                       Illinois Official Reports

                               Appellate Court



                  People v. Eagletail, 2014 IL App (1st) 130252



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           LATESHIA EAGLETAIL, Defendant-Appellant.



District & No.    First District, Third Division
                  Docket No. 1-13-0252



Filed             December 23, 2014




Decision Under    Appeal from the Circuit Court of Cook County, Nos. TT-370-264,
Review            TT-370-265; the Hon. Michael R. Clancy, Judge, presiding.




Judgment          Affirmed.




Counsel on        Michael J. Pelletier and Kathleen Weck, both of State Appellate
Appeal            Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Mary P. Needman, and Morgan E. Muslin, Assistant State’s
                  Attorneys, of counsel), for the People.
     Panel                     JUSTICE HYMAN delivered the judgment of the court, with opinion.
                               Presiding Justice Pucinski and Justice Lavin concurred in the
                               judgment and opinion.


                                                 OPINION

¶1         Defendant Lateshia Eagletail, who was found guilty of two misdemeanor counts of driving
       under the influence of alcohol, contends the State failed to offer sufficient evidence that she
       was driving under the influence (DUI). She argues the trial court improperly allowed the State
       to introduce the results of her breath analysis through a printout (IntoxNet MIS report), where
       the State should have been required to offer the actual breath ticket. Eagletail further argues
       that in light of the unreliability of the field-sobriety tests and the fact that her breath analysis
       results should not have been admitted without the actual ticket, the officers’ observations fall
       short of proving she was driving under the influence.
¶2         We hold the trial court did not abuse its discretion in admitting the IntoxNet MIS report
       into evidence and that there was sufficient credible evidence to prove Eagletail guilty of DUI
       beyond a reasonable doubt. The Illinois Supreme Court in People v. Orth, 124 Ill. 2d 326
       (1988), did not say or imply that only the “actual printout” was admissible to show the results
       of the breath test.

¶3                                           BACKGROUND
¶4         The facts pertinent to this appeal are not in dispute.
¶5         At about 10:40 p.m. on July 21, 2010, Officers Lin and Loughney of the Chicago police
       department responded to a call of a traffic accident involving an unmarked police car. When
       the officers arrived, they saw Eagletail’s van and the unmarked police car bumper to bumper.
       Eagletail was seated in the driver’s seat. After running the van’s vehicle identification number,
       the officers confirmed Eagletail was the owner. In response to Officer Lin’s questioning about
       the cause of the accident, Eagletail told the officers she was having issues with her brakes and
       steering.
¶6         Officers Lin and Loughney are experienced officers trained in DUI detection. Lin and
       Loughney both testified that Eagletail’s breath smelled strongly of alcohol when they spoke
       with her. In response to Officer Loughney’s question about whether she had been drinking,
       Eagletail stated she had “two or three beers” and that the punch “may have been spiked.” The
       officers recovered an empty beer bottle from inside her van. Officer Loughney noted that
       Eagletail’s eyes were bloodshot and she was acting erratically and seemed agitated. Officer
       Loughney testified that in her professional opinion, Eagletail was under the influence of
       alcohol.
¶7         The officers transported Eagletail to the 8th district police station to undergo field-sobriety
       tests. Officer Ernst Mategrano, an expert in DUI and a certified breath tech operator,
       administered the field-sobriety tests in accordance with National Highway Traffic Safety
       Administration procedures. Officer Mategrano administered three field-sobriety tests to
       Eagletail: (1) the horizontal gaze nystagmus (HGN) test (a lateral or horizontal jerking when
       the eye gazes to the side), (2) the walk-and-turn test, and (3) the one-legged-stand test.

