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                              Appellate Court                         Date: 2017.01.20
                                                                      12:22:18 -06'00'




                   People v. Cielak, 2016 IL App (2d) 150944



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



District & No.    Second District
                  Docket No. 2-15-0944



Filed             December 7, 2016



Decision Under    Appeal from the Circuit Court of Kane County, No. 15-DT-522; the
Review            Hon. Robert J. Morrow, Judge, presiding.



Judgment          Affirmed.



Counsel on        Randy K. Johnson, of Law Office of Randy K. Johnson, of West
Appeal            Dundee, and J. Brick Van Der Snick, of Van Der Snick Law Firm, of
                  St. Charles, for appellant.

                  Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                  Bauer and Kathryn E. Kohls, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                  Presiding Justice Schostok and Justice McLaren concurred in the
                  judgment and opinion.
                                              OPINION

¶1       Defendant, Kurt Cielak, was ticketed for driving while under the influence of alcohol
     (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2014)) and transported to the East Dundee
     police department. While there, he was given the statutory warning to motorists and was asked
     to complete a Breathalyzer test 19 minutes later. Defendant complied, and the results of the test
     revealed that his breath-alcohol concentration was over the legal limit. Because of that,
     defendant’s driving privileges were summarily suspended. Defendant petitioned to rescind that
     suspension, arguing, among other things, that the Breathalyzer test was administered before
     the arresting officer observed him for 20 minutes (see 20 Ill. Adm. Code 1286.310(a)(1)
     (2004)). The trial court denied the petition, defendant moved to reconsider, the court denied
     that motion, and this timely appeal followed. On appeal, defendant argues that (1) the State
     failed to substantially comply with the 20-minute continuous observation requirement and (2)
     he was denied due process when the State failed to disclose to him before the hearing that the
     arresting officer’s testimony that he began the 20-minute observation period before he read the
     warning to defendant was inconsistent with his police report. For the reasons that follow, we
     affirm.
¶2       At the hearing on the petition to rescind, Officer John Haase testified that, on June 7, 2015,
     at around 12:30 a.m., he arrested defendant for DUI and then took him to the police
     department. At around 12:43 a.m., he read the warning to defendant, which took about two or
     three minutes. Prior to reading the warning, Officer Haase began observing defendant for the
     mandated 20 minutes. Although Officer Haase’s police report was not admitted at the hearing,
     Officer Haase testified that, in the last paragraph of his report, he indicated that “ ‘[a]fter the
     matter of a 20[-]minute observation period, at 1:02 [he] administered the test.’ ”
¶3       Officer Haase’s testimony on cross-examination was somewhat conflicting. For example,
     after Officer Haase confirmed that he began the 20-minute observation period before he read
     the warning to defendant, he stated that he “probably” started the 20-minute observation period
     within 15 minutes of bringing defendant to the police department. He testified that he began
     observing defendant 10 minutes before the warning and that he observed defendant for a total
     of 29 minutes at the station before giving defendant the Breathalyzer test. During the
     observation period, defendant did not “vomit, throw-up or cough or anything like that.”
¶4       The State moved for a directed finding. The trial court granted that motion, noting that it
     was unaware of any requirement that prohibited the officer from starting the 20-minute
     observation period before reading the warning to defendant. It also found that Officer Haase
     was observing defendant while he was filling out paperwork before he read the warning.
¶5       Thereafter, defendant filed a motion to reconsider, attaching to his motion a “DUI
     Checklist” given to police officers. On this form, reading the warning is listed as number 9, and
     the 20-minute observation period is listed as number 10. The trial court denied the motion to
     reconsider, finding that the officer complied with the 20-minute observation period.
     Specifically, the court relied on Officer Haase’s testimony that he observed defendant both
     before and after he read the warning to motorists. The court again observed that it was not
     aware of any law that provided that the 20-minute observation period commences only after
     the warning is read to the defendant.
¶6       At issue is whether the petition to rescind the summary suspension of defendant’s driving
     privileges should have been granted. A hearing on a petition to rescind a summary suspension

