                                  Illinois Official Reports

                                          Appellate Court



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




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


District & No.               Second District
                             Docket No. 2-12-0990


Filed                        May 22, 2014


Held                         In a prosecution for driving under the influence of alcohol where the
(Note: This syllabus         trial court found defendant guilty of two counts, one for driving while
constitutes no part of the   under the influence of alcohol and one for driving with an alcohol
opinion of the court but     concentration of 0.08 or more, and after overruling defendant’s
has been prepared by the     objection to the admission of testimony showing that the Breathalyzer
Reporter of Decisions        had been certified as accurate, merged the count for driving while
for the convenience of       under the influence into the second count and sentenced defendant to
the reader.)
                             probation for the count of driving with an alcohol concentration of
                             0.08 or more, the appellate court reversed that count on the ground that
                             the testimony as to the accuracy of the Breathalyzer was improperly
                             admitted without a proper foundation, reinstated the conviction for
                             driving while under the influence of alcohol, remanded the cause with
                             directions to resentence defendant on that count, directed the trial
                             court to correct the mittimus to show a DNA analysis fee of $250,
                             rather than $200, and granted the State leave to retry defendant on the
                             reversed conviction.



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


Judgment                     Affirmed as modified in part and reversed in part; cause remanded.
     Counsel on               Thomas A. Lilien and Josette Skelnik, both of State Appellate
     Appeal                   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 concurred in the judgment
                              and opinion.

                                                OPINION

¶1          Following a bench trial, defendant, Douglas R. Harris, 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 influence of alcohol (DUI) (625 ILCS
       5/11-501(a)(1), (a)(2) (West 2008)). The trial court 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 logbook 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 maintains 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 5/11-401(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 brought under section 11-501(a)(1) of the Code
       (625 ILCS 5/11-501(a)(1) (West 2008)), which provides that a person shall not drive or be in
       actual physical control of a vehicle while “the alcohol concentration in the person’s blood or
       breath is 0.08 or more.” The charges stemmed from an incident that occurred on April 21,
       2008.
¶4         The relevant evidence at defendant’s bench trial established the following. Shortly after
       midnight on April 21, 2008, Boone County police officer Edward Krieger was on patrol,
       heading south on North State Street, when he saw brake lights activate on a car ahead of him
       and then saw “a spinning light and taillight spinning.” Krieger testified that, as he sped up to
       investigate, the car continued to travel south. Krieger then observed in the northbound lane a
       man, later identified as Simon Montez, picking up a motorcycle. Montez told him that the car

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     had hit him and that he was okay. Krieger called for 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 lights. Krieger activated his emergency lights,
     and the car pulled over. Krieger testified that there 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. At that point, Belvidere police officer
     Robert Kozlowski arrived on the scene.
¶6       Kozlowski testified that he spoke with defendant and also noticed that defendant’s eyes
     were red and watery and that there was an odor of alcohol emanating from defendant’s mouth.
     When Kozlowski asked defendant whether he had had any 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 him 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. Kozlowski first instructed defendant on how to
     perform the walk-and-turn test. Kozlowski told defendant to stand heel-to-toe on a yellow
     parking line with his hands at his sides and to remain in that position as Kozlowski
     demonstrated the test. As Kozlowski attempted to demonstrate the test, defendant started
     walking, so Kozlowski told defendant to get back into 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 front 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 next demonstrated the one-leg-stand test,
     instructing defendant to stand with his hands at his 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 observed 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 next identified People’s Exhibit No. 5 as a copy
     of the log results from the instrument used to perform the breath test. After Kozlowski
     identified People’s Exhibit No. 5, the following occurred:
                  “Q. ***
                  Do you see a test prior to the defendant’s test, which is a certification test?
                  A. Yes.
                  Q. What date was that test ran [sic]?
                  [DEFENSE COUNSEL]: I object, Your Honor, it’s hearsay.
                  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–kept in the regular course of
             business for the Belvidere Police Department?
                  A. Yes.
                  Q. Are they kept near the machine?
                  A. Yes.

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    Q. Do you see where the test was prior to the defendant’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. This 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 defendant’s test, so in March of 2008
was the machine–was the instrument working correctly 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 Brezinski.
    [DEFENSE COUNSEL]: Continuing objection.
    THE COURT: It’s continuously overruled.
                                      ***
    Q. Now, looking at the accuracy check after the defendant’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 continuing objection as to the
admissibility of this and I’m continuing to overrule 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 between the defendant’s arrest date
and the next accuracy check date?
    A. No.
    Q. And how do you know that none of them were called?
    A. It would have been documented on this form.
    Q. Is it possible for this instrument to fix itself at all?

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                    [DEFENSE COUNSEL]: Objection, Your Honor.
                    THE COURT: Overruled.
                    A. At this time what they would do is send a trooper 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 notified 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 the breath test as instructed by Kozlowski.
       Over an objection that was overruled, Kozlowski testified that the results showed a blood
       alcohol level of 0.099. Kozlowski had made more than 150 arrests for DUI and had observed
       intoxicated people approximately 10,000 times. In his opinion, defendant was under the
       influence of alcohol and not fit to drive.
¶ 10        Montez testified that, prior to the incident, he had been traveling south on his motorcycle.
       He had a confrontation at a stoplight with defendant. According to Montez, with Montez in the
       left lane and defendant in the right lane, defendant swerved his car and cut Montez off.
       Defendant drove away after hitting Montez. Montez was charged with DUI.
¶ 11        For the defense, defendant’s wife, Jeana Harris, testified that she and defendant’s brother
       were in the car with defendant at the time of the incident. 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 ground 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 police. According to defendant, he stopped his car
       to call the police. He did not see the police car behind 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 concerning the DUI charges:
                    “As to the DUI there is a clear–there are two charges, an (A)(1) and an (A)(2).
                There is a clear BAC over .08. I granted the admission 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 vehicle, 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 Defendant’s objections
       to the admission of the breathalyzer results.” Defendant 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 reasonable doubt of failing to stop after having

