No. 2--06--1279 Filed: 3-12-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Du Pa ge Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 06--DT--5045 ) IEVA AL ELI UNAITE, ) Honorab le ) John J. Kinsella, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE GROMETER d

elivere d the opini on of the c ourt: Defend ant, Ieva Aleliunaite, appeals from the denial of her petition to rescind the summary suspension of her driving privileges (see 625 IL CS 5/11--501.1 (West 2006)). She argues that the State failed to rebut her prima fa cie case, be cause

it did not move for admission of her Breathaly zer results. We reverse. BACKGROUND Defend ant's driving privileges were summarily suspended on the basi s that, after being

ar re st ed on Oc to be r 2 9, 20 06 , b y aVillage of Darien police office r for drivingunder the influence of alcohol ( DUI ), she submitted to te sting at the Villa ge of Wil lowbrook

polic e de partment that revealed a blood-alcohol concentra tion of 0.118. 625 IL CS 5/11--501(a)(1), (a)(2) (West 2006). OnNovember 7, 2006, defendant petitioned for a rescission

of the summary suspension. She also filed a mo tio n for d iscovery see king, inter ali a , "[c]opie s of any Alcohol I

nfluenc e Reports ,No. 2--06--1279

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Breathaly zer tickets, sworn reports, log book entries includ ing pre a nd post certifications and warni ngs to motori st." On November 29, 2006, defendant subpoenaed Chief Konstanty of the Willowbrookpolice department to appear at a hear ing on December 12, 2006, and produce "[t]he logbook containing Defendant[']s breath test re sults, date of arrest 10/29/06 at appx. 1:24 a.m." The parties appeared for a hea ring on December 12, 2006. Althoug h the State

produced the pages of the logb ook conta

ining de fendant's brea

th test re sults, the pag es produc ed did not c ontain the Breathaly

zer mach ine's po stcertif

ication r esults. Defense counsel asked for sanctions based on the State's failure to produce the entire logbook. Defense counsel argue d that, "since it's [his] burden to have to show whether the [Breathaly zer] machine

was in g ood worki

ng orde r or not, or whether there were malfunctions or not, the only way that [he] could certain ly do that is to inspect and examine the log book." He stated that "[t]he log book would hav e all of the pages and all of the entries, and these pages are not an appropriate substitution because they are not complete." The State argued that the subpoena was vag ue and stated: "Now that [defense counsel] has elaborated

on what he actually wants, it's our position that we should be allowed a date, a short date to actually g et the pages that indicate the subsequent certification of that machine." The trial court asked defense counsel: "Are y

ou prepared to proceed to hearing today or would y

ouseek the Court to enforce the subpoena tha t you served for the original law [ sic ] book and expanding to the informationthat

you are now saying you require, or request? " Defense counsel stated that he was notgoingto ask for a continuance. He stated that he was ready to go to a hearing but that he wanted "the subpoena to be enforced in a manner in which it protec ts [his] client 's rig

hts and sustains the right of the defendant to obtain this information at the time of a hearing." The trial court pa ssed the matt er for h earing.No. 2--06--1279

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When the parties reconvened, defense c ounsel argued that, because the State did not produc e the entire logbook, specifically the pages showing

the postcertification of the Breathaly zer machine, defendant was entitled to an "evidentiary presumption" that, had the State produced the logbook, the contents w ould have be en favorable to defendant. Defe nse counsel rested on the claimed presumption and the pl eading s. The trial court agreed with defe ndant and found that, based upon the State's failure to provide defendant with copies of the relevant pages of the log book, defendant met her burden of establishing a prima fa cie case for rescis sion. The court continued th e heari ng to the afternoon. When the hearing

resumed, the State informed the judge that it had provided defense counsel with copie s of the lo gbook e ntries fr om Septemb er 26, 20 06, to the current date. Defense counse l did not stipulate to the admission of the logbook into evidence. Thereafter , the State presented the testimony of Officer Skweres of the Da rien pol ice depa

rtment. Sk

weres te stified th at he wa s a trained Breathaly

zer operator and tha

t he per formed the Breathaly zer test on defendant at the Willowbrookpolice de

partmen t. He made

th e logbo ok entry for de fendant on October 29, 2006. According

to Skweres , Tim Miller , with the I llinois Stat

e Police, certifies the Breathaly zer machine

o n a regular

basis. The logbook contained entries dated September 26, 2006, a nd November 29, 2006, wh ic h c er ti fi ed th e a cc ur ac y o f the Bre athal yzer mach ine. T he ent ries c ontai ned Mi ller's signature. Defense counsel objec ted to the testimony as hearsa y and lacking

foundation. At the conclusion of the testimony, the trial c ourt found that the State sufficiently re

butted defenda nt's prima fa

cie case, and it denied the petition for rescission. Defenda nt timely appealed. ANA LYSISNo. 2--06--1279

