Illinois Official Reports 

Appellate Court

People v. Torruella, 2015 IL App (2d) 141001

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

ALEJANDRO TORRUELLA, Defendant-Appellant.

District & No. Second District

Docket No. 2-14-1001

Filed August 17, 2015

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 12-DT-1196; 

the Hon. Bruce R. Kelsey, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Steve Klein, of Chicago, for appellant.

Robert B. Berlin, State’s Attorney, of Wheaton (Lisa A. Hoffman and 

Colin F. Diamond, Assistant State’s Attorneys, of counsel), for the 

People.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Presiding Justice Schostok and Justice Spence concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 Following a bench trial, defendant, Alejandro Torruella, was convicted of driving while 

the alcohol concentration in his breath was 0.08 or more (625 ILCS 5/11-501(a)(1) (West 

2012)). Defendant appeals, arguing that the trial court erred in admitting as a business record 

a report of the accuracy checks performed on the instrument used to administer his breath 

test. He also challenges the sufficiency of the evidence. For the following reasons, we affirm. 

¶ 2 I. BACKGROUND 

¶ 3 On April 8, 2012, at approximately 4:29 a.m., Officer Jonathan Joyce of the Oakbrook 

Terrace police department conducted a traffic stop of defendant’s vehicle. After Joyce had 

defendant perform field sobriety tests, he placed defendant under arrest for DUI. At the 

police station, a breath test revealed that defendant’s breath alcohol concentration (BAC) was 

0.09. Defendant was charged with driving with a BAC of 0.08 or more (625 ILCS 

5/11-501(a)(1) (West 2012)), driving under the influence of alcohol (DUI) (625 ILCS 

5/11-501(a)(2) (West 2012)), and speeding (625 ILCS 5/11-601(b) (West 2012)). 

¶ 4 Prior to trial, pursuant to Illinois Rule of Evidence 902(11) (eff. Jan. 1, 2011), the State 

filed a notice of intent to introduce as business records the accuracy checks that had been 

performed on the breath test instrument used on defendant. The State also filed a motion 

in limine seeking admission of the accuracy checks as business records under Illinois Rule of 

Evidence 803(6) (eff. Apr. 26, 2012). The motion indicated that the instrument was “an Intox 

EC/IR, serial number 04268,” and that it was regularly tested for accuracy. Attached to the 

motion was a verified certification dated April 16, 2014, signed by Nancy Easum, the keeper 

of records for the alcohol-and-substance-testing section of the Illinois State Police Academy. 

The certification stated that “the attached accuracy checks regarding ECIR I, Serial Number 

04268 *** dated April 1 and May 1, 2012, are true and accurate copies of said documents 

and that the originals were made in the normal course of business.” It further stated that the 

accuracy checks were (1) made at or near the time of the occurrence of the matters set forth, 

(2) kept in the course of the regularly conducted activity, and (3) made by the regularly 

conducted activity as a regular practice. 

¶ 5 Attached to the certification was a document entitled “IntoxNet MIS Report” that 

indicated that it had been generated on April 16, 2014. The report listed accuracy checks 

performed on “EC/IR Serial # 04268” on April 1 and May 1, 2012. Data regarding each 

accuracy check was listed, including the date, time, and result of each check. 

¶ 6 On June 19, 2014, the trial court heard argument on the motion. Defendant argued that 

the “IntoxNet MIS Report” that was generated on April 16, 2014, was not “made at or near 

the time” of the accuracy checks, as Rules of Evidence 803(6) and 902(11) required, but was 

generated two years after the accuracy checks were performed. The court granted the State’s 

motion in limine, ruling that the accuracy checks, not the report generated in April 2014, 

were the business records that the State was seeking to admit. 

¶ 7 The matter proceeded to a bench trial. Joyce was the State’s only witness. He testified 

that he conducted a traffic stop of defendant’s vehicle after observing it weaving and 
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speeding at 50 miles per hour in a 35-mile-per-hour zone. After the officer approached the 

car, he observed defendant’s bloodshot and glassy eyes, slurred speech, and odor of alcohol. 