                                                    -5-
       an accident involving personal injury. After counsel made her argument, the following
       transpired:
                   “THE COURT: Obviously, that’s the more contested one, but there’s also–you
               want to speak to some of your other paragraphs about 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 preserving that, Your Honor.”
                   THE COURT: All right. All right, thank you.”
       Thereafter, the trial court heard a response from the State on defendant’s
       sufficiency-of-the-evidence argument and ultimately denied defendant’s motion.
¶ 14       Following a sentencing hearing, the trial court sentenced defendant to 30 months’
       probation for failure to stop after having an accident 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 various fees and fines, including a $250
       DNA fee, but the written judgment order shows the amount 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, because he did not object at trial based on a lack
       of foundation or raise any specific objection in his amended posttrial motion. In the alternative,
       the State argues that the logbook was properly admitted.
¶ 18       We first consider whether defendant’s argument has been forfeited. To preserve an issue
       for appellate review, a defendant must object at trial and raise the issue in a posttrial motion.
       People v. Coleman, 227 Ill. 2d 426, 433 (2008). Illinois Rule of Evidence 103(a)(1) (eff. Jan. 1,
       2011) states: “(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which
       admits or excludes evidence unless a substantial right of the party is affected, and (1)
       Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike
       appears of record, stating the specific ground of objection, 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 about the date of the “certification test,”
       defense counsel objected, arguing that “it’s hearsay.” As defendant points out, instrument logs
       certifying the accuracy of Breathalyzer machines are 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-records exception to the hearsay rule (725
       ILCS 5/115-5(a) (West 2010)). Russell, 385 Ill. App. 3d at 475. Here, when counsel objected,
       the court agreed that the logbook evidence was hearsay 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, counsel again objected. This time counsel
       added, “This isn’t a business record because this is an item that is kept by the police department

                                                    -6-
       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 Kozlowski’s testimony, indicating a
       objection.” The court noted that counsel was “making a continuing objection as to the
       admissibility of this and I’m continuing to overrule 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 objections 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 have stated specifically during trial or in her
       motion that her objection was based on a lack of foundation, 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 trial court clearly had an opportunity to review
       the same essential claim that was later raised on appeal”).
¶ 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 trial 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, fanciful, unreasonable, or where no reasonable
       person would take the view adopted by the trial court. [Citation.]” People v. Caffey, 205 Ill.
¶ 21   2d 52, 89 (2001).
            As noted above, instrument logs certifying the accuracy of Breathalyzer machines are
       hearsay, as they rely on statements by an out-of-court declarant (here, Brezinski) to prove the
       truth of the matter asserted (here, that the machine 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 foundation. 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 business 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, transaction, 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 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 thereafter.
                   All other circumstances of the making of such writing 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 admissibility.” 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, 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 business 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

                                                       -7-
       The foundation for a business record may be established through the testimony of any person
       familiar with the business and its mode of operation; 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 regarding 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 business and at the time of the transaction or
       within a reasonable time thereafter. We agree. A review of Kozlowski’s testimony makes
       clear that, although he testified that the record was 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 thereafter.” (Emphasis added.) 725 ILCS
       5/115-5(a) (West 2010). Although the State argues that Kozlowski, as a member of the
       Belvidere police department, had the requisite personal 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.” Kozlowski 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 Brezinski documented and signed the logbook
       “at the time of such [certification] or within a reasonable time thereafter.” Id. Without this
       testimony, the State failed to lay the necessary foundation. Accordingly, we find that the trial
       court abused its discretion in admitting the logbook into evidence. Further, without evidence
       of the accuracy of the Breathalyzer machine, the results 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 on count II, we note that the trial court
       also found defendant guilty on count I. Defendant acknowledges 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 judge’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 defendant’s admission to drinking, the impact
       with Montez, the odor of alcohol, and other signs of 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 to conclude otherwise. See People v. Burton,
       2012 IL App (2d) 110769, ¶ 15 (on review after a bench trial, we presume that the trial court
       considered only admissible evidence and, unless the record affirmatively rebuts that
       presumption, any error related to inadmissible evidence is not reversible). Accordingly, we
       reinstate defendant’s conviction on count I.

       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.”

                                                      -8-
¶ 24       Although we are not granting defendant’s request for a new trial on both counts (as we
       are instead reversing one conviction and reinstating the other) and do not see any benefit to
       be gained from a new trial on count II, we note that, 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 entitled to a new sentencing hearing on
       remand after the supreme court reversed his conviction of knowing murder and the State
       declined a retrial).
¶ 25       Finally, the State asks that we correct the mittimus 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 committed 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 ILCS 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 trial court orally ordered a
       $250 DNA analysis fee, the written judgment reflects a $200 DNA analysis fee. Accordingly,
       we modify the mittimus to reflect a $250 DNA analysis fee.

¶ 26                                         III. CONCLUSION
¶ 27        For the reasons stated, we affirm defendant’s conviction 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, the State may retry defendant on count II
       if it desires. If the State chooses to forgo a retrial, 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.




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