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Defendant

contends that the trial court erred in deny ing her petition to rescind her summary suspension. According to defendant, the S tate fai l ed to rebut her prima fa cie case for rescission, because it did not mov e to have

the logb ook admitte d into evid ence. I n respons e, the Sta

te first contends that the appeal is moot because defendant has alrea dy served he

r summary suspension. In the alternative, the State argues that the trial court erred in ruling that defenda nt made a prima fa

cie case and, thus, the burden of proof never shifte d to the State to rebut the case. In r eply, defe ndant argues that

the State's challenge to the court' s ruling that defendant made a prima fa cie case is waived becaus e the S tate d id no t obj ect to the co urt's r ulin g or fil e a mot ion fo r a dir ected f indi ng. Section 11--501. 1(a) of

the I llinois Ve

hicle Code

(625 I LCS 5/ 11--501.1(a) (West 2006)) provides , in pertine

nt part, that "[a]ny

person w ho drives or is in actual physical control of a motor vehicle upon the public highwa

ys of this Stat e shall be deemed to have given conse nt *** to a chemical test

or tests of blood, breath, or urine for the purpose of determining the content of a lcohol *** in the person's blood

if arreste d *** for [DUI]." If a motorist su

bmits to tes ting tha

t revea ls a blood-alcohol level in

excess of the leg al limit, or

if he or s he refu ses to subm it to testing , his or her driving privileges will be summarily suspended by

the Secretary

of State upon the submission of a

swornreport of

the arresting

office r. 625 I LCS 5/1 1--501.1 (d), (e ) (West 200 6). A motor ist whose driving privileg es have b een summa rily suspended may re quest a judicial hearing at which to seek rescission of the suspension. 625 IL CS 5/2--118.1 (West 2006). A hearing on a

petition to rescind

a summary suspension is a civil proce eding in which the defendant bears th e burdenof proof. People v. Smith , 172 I ll. 2d 289, 2 94-95 (19 96); People v. Wiley , 333 Ill. App. 3d 861, 863 (2002). The defe ndant may raise

four issues for rescission: (1 ) whether the defe ndant wa s placed

under ar rest for an offe nse unde r section 11--501 ( 625 I LCSNo. 2--06--1279

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5/11--501 (West

2006)); (2) whether

the officer had reasonable g rounds to believe that the defendant

was driving

or in act ual phy sical co ntrol of a

motor veh

ic le while under the influe nce of a lcohol, another drug, or both; (3 ) whethe r the def endant r eceive d the statu

tory moto rist 's warning and refused to complete the tes t or tests; and (4) w heth er the test or

tests disclosed an alcohol

concen trati on of 0 .08 or more. 625 ILCS 5 /2--1 18.1( b)(1) t hrough (b)(4) (West 2006). When the results of a Breathaly

zer test are challenged, the defe ndant must make a prima fa cie casethat the te st results are not reliable. People v. Graney , 234 Ill. App. 3d 497, 503 (1992). A defendant's failure to establish a prima fa

cie case wa

rrantsa directed finding in favor of the State. People v. Hawkins , 221 Ill. App. 3d 460, 464 (1991). I f a defendant establishes a prima fa

cie case, then the b

urden shi fts to the State to rebut the prima fa cie case. Graney , 234 Ill. App. 3d at 503. As an initia

l mat ter, we d

ecline the State' s invitation to find th e case moot. The St ate maintains that the case is moot because defendant has complete d her sum ma ry suspension. Ho wever, because this issue is likely to rec ur and evade review due to the short duration of t h e action, we may c onsider the issue. See People v. Anderson , 167 Ill. App. 3d 308, 310 (1988 ) (applying exception to mootness doctrine to consider whether a judicial driving permit could be issued to a motorist whose driving privileges were summarily suspended). Next, we find that the Sta te waive d any