He performed a horizontal gaze nystagmus (HGN) test and noticed that defendant had “a 

slight sway.” He asked defendant to perform a “walk-and-turn test,” which defendant failed 

by missing several of the heel-to-toe steps by one to two inches, taking 10 steps instead of the 

requested 9 steps, and losing his balance at the end of the test. The officer next asked 

defendant to perform the “one-leg-stand test,” which defendant passed, although he “swayed 

from right to left for the entirety of the test.” Defendant then failed the “finger-to-nose test” 

by missing “with his left,” failing to return to the start position as instructed, and visibly 

swaying from right to left. Upon failing the tests, defendant stated that he had consumed four 

to five beers and a shot of liquor. Defendant further stated that he was driving home from 

Wrigleyville and had stopped for food prior to driving home. 

¶ 8 Joyce testified that he placed defendant under arrest and transported him to the police 

department, where he observed defendant for 20 minutes prior to administering a breath test. 

The officer was a “certified breath operator” and had administered over 200 breath tests. 

During the 20-minute observation period, defendant did not vomit, belch, regurgitate, or 

place anything in his mouth. Defendant voluntarily completed the breath test, and there were 

no machine malfunctions. The State moved to admit into evidence People’s Exhibit No. 2, 

which was Easum’s verified certification and the attached “IntoxNet MIS Report.”

¶ 9 Defense counsel renewed his objection that the “IntoxNet MIS Report” did not satisfy 

Rules of Evidence 803(6) and 902(11) in that it was not made at or near the time of the 

accuracy checks. Counsel also objected on the basis that the accuracy checks did not show 

compliance with section 1286.230 of the Illinois Administrative Code (20 Ill. Adm. Code 

1286.230 (2011)), which requires that during accuracy checks “[a]pproved evidentiary 

instruments must quantitate a reference sample within 10 percent of the reference sample’s 

value, as adjusted for environmental factors.” The court overruled the objections.

¶ 10 Joyce then testified that the breath test revealed a BAC of 0.09. He identified People’s 

Exhibit No. 3 as a printout of defendant’s test result showing a BAC of 0.09. The exhibit 

indicated that the test was performed at 5:18 a.m. He then identified People’s Exhibit No. 4 

as a copy of a page of the police department’s breath analysis log. The log contained an entry 

for defendant’s breath test on April 8, 2012, showing a result of 0.09. The officer also 

identified People’s Exhibit No. 5 as a printout of the automated accuracy check performed on 

April 1, 2012. He testified that the logbook was kept in the regular course of business and 

that accuracy check printouts were retained in the logbook in the regular course of business. 

The printout for the April 1, 2012, accuracy check indicated that the system check passed. He 

also identified People’s Exhibit No. 6 as a printout of the automated accuracy check 

performed on May 1, 2012, which also indicated that the system check passed. The court 

admitted People’s Exhibit Nos. 3, 4, 5, and 6 into evidence over defendant’s objections.

¶ 11 Joyce next testified that, based on his observations of defendant and on defendant’s 

performance during the field sobriety tests, he believed that defendant was under the 

influence of alcohol at the time of the traffic stop. The State then played the video from the 

officer’s squad car camera, which showed the traffic stop and the field sobriety tests. 

¶ 12 On cross-examination, Joyce testified that the BAC of 0.09 was defendant’s BAC at the 

time of the breath test at the police department, not at the time of his arrest at the scene. The 

officer did not ask defendant whether he had finished his last drink prior to driving his car. 
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Defense counsel elicited additional detail about defendant’s performance on the field sobriety 

tests, including that defendant had failed the “finger-to-nose test” in part by touching the 

underside of his nose with his left hand. 