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       of driving privileges is a civil proceeding. People v. Pollitt, 2011 IL App (2d) 091247, ¶ 13. On
       appeal, we apply the same bifurcated standard of review that applies to motions to suppress.
       See People v. Wear, 229 Ill. 2d 545, 560-62 (2008). That is, we defer to the trial court’s factual
       findings unless they are against the manifest weight of the evidence, and we review de novo the
       trial court’s determination of whether the petition to rescind should be granted. Id. at 561-62.
¶7          Because the trial court granted a directed finding, defendant asserts that the trial court erred
       in finding that he did not present a prima facie case for rescission. When a defendant
       challenges the results of a Breathalyzer test, as in this case, he must make a prima facie case
       that the test results are unreliable. People v. Aleliunaite, 379 Ill. App. 3d 975, 978 (2008).
       Prima facie evidence is equivalent to the amount of evidence required under the
       preponderance-of-the-evidence standard. People v. Bonutti, 338 Ill. App. 3d 333, 342 (2003).
       To attack breath-test results, the defendant must show that (1) the breath test was not properly
       administered, (2) the results were not accurate and trustworthy, or (3) the regulations regarding
       such testing were violated. People v. Barwig, 334 Ill. App. 3d 738, 744 (2002). If the defendant
       meets this burden, the burden then shifts to the State to present evidence justifying the
       suspension. Pollitt, 2011 IL App (2d) 091247, ¶ 13. If the defendant fails to establish a prima
       facie case, the State is entitled to a directed finding in its favor. Aleliunaite, 379 Ill. App. 3d at
       978. We review under the manifest-weight-of-the-evidence standard whether a defendant has
       presented a prima facie case for rescission. People v. Paige, 385 Ill. App. 3d 486, 489 (2008).
       For a decision to be against the manifest weight of the evidence, the opposite conclusion must
       be clearly evident. Barwig, 334 Ill. App. 3d at 743.
¶8          The first issue defendant raises is whether the regulations concerning Breathalyzer testing
       were violated. Specifically, defendant contends that the officer did not substantially comply
       with the 20-minute observation period as required by section 1286.310 of the Illinois
       Administrative Code (20 Ill. Adm. Code 1286.310 (2004)). Section 1286.310 provides:
                    “The following procedures shall be used to obtain a breath sample to determine a
               subject’s [breath-alcohol concentration] with an approved evidentiary instrument:
                        a) Prior to obtaining a breath analysis reading from a subject, the
                    [breath-analysis operator] or another agency employee shall continuously observe
                    the subject for at least 20 minutes.
                            1) During the 20[-]minute observation period the subject shall be deprived
                        of alcohol and foreign substances and shall not have regurgitated or vomited.
                            2) If the subject vomits during the observation (deprivation) period, the
                        process shall be started over by having the individual rinse the oral cavity with
                        water.
                            3) If the individual continues to vomit, alternate testing shall be
                        considered.”
¶9          Defendant argues that, given Officer Haase’s equivocal testimony concerning when the
       20-minute observation period began, the court should have discredited his statement that he
       administered the breath test only after observing defendant for 20 minutes. He further contends
       that Officer Haase was impeached by his police report, which did not contain an entry for when
       the observation period began. We disagree.
¶ 10        “Where testimonial evidence is conflicting, it is within the province of the trier of fact to
       determine credibility.” People v. Zator, 209 Ill. App. 3d 322, 328 (1991). More specifically,