                                                    -2-
¶8          While administering the HGN test, Officer Mategrano held his pen at a 45-degree angle,
       six to eight inches from Eagletail at her shoulder level, while he observed her eye movement.
       Officer Mategrano instructed Eagletail to follow his pen with her eyes but not to move her
       head. Mategrano testified four factors indicate impairment in an HGN test; Eagletail exhibited
       six factors, plus vertical nystagmus. She showed horizontal nystagmus in both eyes, maximum
       deviation, and lack of smooth pursuit, all indicators of impairment.
¶9          Officer Mategrano instructed Eagletail on the steps of the walk-and-turn test and
       demonstrated to Eagletail to take nine heel-to-toe steps and turn, leaving her left foot in place,
       and take small steps until she reached nine steps. Eagletail began walking before Mategrano
       finished giving her the instructions. Eagletail stopped to steady herself throughout the test, did
       not touch heel-to-toe, and turned incorrectly. Eagletail displayed four out of nine clues of
       impairment; two clues suffice to indicate impairment.
¶ 10        Mategrano instructed Eagletail during the one-legged-stand test to raise one leg six inches
       from the ground with her hands at her side. During the test, Eagletail put her foot down three
       times, indicating impairment.
¶ 11        Following the administration of the field-sobriety tests, Officer Mategrano arrested
       Eagletail for DUI and asked her to submit to a Breathalyzer test. Eagletail agreed. Officer
       Mategrano is a certified breath tech operator and has performed 200 to 300 tests during his
       career. The instrument Mategrano used was certified for accuracy and underwent a
       self-diagnostic check before Eagletail’s breath test to ensure there was no alcohol in the
       instrument. Mategrano entered Eagletail’s information into the instrument, including her
       name, birth date and driver’s license number, as well his name as the breath tech operator and
       arresting officer. Mategrano instructed Eagletail to take a deep breath and blow into the
       machine. The machine captured Eagletail’s breath sample and produced a breath ticket
       showing her blood alcohol level was 0.170. The legal limit in Illinois is 0.08.
¶ 12        At the completion of the test, Mategrano recorded the details of Eagletail’s breath test in
       the breath analysis logbook, including her name, the date and time of the test, her recorded
       blood alcohol level, and his name as both the operator and arresting officer. The logbook
       ensures all pertinent information is recorded in the event any paperwork for the breath test is
       lost.
¶ 13        Eagletail was charged with two counts of driving under the influence, as well as failure to
       avoid an accident, transportation of alcohol, and operating an uninsured vehicle. At her bench
       trial, Officer Mategrano opined that Eagletail was under the influence of alcohol. He based this
       on the strong alcohol smell of Eagletail’s breath, the clues of impairment she showed during
       the field-sobriety tests, and her 0.170 blood alcohol level result on the breath test.
¶ 14        As proof of Eagletail’s intoxication, the State submitted a computer-generated ticket for
       Eagletail’s breath test from the Department of State Police–IntoxNet MIS report–and the
       logbook. The original breath ticket that physically printed out of the breath machine at the time
       of Eagletail’s breath test was lost. The IntoxNet MIS report was generated on June 20, 2012,
       and faxed to Officer Mategrano at the police station. All information entered into the breath
       test machine had been downloaded onto the Department of State Police’s computer once the
       machine’s memory was full. Officer Mategrano testified that the report was “a true and
       accurate representation of that breath ticket that was given on July 21, 2010.” The document
       contained all and identical information that is on the actual physical printout, including
       Eagletail’s name, birth date, and driver’s license number, as well as Officer Mategrano’s name

                                                   -3-
       as the breath tech operator and arresting officer and the 0.170 breath test result. Eagletail
       objected to the IntoxNet MIS report being entered into evidence.
¶ 15       The trial court found Eagletail guilty of the two misdemeanor counts of DUI and acquitted
       her of the remaining charges. The court sentenced Eagletail to 24 months’ supervision.