¶ 13 The State rested and defendant called Mary McMurray to testify. Following questioning 

by defense counsel and voir dire by the State, the trial court certified McMurray as an expert 

in the areas of Intox EC/IR machines and in standardized field sobriety tests. McMurray 

testified that she had reviewed calibration records for the Intox EC/IR machine used for 

defendant’s breath test. The records revealed that on March 13, 2012, the machine was 

calibrated and an accuracy check was performed. According to McMurray, the calibration 

and accuracy check were problematic because they used the same dry gas standard. 

McMurray testified that, when the same dry gas standard is used for a calibration and an 

accuracy check, any mistake made during the calibration is difficult to detect. She testified 

that the machine should be calibrated “using a simulator” because “[h]uman breath has 

moisture.” She further testified that she had “nothing verifying *** the concentration” of the 

dry gas standard used to calibrate the instrument. If the machine is improperly calibrated, it 

might be inaccurate. She concluded that the March 13 calibration was “not a good 

calibration.”

¶ 14 McMurray further testified that performing a single breath test was “not scientific.” She 

explained that “[y]ou want reproducibility of results,” which ensured “accuracy” and 

“precision.” When McMurray began explaining that the “National Safety Council” advised 

using a minimum of two breath samples, the State objected, arguing that Illinois law did not 

require two samples. The trial court overruled the objection, but then asked defense counsel 

how the failure to perform two breath tests should factor into the court’s decision. After 

counsel was unable to cite a case discussing the failure to perform two breath tests as a 

factor, the court stated that it would accept McMurray’s testimony “for what it says” but that 

the testimony would not factor into its decision, because “Illinois does not recognize that a 

second test must be given.”

¶ 15 McMurray testified that, based on her review of the calibration records, the lack of 

information as to where defendant was on “an alcohol curve,” and her viewing of the squad 

car video, her opinion within a reasonable degree of scientific certainty was that there was 

not “adequate information” to conclude that defendant’s BAC was 0.08 or above. She 

testified that her opinion was based in part on the consideration that “[a]ll measurements 

have some uncertainty” and that “using the standard uncertainty” of “plus or minus [0.]01” 

would put defendant’s result at “[0.]08.” Defense counsel then asked McMurray how her 

viewing of the field sobriety tests on the squad car video factored into her opinion, and the 

trial court sustained the State’s objection. When defense counsel inquired as to the basis for 

the objection, the trial court asked counsel how McMurray would be able to offer expert 

testimony as to how defendant’s performance on the field sobriety tests affected his BAC. 

Counsel stated that “if somebody passes field sobriety tests, they may believe they’re 

unimpaired, therefore, under .08.” The trial court reiterated that the objection was sustained.

¶ 16 On cross-examination, McMurray testified that she had not viewed the Intox EC/IR 

machine used for defendant’s breath test. She also did not prepare a written report of any of 

her findings related to the case. She was paid a flat fee of $2,500 to testify and had never 

testified as an expert on behalf of the prosecution. 
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¶ 17 At the close of defendant’s case, defense counsel offered Defense Exhibit No. 4 into 

evidence, which was a copy of the March 13, 2012, calibration record that McMurray 

reviewed. The trial court sustained the State’s objection to the exhibit on the basis that it was 

irrelevant in light of the subsequent accuracy check performed on April 1, 2012. 

¶ 18 The trial court found defendant guilty of speeding and of driving with a BAC of 0.08 or 

more (625 ILCS 5/11-501(a)(1), 11-601(b) (West 2012)) but not guilty of DUI (625 ILCS 

5/11-501(a)(2) (West 2012)). Regarding the breath test, the court found that the “alcohol 

curve” referenced during McMurray’s testimony was “a non-factor” because there was no 

expert testimony on the issue. The court indicated that the State had no burden “to go through 

that alcohol curve.” The court also rejected defense counsel’s argument that defendant’s 

performance on the field sobriety tests should impact the result of the breath test.

¶ 19 Defendant filed a motion for a new trial, which was denied. The court sentenced 

defendant to five days in the Du Page County jail and two years of conditional discharge. 

Defendant timely appealed. 