                                                     -3-
       the trial court is charged with evaluating how any inconsistencies in a witness’s testimony
       affect the credibility of the whole testimony. See People v. Cunningham, 212 Ill. 2d 274, 283
       (2004). The court’s credibility determinations “should not be disturbed on review unless such
       findings are palpably against the manifest weight of the evidence.” Zator, 209 Ill. App. 3d at
       328.
¶ 11       Here, it is undisputed that Officer Haase began reading the warning to motorists at 12:43
       a.m. and administered the breath test at 1:02 a.m. As to the sequence of events, he testified that
       he arrested defendant at 12:30 a.m., transported him to the police station, and began to fill out
       paperwork, which took approximately 10 minutes. Officer Haase further testified that he began
       the 20-minute observation period 10 minutes before he read the warning at 12:43 a.m., while
       he was filling out the paperwork; he also acknowledged that he did not explicitly make an entry
       in the police report as to when the observation period commenced.1 On cross-examination,
       however, he testified that he began the observation period “probably within” 15 minutes of
       arriving at the police station. Officer Haase testified that he ultimately observed defendant for
       29 minutes before administering the breath test.
¶ 12       Based on the evidence, we cannot conclude that the court’s finding that defendant failed to
       make a prima facie case for rescission was against the manifest weight of the evidence.
       Although Officer Haase’s testimony that he “probably” began the observation period within 15
       minutes of arriving at the police station might seem contradictory to his statement that he
       observed defendant for 29 minutes, that fact alone did not mandate that Officer Haase’s
       testimony be discredited in its entirety. Indeed, a court may accept part of a witness’s
       testimony without accepting all of it. See People v. Hicks, 133 Ill. App. 2d 424, 437 (1971).
       The trial court here credited Officer Haase’s consistent testimony that he began the 20-minute
       observation period before he read the warning and that he observed defendant for 20
       continuous minutes before he gave the breath test. The court did not credit the slight inference
       from the police report’s lacking a start time that the observation period might have begun after
       Officer Haase read the warning.
¶ 13       Defendant’s reliance on In re Nicholas L., 407 Ill. App. 3d 1061 (2011), is misplaced. In
       Nicholas L., this court reversed an order that allowed the State to involuntarily administer
       psychotropic medication to the respondent. Id. at 1062. At the hearing, the State was required
       to prove by clear and convincing evidence that the respondent lacked the capacity to make a
       reasoned decision for himself. Id. at 1079. As one basis for the reversal, this court reasoned that
       the trial court’s order was against the manifest weight of the evidence because the expert
       testimony was equivocal. Id. at 1076. Specifically, the State’s expert testified on direct and
       cross-examination that the respondent had the capacity to make a reasoned decision for
       himself, but he testified on redirect examination that the respondent did not have the capacity.
       Id. at 1075-76.
¶ 14       Unlike in Nicholas L., Officer Haase’s testimony was not equivocal. He consistently
       testified that he began the observation period before he read the warning to defendant at 12:43
       a.m. and that he observed defendant for a continuous 20 minutes before giving the breath test.


           1
            The police report, which was not admitted into evidence, apparently contained a paragraph that
       stated that Officer Haase read the warning to motorists at 12:43 a.m. The next sentence apparently
       stated that “after the matter of a 20[-]minute observation period, at 1:02 [he] administered the test.”

                                                      -4-
¶ 15       In re Summary Suspension of Driver’s License of Ramos, 155 Ill. App. 3d 374 (1987), is
       instructive. In Ramos, the appellate court held that there was “substantial compliance” with the
       20-minute observation period even though the officer’s attention was diverted away from the
       defendant for six minutes while the officer reset the breathalyzer. Id. at 376-77. The court
       noted that the defendant was seated in the same hallway as the officer; did not smoke,
       regurgitate, or vomit; did not remove anything from his mouth; and was constantly within the
       peripheral vision of the officer. Id. Here, as in Ramos, there was “substantial compliance” with
       the 20-minute observation period. Officer Haase testified that he observed defendant for 20
       minutes and that defendant did not ingest anything, belch, or vomit.
¶ 16       Defendant argues in his reply brief that Ramos is distinguishable, because Officer Haase
       never testified that defendant was in his direct line of sight or in his peripheral vision and only
       responded to a leading question omitting those facts. Defendant’s argument is unavailing.
       Indeed, defendant filed the petition to rescind the summary suspension, and therefore, he had
       the burden to make a prima facie case that the test results were unreliable. Aleliunaite, 379 Ill.
       App. 3d at 978. For the reasons explained above, defendant failed to satisfy his burden. No
       evidence or testimony was presented that remotely suggested that defendant was not within
       Officer Haase’s direct line of sight or peripheral vision during the entirety of the time that they
       were at the police station. As the burden to justify the suspension never shifted to the State, we
       will not reverse the trial court’s findings on the basis that the State did not elicit such testimony
       from defendant’s witness.
¶ 17       Furthermore, to the extent that defendant appears to argue that the 20-minute observation
       period should start only after a defendant is read the warning, we reject such argument. Section
       1286.310 states, in relevant part, that “[p]rior to obtaining a breath analysis reading from a
       subject, the [breath-analysis operator] or another agency employee shall continuously observe
       the subject for at least 20 minutes.” 20 Ill. Adm. Code 1286.310(a) (2004). Nowhere does the
       regulation provide that the 20-minute observation period begins only after the warning is read
       to the defendant. If we were to construe the regulation as requiring as much, we would be
       reading into it conditions the drafters did not include. See Bonutti, 338 Ill. App. 3d at 341
       (“[T]he plain language must be given effect, without reading into it exceptions, limitations, or
       conditions that the legislature did not express.”). Moreover, any reliance defendant puts on the
       “DUI Checklist” is misplaced. Not only does the checklist fail to indicate that the sequence of
       events delineated must be followed in the listed order but, more importantly, the checklist is
       not authority to which we or the trial court are bound.
¶ 18       Defendant also argues that Officer Haase had a duty to record the time when the 20-minute
       observation period began. In making his argument, defendant points to no authority, and this
       court is unaware of any, that mandates that an officer must document when the 20-minute
       observation period commences. In the absence of authority providing that an officer must
       record the time when the 20-minute observation period begins, we find defendant’s argument
       unavailing.
¶ 19       Accordingly, the breath test was properly administered, and the trial court did not err in
       finding that defendant failed to make a prima facie case for rescission.
¶ 20       The second issue defendant raises is whether he was denied due process when the State
       failed to disclose to him before the hearing that Officer Haase would testify that he began the
       20-minute observation period before he read the warning to defendant. In addressing this issue,
       we first observe that a defendant’s right to receive exculpatory or impeaching evidence in the