¶ 16                                              ANALYSIS
¶ 17                              Foundation Requirements of Breath Tests
¶ 18        Eagletail contends the trial court erred in admitting evidence of the results of her breath
       test. She claims that by failing to produce the actual printout from the breath test machine, the
       State failed to satisfy the five foundational requirements for admission of the breath test results
       as set forth in People v. Orth, 124 Ill. 2d 326, 340 (1988).
¶ 19        For admission of breath test results, the evidence must show: (1) the tests were performed
       according to the uniform standard adopted by the Illinois Department of Public Health; (2) the
       operator administering the tests was certified by the Department of Public Health; (3) the
       machine used was a model approved by the Department of Public Health, was tested regularly
       for accuracy, and was working properly; (4) the motorist was observed for the requisite 20
       minutes before the test and, during this period, the motorist did not smoke, regurgitate, or
       drink; and (5) the results appearing on the “printout” sheet can be identified as the tests given
       to the motorist. Orth, 124 Ill. 2d at 340; People v. Claudio, 371 Ill. App. 3d 1067, 1070 (2007)
       (foundation requirements are same in criminal trial). Both parties agree that the first four
       factors are satisfied; at issue is only the final factor. We review de novo whether the State’s
       introduction of Eagletail’s breath analysis results, via the IntoxNet MIS report, satisfies the
       fifth factor of Orth. In re C.N., 196 Ill. 2d 181, 203 (2001).
¶ 20        Eagletail argues that the fifth factor in Orth requires the State to produce the actual printed
       breath ticket from the machine. We disagree. Eagletail’s interpretation of what our supreme
       court intended is far too constricting. Orth does not state that it is necessary to produce the
       actual printout; it merely requires the production of evidence showing that the results of the
       breath test can be identified as those of the defendant. If the Illinois Supreme Court meant to
       only allow the “actual printout,” the fifth factor would have so required.
¶ 21        No court has analyzed the fifth factor from Orth and few have mentioned it. See People v.
       Clark, 178 Ill. App. 3d 848, 857 (1989) (fifth factor described as “test results were identified as
       those of defendant”); People v. Caruso, 201 Ill. App. 3d 930, 942 (1990) (“[t]he fifth factor
       mentioned in Orth requires evidence that the results on the printout sheet can be identified as
       the test given defendant,” but adds no further detail, saying it is “self-explanatory”).
¶ 22        The question is whether the State presented evidence establishing that the results of the
       breath test were in fact Eagletail’s. Officer Mategrano’s testimony connected the results on the
       IntoxNet MIS report to the results he observed on the night he administered the breath test to
       Eagletail. The report contains all the same identifiable information that is contained on the
       actual printout, including Eagletail’s name, birth date, and driver’s license number, as well as
       Officer Mategrano’s name as the breath tech operator and arresting officer and the 0.170 breath
       test result. Officer Mategrano’s testimony captured all the information of the actual breath
       analysis test and, accordingly, established Orth’s fifth factor.
¶ 23        During oral argument, Eagletail argued that because Orth was decided before today’s
       modern technology, it should be interpreted as requiring only the original paper report. If at all

                                                    -4-
       possible, existing law should follow technology’s advancements. See State v. Brereton, 2013
       WI 17, ¶ 51, 345 Wis. 2d 563, 826 N.W.2d 369 (court refused to read language in warrant as
       binding law enforcement to specific GPS technology based on type of GPS technology used in
       previous case, finding “the officers used technology reasonably contemplated under the
       warrant, whereby the officers were able to increase their efficiency, at no demonstrated,
       unreasonable cost to the Fourth Amendment interests of [defendant]”).When old ways of
       doing things are abandoned, the law should be receptive to adopting to the new technology as
       long as the law can be read to prescribe it. Otherwise, the law becomes a constant obstacle to
       technological progress. Here, the fifth factor can be interpreted to encompass the computer
       record.

¶ 24                  Admissibility of the IntoxNet MIS Report as a Business Record
¶ 25        Eagletail next contends that even if the IntoxNet MIS report properly satisfied the fifth
       factor of Orth, the State failed to show the report fulfilled the statutory requirements to qualify
       as a business record and, therefore, should not have been admitted into evidence. Eagletail
       claims the State introduced the report solely on Officer Mategrano’s testimony and he “lacked
       any familiarity with the manner in which the document was prepared.”
¶ 26        A trial judge’s evidentiary rulings, including the determination of whether or not business
       records are admissible, will not be disturbed on review absent an abuse of discretion. People v.
       Morrow, 256 Ill. App. 3d 392, 396 (1993). As a reviewing court, we only will reverse when the
       ruling was “arbitrary, fanciful or unreasonable” or “no reasonable [person] would take the
       view adopted by the trial court.” (Internal quotation marks omitted.) People v. Donoho, 204 Ill.
       2d 159, 182 (2003).
¶ 27        The IntoxNet MIS report was entered into evidence under the business records exception to
       the hearsay rule. Breath test tickets and supporting documents are hearsay but admissible
       under the business record exception. People v. Russell, 385 Ill. App. 3d 468, 475 (2008).
       Illinois Rule of Evidence 803(6) provides that “records of regularly conducted activity” are not
       considered inadmissible hearsay where they constitute:
                “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 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.” Ill. R. Evid. 803(6) (eff. Jan. 1, 2011).
¶ 28        The party seeking the document’s admission into evidence as a business record must lay an
       adequate foundation by showing the record was (1) a memorandum or record of the act, (2)
       made in the regular course of the business, and (3) made at the time of the act or within a
       reasonable time after. Morrow, 256 Ill. App. 3d at 397.
¶ 29        Through Officer Mategrano’s testimony, the State satisfied the business records
       foundational requirements for admissibility of the IntoxNet MIS report. Mategrano testified
       the report was a record of Eagletail’s breath test results and that the record was made in the