¶ 20 II. ANALYSIS 

¶ 21 On appeal, defendant contends that the trial court erred in admitting the accuracy check 

records under the business records exception to the hearsay rule and in disregarding “the 

substance and weight” of portions of McMurray’s testimony. Defendant also challenges the 

sufficiency of the evidence, arguing that (1) the State failed to prove that his BAC was 0.08 

or greater when he was driving and that (2) the court failed to consider evidence of his 

sobriety when addressing the issue of his BAC. We address each argument in turn. 

¶ 22 A. Accuracy Check Records 

¶ 23 Defendant first argues that the accuracy check records reflected in People’s Exhibit No. 2 

did not meet the requirements of Rules of Evidence 803(6) and 902(11), which allow for the 

admission of business records as an exception to the hearsay rule. He contends that the 

records did not satisfy the rules’ requirement that they be “made at or near the time of” the 

recorded events, because the “IntoxNet MIS Report” attached to Easum’s certification was 

generated on April 16, 2014, two years after the accuracy checks were performed. 

¶ 24 Defendant improperly identifies our standard of review for this issue as de novo. He cites 

City of East Peoria v. Palmer, 2012 IL App (3d) 110904, ¶ 50, which indicates that “[a] 

court’s initial determination of whether a particular statement constitutes hearsay is a legal 

determination that we review de novo on appeal.” Here, the issue is not whether the accuracy 

checks were hearsay, but whether the State satisfied the foundational requirements of the 

business records exception to the hearsay rule, which we review for an abuse of discretion. 

See People v. Lombardi, 305 Ill. App. 3d 33, 42 (1999). A trial court abuses its discretion 

only when its ruling is arbitrary, fanciful, or unreasonable, or when no reasonable person 

would take the trial court’s view. People v. Anderson, 367 Ill. App. 3d 653, 664 (2006). 

¶ 25 Defendant has not shown that the trial court abused its discretion. Section 11-501.2 of the 

Illinois Vehicle Code provides that, in a prosecution for DUI, the result of an alcohol breath 

test is admissible if, among other requirements, the test was performed according to 

standards promulgated by the Department of State Police. 625 ILCS 5/11-501.2 (West 2012). 

The Department’s standards require that either a breath analysis technician or an “automated 
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system” perform “accuracy checks” of a breath test instrument at least once every 62 days. 

20 Ill. Adm. Code 1286.230 (2011). The accuracy check results “shall be recorded in the 

instrument’s logbook or internal memory, or in the central repository.” 20 Ill. Adm. Code 

1286.230 (2011). The Department’s standards define an “Accuracy Check Record” in 

pertinent part as “the data recorded in a logbook or stored in memory when an accuracy 

check is performed on an approved evidentiary instrument.” 20 Ill. Adm. Code 1286.10 

(2009). 

¶ 26 Although the “IntoxNet MIS Report” attached to Easum’s certification was generated on 

April 16, 2014, it listed the accuracy check records dated April 1 and May 1, 2012. In her 

certification, Easum indicated that the accuracy check records (not the “IntoxNet MIS 

Report”) “were made at or near the time *** of the matters set forth” in the records. The 

records themselves indicated that the accuracy checks performed on April 1 and May 1, 

2012, were automatic. That the “IntoxNet MIS Report” listing the accuracy check records 

was generated two years after the records were created did not render the records 

inadmissible as business records. See People v. Davis, 322 Ill. App. 3d 762, 766 (2001) 

(noting that the printing of a document on the morning of trial did not disqualify it as a 

business record, because the “requisite foundation pertains to the time when the business 

made the record, not when the business retrieved it”). Accordingly, the trial court did not

abuse its discretion in admitting People’s Exhibit No. 2.

¶ 27 Defendant’s reliance on People v. Harris, 2014 IL App (2d) 120990, is misplaced. In 

Harris, the court held that the State failed to lay an adequate foundation for the admission of 

a police department logbook under the business records exception to the hearsay rule, where 

the State’s witness never testified that the logbook entries were completed at or near the time 

that the accuracy checks were performed. Harris, 2014 IL App (2d) 120990, ¶ 22. Here, 

Easum’s certification indicated that the accuracy check records were “made at or near the 

time *** of the matters set forth.” Thus, the deficiency in Harris is not present here. 