challen ge to the trial cou rt's ru ling tha t the Sta t e's failure to produc e the log book pag es conta

ining pos tcertif

ication information was suffici ent to establish a prima fa

cie case for rescission. After defe nse counsel choseto rest on the pleadings and his claimed presumption, the State did not move for a directed finding. Although it generally argued that defend ant's claim of a

presumpt ion did "n ot apply in this par

ticular c ase," i

t did not ch allen ge th e trial cou rt's ru

ling. To the contr ary , the State

told the tr

ial cour t that it " would be prepare d toNo. 2--06--1279

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offer testimony" on the issue of the subse quent certification. Even if the State had expressly moved for a directed finding, the State's dec ision to put on evi dence follow ing the denial of the motion would have resulted in waiver

of any cha

llenge to the ruling. See Heastie v. Robert s , 226 Ill. 2d 515, 544 (2007) ("In c ivil as in criminal cases, a defendant who elects to present evidence after his or her motion for directed verdict has be en d enied is deemed to have waived any right to a directed verdict"). Ac co rd in gl y, we conclude that the State waived any

challenge to the trial court's ruling that defendant established a prima fa cie case for rescission. It appears to us that the State could have avoided the problems it now fac es if it had simply asked the trial court to reconsider its ruling that defendant ha d made out a prima faci e case for rescission. Durin g the mor nin g of Dece mber 1 2, 200 6, def endan t brou ght to the tr ial co urt's attention the State 's fail

ure to co mply

with certain discovery

requests regarding

the logbook pages containing postcer

tification informa

tion. As a

result of this failure, the trial court ruled that an inference adverse to the State was warranted regar ding the contents of the logbook. Based on this inf erence, the trial court concluded that defendant made a prima fa cie case. That afternoon, prior to an evidentiary

hearing whose purpose wasto allow the State to rebut defenda nt's prima fa

cie case, the State tendered the requested documents to defenda nt. By this time, no further pr oceedings had occurred, and defendant had not relied on the earlier ruling in any way . Under such circumstances the State could have requested the trial court to reconsider its ru ling, as defendant now had the informat ion she re quested a

nd could h ave add

ressed i t on the me

rits. This brings us to the merits of defendant's appeal. Rely

ing on People v. Orth , 124 Ill. 2d 326 (1988), and Graney , defendant contends that, by failing to have the logbook admitted into evidence, the State did not rebut her prima fa cie case. A ltho ugh we generally reverse a trial court's ruling onNo. 2--06--1279

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a pe titi on to resc ind a def

endant' s summary

suspension only

if that fi nding is a gainst t he manif est weight of the evidence ( People v. Feddor , 355 I ll. App. 3d 325, 330 ( 2005)), o

ur revie w here is de

novo , as the facts are not in dispute and whether the State 's fail

ure to mov e to admit t

he logb ook into evidence warrants reversal of the trial court' s ruling is a question of law that depends on neither the credibi lity

of the witnesses nor the weight of the evidence ( see People v. Sven , 365 Ill. App. 3d 226, 231 (2006)). In Orth , the supreme court held: "[O]nce the motori st has m ade a prima fa cie case that the breath test result did not disclose a blood-alcohol concentration of 0.10 [now 0.08] or more, or that the te st result d

id notaccurately

reflect his blood-alcohol concentration, the State can only avoid rescission by moving for the admission of the test into evidence and lay ing the required foundation . Such

a foundation will include: (1) evidence that the tests were perf ormed ac cordi ng to the uniformstandard adopted by the Illinois Department of Public Health, (2) evide nce that the operator administering the t ests was certified by the Department of Public Health, (3) evidence that the machine used was a m odel app roved by the De partment of Health, was tested regularly for accuracy, and

was working properly , (4) evidence that the motorist was observed for the r equisite 2 0 minutes prior to the test and, during t

his period, the motori st did not smoke, regur

gitate , or drink , and (5)evidenc e that the result s app earing on the 'printo ut' sheet can

be identified as the tests given to the motorist." (Emphasis added.) Orth , 124 Ill. 2d at 340. In Graney , the def

endant w as char

ged wit h DUI and his dr

iver's license was summa

rily suspended. The defenda

nt petitioned to rescind the summary suspension, asserting that, inter ali a ,No. 2--06--1279