                                                    -5-
       regular course of business. He testified the report accurately depicted Eagletail’s results as he
       recorded them on July 21, 2010. While the report was “generated” almost two years after the
       breath test had been administered, Officer Mategrano’s testimony confirmed that the
       information in the report was stored as soon as it was entered into the breath test machine and
       then transmitted and stored remotely at the Department of State Police when the machine’s
       memory became full.
¶ 30       We disagree with Eagletail that Officer Mategrano’s testimony could not satisfy the
       foundational requirements because he lacked sufficient knowledge of the manner in which the
       document was prepared. Generally, the maker of the record need not testify. People v.
       Hutchison, 2013 IL App (1st) 102332, ¶ 21. Anyone familiar with the records and the business
       can testify to provide the necessary foundational testimony. Id. (“Section 11-501.4 [of the
       Vehicle Code] is clear in its requirements and the statute makes no mention of requiring
       familiarity with the actual making of the record.”); see 725 ILCS 5/115-5(a) (West 2010) (“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.” (Emphasis added.)).
¶ 31       Officer Mategrano was qualified to provide the foundational requirements necessary to
       admit the report into evidence. He knew that once entered into the machine, the information
       was stored and then transferred to the Department of State Police. He performed hundreds of
       tests over the years and was obviously familiar with how the DUI unit’s business operations
       functioned.
¶ 32       Eagletail relies on People v. Virgin, 302 Ill. App. 3d 438, 449-50 (1998), to support her
       position. In Virgin, the court found the State failed to lay a proper foundation for the admission
       of an animal control receipt into evidence under the business records exception because the
       State did not present any testimony that the receipt was made in the regular course of business,
       that receipts were made in the regular course of business, or that the receipt was made at or
       near the time of the transaction being recorded. Id. Unlike in Virgin, Officer Mategrano’s
       testimony established sufficient foundation to establish the report was prepared in the regular
       course of business. Mategrano testified that he had performed hundreds of breath tests with the
       machine used to administer Eagletail’s test. He knew that the information he entered into the
       machine was stored until the machine’s memory was full and then it was transferred to a
       computer at the Department of State Police.

¶ 33                                    Sufficiency of the Evidence
¶ 34       Eagletail next argues that the evidence presented at trial was insufficient to support finding
       her guilty of driving under the influence under section 11-501(a)(2) of the Illinois Vehicle
       Code (Code) (625 ILCS 5/11-501(a)(2) (West 2010)). Eagletail claims the State failed to
       present sufficient evidence of impaired driving to prove the charge beyond a reasonable doubt.
¶ 35       When a defendant challenges the sufficiency of the evidence to sustain his or her
       conviction, as a reviewing court we must look at all the evidence in the light most favorable to
       the State to determine if any rational trier of fact could have found the essential elements of the
       crime beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). The trier
       of fact assesses the credibility of the witnesses, weighs the testimony, and draws reasonable
       inferences from the evidence. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). We will not set aside
       a criminal conviction unless the evidence appears so improbable or unsatisfactory that it