¶ 28 Defendant also challenges the admission of the accuracy check records reflected in 

People’s Exhibit Nos. 5 and 6, which were the printouts of the automated accuracy checks 

performed on April 1 and May 1, 2012, which Joyce testified were retained in the police 

department’s logbook. Defendant notes that the exhibits “did not contain a certification like 

the records” in People’s Exhibit No. 2, and he asserts that the trial court erred in admitting 

them “despite the fact that the proper foundation was not laid.”

¶ 29 Defendant’s argument is undeveloped and lacks merit. Rule of Evidence 803(6) provides 

that the foundational requirements for the admission of business records can be established 

through the testimony of a custodian or other qualified witness, or by certification in 

compliance with Rule of Evidence 902(11). Ill. R. Evid. 803(6) (eff. Apr. 26, 2012). 

Although the State chose to rely on Easum’s certification to establish the foundation for 

People’s Exhibit No. 2, it was not required to do the same for People’s Exhibit Nos. 5 and 6. 

For those exhibits, it relied on Joyce’s testimony that the logbook and the printouts of the 

automated accuracy checks were retained in the regular course of business. Defendant has 

not articulated any way in which Joyce’s testimony was insufficient to lay a foundation for 

the admission of People’s Exhibit Nos. 5 and 6. Consequently, we conclude that the court did 

not abuse its discretion in admitting the exhibits. 

¶ 30 Defendant also challenges the admission of the accuracy check records on the basis that 

the records did not show that the breath test instrument satisfied the Department’s standard 
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that it “quantitate a reference sample within 10 percent of the reference sample’s value, as 

adjusted for environmental factors.” 20 Ill. Adm. Code 1286.230 (2011). This argument is 

unpersuasive. The accuracy check records contained in People’s Exhibit Nos. 2, 5, and 6 

include all of the required information, including the type of instrument, instrument serial 

number, test date, reference sample value, and readings of the two accuracy check tests. See 

20 Ill. Adm. Code 1286.10 (2009) (listing the requirements for accuracy check records). 

Joyce testified that the instrument passed the April 1 and May 1, 2012, accuracy checks, and 

People’s Exhibit Nos. 5 and 6 both stated, “Accuracy Check Passed.” This unrefuted 

evidence was sufficient to establish that the instrument satisfied the Department’s testing 

standards. 

¶ 31 B. McMurray’s Testimony

¶ 32 Defendant argues that the trial court “improperly disregarded the substance and weight” 

of portions of McMurray’s testimony. Some of defendant’s arguments focus on the weight 

that the trial court gave to portions of McMurray’s testimony, while others focus on the trial 

court’s evidentiary rulings with respect to aspects of McMurray’s testimony. To the extent 

that defendant challenges the trial court’s evidentiary rulings, we review the rulings for abuse 

of discretion. People v. Cortez, 361 Ill. App. 3d 456, 468 (2005). We also note that defendant 

inaccurately refers to McMurray throughout his brief as “Dr. McMurray.” McMurray 

testified that her highest level of education was a Bachelor of Science degree. 

¶ 33 According to defendant, the court “erred when weighing the value” of McMurray’s 

testimony regarding the improper calibration of the Intox EC/IR and the instrument’s 

“uncertainty error.” It is the province of the trier of fact to determine the weight and 

credibility to be given to expert testimony. People v. Romano, 139 Ill. App. 3d 999, 1006 

(1985). A reviewing court will not overturn a trial court’s judgment merely because it might 

have weighed the evidence differently. People v. Valentin, 347 Ill. App. 3d 946, 951 (2004). 