                                                     -5-
       State’s possession applies in criminal cases. See People v. Kladis, 2011 IL 110920, ¶ 25; see
       also Brady v. Maryland, 373 U.S. 83, 87 (1963). As noted, summary suspension proceedings
       are civil, not criminal. Pollitt, 2011 IL App (2d) 091247, ¶ 13. Thus, we question defendant’s
       ability to challenge the nondisclosure of the evidence at issue here. See Kladis, 2011 IL
       110920, ¶ 25 (outlining limited evidence discoverable in misdemeanor cases). The cases
       defendant cites in his reply brief in support of his position are inapposite. See People v.
       Bywater, 223 Ill. 2d 477, 486 (2006) (providing that, before a motorist’s driving privileges
       may be suspended, the motorist must be given notice and an opportunity to be heard); People v.
       Schaefer, 154 Ill. 2d 250, 261 (1993) (statutory summary suspension becomes effective 46
       days after notice of suspension is given).
¶ 21       Moreover, defendant has not cited any authority, and this court is unaware of any, that
       provides that a Brady violation arises when a defendant is not informed about the substance of
       the testimony of a witness. Thus, we fail to see how the State’s failure to inform defendant
       about what Officer Haase would testify to in relation to the contents of his police report
       constitutes a Brady violation.
¶ 22       Putting aside those concerns, we note that, even if Brady applied here, defendant’s claim
       would not be viable. In Brady, the Supreme Court determined that the State violates a
       defendant’s right to due process if it fails to disclose evidence favorable to the defendant and
       material to guilt or punishment. Brady, 373 U.S. at 87. To establish a Brady violation, the
       defendant must demonstrate that (1) the evidence, whether exculpatory or impeaching, was
       favorable to him; (2) the State failed to disclose the evidence in response to a specific request;
       and (3) the defendant was prejudiced by the State’s failure to disclose the evidence, as the
       evidence was material. People v. Carballido, 2015 IL App (2d) 140760, ¶ 66. Evidence is
       “material” for the purposes of Brady if there is a reasonable probability that the result of the
       proceeding would have been different had the evidence been disclosed. Id. This “ ‘reasonable
       probability’ ” is defined as “ ‘a probability sufficient to undermine confidence in the
       outcome.’ ” (Internal quotation marks omitted.) Id. (quoting United States v. Bagley, 473 U.S.
       667, 682 (1985)). We review de novo whether the State committed a Brady violation. See
       People v. Hood, 213 Ill. 2d 244, 256 (2004).
¶ 23       Defendant argues that Officer “Haase’s testimony, [which was] inconsistent with his police
       report as to when Officer [Haase] commenced the 20[-]minute observation period, was clearly
       impeaching.” We disagree. First, we cannot conclude that Officer Haase’s testimony was
       inconsistent with his report. He testified that he observed defendant for 20 minutes before
       administering the breath test. In his report, Officer Haase indicated that “ ‘[a]fter the matter of
       a 20[-]minute observation period, at 1:02 [he] administered the test.’ ” In contrast to what
       defendant argues, Officer Haase’s testimony and his report are entirely consistent. Second, we
       believe that, even if Officer Haase’s testimony could be seen as contradicting his report, the
       inconsistency was not material. Defendant seems to argue that, whereas the report indicated
       that the warning was given before the 20-minute observation period began, Officer Haase
       testified that the warning was given after the observation period commenced. As noted above,
       the 20-minute observation period is in no way tied to the giving of the warning. Thus, the time
       at which the warning was given, in relation to the commencement of the 20-minute observation
       period, was not material under Brady.
¶ 24       For the above-stated reasons, the judgment of the circuit court of Kane County is affirmed.


                                                    -6-
¶ 25   Affirmed.




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