                                                    -6-
       creates a reasonable doubt as to the defendant’s guilt. People v. Cox, 195 Ill. 2d 378, 387
       (2001).
¶ 36       To sustain a conviction under section 11-501(a)(2) of the Code, the State must prove
       beyond a reasonable doubt that the defendant was (1) in actual physical control of a vehicle and
       (2) under the influence of alcohol at the time. 625 ILCS 5/11-501(a)(2) (West 2010); People v.
       Diaz, 377 Ill. App. 3d 339, 344 (2007). Also, the State must prove the defendant’s ability to
       operate a motor vehicle was impaired by the consumption of alcohol. Diaz, 377 Ill. App. 3d at
       344. The State can use circumstantial evidence to prove a defendant guilty of DUI. Id. at 345.
¶ 37       The trier of fact could reasonably infer, based on the evidence, that Eagletail was driving
       the motor vehicle. When Officers Lin and Loughney arrived at the scene they observed
       Eagletail alone in a van that belonged to her. When the officers asked Eagletail what happened
       in regard to the van hitting the unmarked police car, she responded that there was an issue with
       her brakes and steering. All these observations provide strong circumstantial evidence that
       Eagletail was driving.
¶ 38       Eagletail contends the State presented insufficient evidence to prove she was intoxicated
       beyond a reasonable doubt. Nevertheless, the credible testimony of the arresting officer by
       itself can sustain a conviction of driving under the influence. People v. Morris, 2014 IL App
       (1st) 130152, ¶ 20; People v. Janik, 127 Ill. 2d 390, 402-03 (1989) (arresting officer’s
       testimony about odor of alcohol, defendant’s watery eyes, and defendant’s poor performance
       on field-sobriety tests sufficient evidence of intoxication). Officers Lin, Loughney, and
       Mategrano, all with extensive training and experience, opined Eagletail was intoxicated. All
       three officers smelled a strong odor of alcohol on Eagletail’s breath. When questioned about
       whether she had been drinking, Eagletail responded that she had had two or three beers and
       some punch that may have been spiked with alcohol. Eagletail also failed all three
       field-sobriety tests Officer Mategrano administered at the police station. The credible
       testimony of these three officers, all present around the time of Eagletail’s arrest, was
       sufficient to establish Eagletail’s intoxication.
¶ 39       Eagletail also claims that the field-sobriety tests were improperly administered and,
       therefore, resulted in invalid tests. We do not find Eagletail’s argument persuasive. Whether a
       field-sobriety test was performed correctly goes to the test’s admissibility. See People v.
       McKown, 236 Ill. 2d 278, 305-11 (2010). Even if true that the tests were performed incorrectly,
       and admitted in error, it was harmless because the testimony of Officers Mategrano, Lin, and
       Loughney presented sufficient evidence to prove Eagletail was intoxicated. Before the
       administration of the field-sobriety tests, Officers Lin and Loughney determined that Eagletail
       was intoxicated. Officer Mategrano also determined she was intoxicated before he
       administered the field-sobriety tests, as well as from the results of her breath test. Moreover,
       we see no reason to depart from settled Illinois case law that has held the tests to be reliable.
       People v. Robinson, 349 Ill. App. 3d 622, 631 (2004) (“HGN test, when used with the
       walk-and-turn and one-leg stand tests, is the most accurate and effective method of detecting
       impairment” (citing National Highway Traffic Safety, U.S. Department of Transportation,
       Psycho-Physical Tests for DWI Arrests, No. DOT-HS-802-424, at 39 (June 1977))); McKown,
       236 Ill. 2d at 302-03 (2010) (“A failed HGN test is relevant to impairment in the same manner
       as the smell of alcohol on the subject’s breath or the presence of empty or partially empty
       liquor containers in his car. Each of these facts is evidence of alcohol consumption ***.”).


                                                   -7-
¶ 40                            Merging Misdemeanor DUI Convictions
¶ 41        We agree with Eagletail, and the State concedes, that the mittimus should be corrected to
       reflect only one conviction for DUI because there was only one occasion. People v. King, 66
       Ill. 2d 551, 566 (1977). Thus, under Supreme Court Rule 615(b)(1), we vacate the DUI
       conviction under count IV and correct the mittimus to reflect judgment on count V.

¶ 42                                          CONCLUSION
¶ 43       We find the trial court did not abuse its discretion in admitting the IntoxNet MIS report into
       evidence and that there was sufficient credible evidence to prove Eagletail guilty of DUI
       beyond a reasonable doubt. We also merge the DUI convictions.

¶ 44      Affirmed.




                                                   -8-