¶ 34 Here, there is no reason for this court to disturb the trial court’s decision to give little 

weight to McMurray’s testimony regarding the improper calibration of the Intox EC/IR and 

the instrument’s “uncertainty error.” As the trial court noted, the instrument passed accuracy 

checks on April 1 and May 1, 2012, which was all that the Department’s standards required 

to verify the instrument’s accuracy. Furthermore, McMurray’s testimony regarding the 

alleged improper calibration and the “uncertainty error” was difficult to understand and far 

from conclusive. For example, although McMurray testified that the same dry gas standard 

should not be used for calibration and accuracy checks, she further testified that she had 

“nothing verifying *** the concentration” of the dry gas standard used to calibrate and check 

the instrument. Thus, she had no basis to conclude that the instrument’s readings of the dry 

gas standard were inaccurate. McMurray also offered little to no explanation as to how she 

determined that the “standard uncertainty” of the instrument was “plus or minus [0.]01.” 

Even accepting her testimony regarding the uncertainty error, defendant’s breath test result 

still exceeded the statutory limit. 

¶ 35 Defendant also argues that the court erred in not allowing McMurray to testify as to how 

defendant’s performance on the field sobriety tests factored into her opinion that defendant’s 

BAC was not 0.08 or greater when he was driving. He contends that an expert witness “is 

allowed to rely on any factors relevant to the witness’[s] expertise and training that assists the 

witness in giving an expert opinion.”
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¶ 36 Defendant’s argument misses the mark. Although McMurray was qualified as an expert 

in the areas of Intox EC/IR machines and standardized field sobriety tests, this alone did not 

entitle her to opine on the accuracy of defendant’s breath test result in light of his 

performance on the field sobriety tests. Any expert testimony on this topic would have 

required defense counsel to lay a foundation showing that McMurray was qualified to offer 

such an opinion and that performance on field sobriety tests constituted facts or data 

“reasonably relied upon by experts in that particular field in forming opinions or inferences.” 

People v. Contreras, 246 Ill. App. 3d 502, 510 (1993). When the trial court sustained the 

State’s objection to this line of questioning, it asked defense counsel how McMurray would 

be able to offer expert testimony as to how defendant’s performance on the field sobriety 

tests affected his BAC. The thrust of the court’s inquiry concerned the foundation for 

McMurray’s testimony. Counsel responded that “if somebody passes field sobriety tests, they 

may believe they’re unimpaired, therefore, under .08.” This was not sufficient to lay a 

foundation for McMurray’s testimony, and nothing in McMurray’s testimony supplied the 

missing foundation. Consequently, the court did not abuse its discretion in sustaining the 

State’s objection. 

¶ 37 Defendant also argues that the trial court erred in “sustaining the State’s objection about 

Dr. McMurray’s testimony regarding the scientific validity of analyzing two breath samples.” 

The record contradicts defendant’s argument. The trial court overruled the State’s objection 

to this inquiry. After overruling the objection and allowing McMurray’s testimony to stand, 

the trial court indicated that it would accept McMurray’s testimony “for what it says” but that 

the testimony would not factor into its decision. The trial court’s decision to give the 

testimony no weight fell within its role as the trier of fact, and we will not reweigh the 

evidence or question the trial court’s credibility determinations.

¶ 38 C. Sufficiency of the Evidence 

¶ 39 We now turn to defendant’s arguments relating to the sufficiency of the evidence. When 

presented with a challenge to the sufficiency of the evidence, it is not the function of the 

reviewing court to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). Rather, 

“ ‘the relevant question is whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106 Ill. 2d at 261 (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The reviewing court should not substitute its 

judgment for that of the trier of fact, who is responsible for weighing the evidence, assessing 

the credibility of the witnesses, resolving conflicts in the evidence, and drawing reasonable 

inferences and conclusions from the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 

(2006). 

¶ 40 Defendant argues that (1) the State failed to prove that his BAC was 0.08 or greater when 

he was driving and that (2) the court failed to consider “evidence of his sobriety” when 

determining whether his BAC was 0.08 or greater when he was driving. 

