented and signed by Trooper Brezinski.” Kozlo wski testified that the logbook was kept in the regular course of business and that it was kept near the Breathalyzer machine; however, the State presented no testimony that Brez inski documented and signed the logbook “at the time of such [certification] or within a re asonable time thereafter.” Id . Without this testimony, the State failed to lay the necessary fo undation. Accordingly, we find that the trial court abused its discretion in admitting the logboo k into evidence. Further, without evidence of the accuracy of the Breathalyzer machine, the re sults of the Breathalyzer test were improperly relied on. Thus, we reverse defendant’s conviction on count II. ¶ 23 Although we are reversing defendant’s conviction o n count II, we note that the trial court

also found defendant guilty on count I. Defendant a cknowledges that he was found guilty on both counts, but argues that a reversal on count II warrants a new trial on both counts, because “it is impossible to say that the trial jud ge’s finding of guilt on both DUI counts was not influenced by the judge’s consideration of the defendant’s alleged BAC level of .099.” We disagree. In finding defendant guilty, the trial court specifically stated that, even if it was wrong concerning its ruling on the admissibility of the logbook as to count II, it was also finding defendant guilty on count I, based on defen dant’s admission to drinking, the impact with Montez, the odor of alcohol, and other signs o f impairment. Because the trial court made clear that it was finding defendant guilty on count I without taking into consideration the results of the Breathalyzer, we find no basis t o conclude otherwise. See People v. Burton

, 2012 IL App (2d) 110769, ¶ 15 (on review after a be nch trial, we presume that the trial court considered only admissible evidence and, unless the record affirmatively rebuts that presumption, any error related to inadmissible evid ence is not reversible). Accordingly, we reinstate defendant’s conviction on count I.

testimony of the custodian or other qualified witne ss, or by certification that complies with Rule 902(11), unless the source of information or the me thod or circumstances of preparation indicate lack of trustworthiness, but not including in criminal c ases medical records. The term ‘business’ as used i n this paragraph includes business, institution, asso ciation, profession, occupation, and calling of eve ry kind, whether or not conducted for profit.”- 9 - ¶ 24 Although we are not granting defendant’s request f or a new trial on both counts (as we are instead reversing one conviction and reinstatin g the other) and do not see any benefit to be gained from a new trial on count II, we note tha t, should the State wish to retry defendant on count II, a retrial would not subject defendant to double jeopardy, as the evidence was sufficient to convict him. See People v. Taylor , 76 Ill. 2d 289, 309 (1979). Should the State decide that it will not retry defendant on count II , defendant is entitled to a new sentencing hearing on count I. See People v. Alvine , 192 Ill. 2d 537 (2000) (the defendant, who was convicted of both knowing murder and felony murder and sentenced to death for knowing murder but not sentenced for felony murder, was ent itled to a new sentencing hearing on remand after the supreme court reversed his convict ion of knowing murder and the State declined a retrial). ¶ 25 Finally, the State asks that we correct the mittim us to reflect a DNA analysis fee of $250.

Defendant makes no objection. As the State alleges a voidness, it may raise this issue. See People v. Thompson , 209 Ill. 2d 19, 24-25 (2004). When defendant comm itted the offense, the DNA analysis fee was $200. See 730 ILCS 5/5-4-3 (j) (West 2008). However, when he was sentenced, the DNA analysis fee was $250. 730 I LCS 5/5-4-3(j) (West 2012). Defendant is required to pay the fee in effect at the time of sentencing, not at the time of the offense. People v. Dalton , 406 Ill. App. 3d 158, 163 (2010). Although the tr ial court orally ordered a $250 DNA analysis fee, the written judgment reflect s a $200 DNA analysis fee. Accordingly, we modify the mittimus to reflect a $250 DNA analys is fee.

¶ 26 III. CONCLUSION ¶ 27 For the reasons stated, we affirm defendant’s conv iction of DUI (count I) (625 ILCS

5/11-501(a)(2) (West 2008)), we reverse defendant’s conviction of DUI (count II) (625 ILCS 5/11-501(a)(1) (West 2008)), we modify the mittimus to reflect a $250 DNA analysis fee, and we remand for further proceedings. On remand, t he State may retry defendant on count II if it desires. If the State chooses to forgo a retr ial, we direct the trial court to conduct a new sentencing hearing as to defendant’s conviction on count I.

¶ 28 Affirmed as modified in part and reversed in part; cause remanded.