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the results of the Breathaly zer test did not indicate a blood-alcohol level of 0.10 or more. In support of his petition, the def

endant pr esented his own testimony, and that of his wif

e and two colleag ues, regarding his condition on the ev ening o f his arrest. At the close of the defendant' s case, the trial court denied the State's motion for a directed finding a nd co ncluded t

hat " the evide

nce tend ed to show that defendan t 'was not im paired from al cohol.' " Graney , 234 Ill. App. 3d at 500. Thereafter, the State presented the testimony of the arresting officer, who opined that the defendant was intoxicatedat the time

of the ar rest. Af ter the o fficer

testifie d, the Stat

e aga inmoved for

a directed findi ng. The tria

l court de nied th e motion and determined that the State was required to present evidence of the reliability of the Breathaly

zer results. Graney , 234 Ill. App. 3d at 501. During the testimony of

the Bre athaly

zer oper ator, the defenda nt object ed to the op erator 's reading from the decal that ce rtified that

the machine had been tested. Graney , 234 Ill. App. 3d at 501. The cour

t sustaine d the obje ction bec ause the State had

not had the

decal a dmitted int

o evidence. When the Sta

te moved t

o admit the decal, the logbook, and a printout into evidence, the defendant objected based on the State's failure to lay a proper foundation for the exhibits. The court found that, with a proper foundati on, the exhi

bits could be admitte d as busine ss recor ds. However, the court concluded that the State failed to lay a proper foundation. It rule d: "[T]he State f

ailed to p rese nt a sufficient foundation for the decal beca use it did not show what was done, it only

reflected that someone sig ned it, and the breathaly

zer operator did not have perso nal kn owled ge of what was shown on the decal. The court furthe r found that there

was not an ade quate fo

undation t

o admit th e logb ook as a business record because the operator did n ot kn ow the general proced ure or p racti ce for t he reco rding and storage o f informationcontained

in the logbook. In addition, the court noted that the opera tor could notNo. 2--06--1279

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testify as to who had

access to the logbook and theexact conditions under which the entries

were made. Finally, thecourt found that because the operator did not consult with the machi ne's operatingmanual and was not familiar with the order of the steps to administer the test, the State failed to prove that defendan t's breath test was performed ac cording to the procedure approved by the Departm ent [of Pu blic Health ]." Graney , 234 Ill. App. 3d at 502. Thereafter, the cour

t rescind ed the de fendant's suspe

nsion in light of the State's "fail[ure] to show that the brea th test wa s accur

ate and was adminis tered in compliance with th e st andards o f the Department [ of Public H ealth]." Graney , 234 Ill. App. 3d at 502. Onappeal, the State argued that it di d not have the burden of proving the reliability and admissibil ity

of the B reatha

lyze r results

. Graney , 234 Ill . App . 3d a t 503. This c ourt d

isag reed . We held that, "[s]ince the trial court found that defendant established a prima fa cie case for rescission, the burden shifted to the State to co me forwa rd with ev

idence o f the re liability

of the br eath tes t result." Graney , 234 I ll. App. 3d at 505. B ecause

the State failed

to provide a sufficient foundation for the admissibility of

such evidence, we "affir

m[ed] the rescission based on the ina ccurac y of those results." Graney , 234 Ill. App. 3d at 507. Here, defend ant's c halle nge to the accuracy of the Breathaly

zer results was premised on the absence of any

evidence showing postcertification of the Breathaly

zer machine. Because the trial court determined that

defendant had made a prima fa cie case for

rescission, the burden shifted to the State to rebut that case. In an e ffort to do so, the State presented the testimony

of Offic er Skwer

es, who testified that he administered the Breatha lyz er test to defendant on October 29, 2006, and entered the results into the logbo ok. He a lso testified over objection that the logbook contained entries indicating that the machine was certified accurate on September 26 a nd November 29, 2006.No. 2--06--1279

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However, the State made no attempt to introduce the logbook into evidence. Thus, as the operator in Graney was unable to read the certification on the dec a l, Skwer es here was unable to relate the certification

from the logbook. Accordingly, the State did not rebut defenda nt's prima fa

cie case, and the trial court should have granted defe ndant's petition. CONCLUSIO

N For the reasons stated, the judgment of the c ircuit court of Du Page County is reversed. Reversed. O'MALL EY and CALL

UM, JJ., concur.