¶ 41 Like defendant in this case, the defendant in Village of Bull Valley v. Winterpacht, 2012 

IL App (2d) 101192, was acquitted of DUI (625 ILCS 5/11-501(a)(2) (West 2008)) but 

convicted of driving with a BAC of 0.08 or greater (625 ILCS 5/11-501(a)(1) (West 2008)). 

On appeal, the defendant argued that the evidence was insufficient where her BAC was 0.182 

two hours after she was driving and there was no extrapolation testimony about what the 
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level was when she was driving. Winterpacht, 2012 IL App (2d) 101192, ¶¶ 1, 11. In 

affirming the conviction, this court explained the effect of the delay between the time the 

defendant was driving and the BAC test: 

“When there is a delay between when a defendant was driving and when blood is 

drawn, extrapolation evidence might be necessary when the blood alcohol level at the 

time of the test is below the statutory limit. In such a case, extrapolation evidence 

may be used to show that the blood alcohol level was above the limit when the 

defendant was driving. [Citation.] But no such evidence is necessary when the tested 

level is above the statutory limit. In such a case, when a reasonable amount of time 

elapses between when the defendant was driving and the test, extrapolation evidence 

is permissible but is not a foundational requirement. [Citation.] Matters of delay 

between driving and testing go to the weight of the evidence and must be viewed in 

light of the circumstances surrounding the arrest. [Citation.] Any concerns about the 

facts upon which the alcohol content is determined may be challenged on 

cross-examination.” Winterpacht, 2012 IL App (2d) 101192, ¶ 13. 

¶ 42 Here, defendant’s breath test was performed at 5:18 a.m. and revealed a BAC of 0.09. 

According to Joyce, he conducted the traffic stop of defendant at approximately 4:29 a.m. 

Because a reasonable amount of time passed between the time defendant was driving and the 

breath test, and because defendant’s BAC was over the statutory limit, the State was not 

required to present extrapolation evidence to meet its burden of proof. Rather, the delay 

between driving and testing went to the weight of the evidence and had to be considered in 

light of the circumstances surrounding defendant’s arrest. Thus, the trial court was correct 

when it stated that the State had no burden “to go through [the] alcohol curve.”

¶ 43 Defendant also contends that the trial court failed to consider “evidence of his sobriety” 

when determining whether his BAC was 0.08 or greater when he was driving. As “evidence 

of his sobriety,” defendant references “his sober driving,” “the lack of impairment on the 

field sobriety tests,” and his “clear speech.”

¶ 44 Defendant mischaracterizes the circumstances surrounding his arrest. Joyce testified that 

he conducted a traffic stop because, among other things, defendant was speeding at 50 miles 

per hour in a 35-mile-per-hour zone. After he approached defendant’s vehicle, he observed 

that defendant had bloodshot and glassy eyes, slurred speech, and an odor of alcohol. Joyce 

further testified that defendant failed the “walk-and-turn test” and the “finger-to-nose test.” 

Although defendant passed the “one-leg-stand test,” he “swayed from right to left for the 

entirety of the test.” Upon failing the tests, defendant admitted that he had consumed four to 

five beers and a shot of liquor. Defendant told the officer that he was driving home from 

Wrigleyville and had stopped for food prior to driving home. Although the trial court found 

that this evidence was insufficient to prove beyond a reasonable doubt that defendant had 

operated his vehicle while impaired, this does not mean that the evidence undermined the 

result of the breath test. See Winterpacht, 2012 IL App (2d) 101192, ¶ 15 (affirming a 

conviction of driving with prohibited BAC despite an acquittal of DUI); People v. Newman, 

163 Ill. App. 3d 865 (1987) (same). Viewing the delay between defendant’s driving and his 

breath test in light of the circumstances surrounding his arrest, and viewing all of the 

evidence in the light most favorable to the prosecution, we conclude that a rational trier of 

fact could have found that the State proved defendant’s guilt beyond a reasonable doubt. 
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¶ 45 III. CONCLUSION 

¶ 46 For the reasons stated, we affirm the judgment of the circuit court of Du Page County. As 

part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for 

this appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166, 

179 (1978). 

¶ 47 Affirmed.