                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Phillips, 2011 IL App (2d) 101142




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    BRADLEY W. PHILLIPS, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-10-1142


Filed                      December 29, 2011


Held                       In a DUI prosecution, the State’s appeal from the grant of defendant’s
(Note: This syllabus       motion to strike the results of defendant’s breath test on the ground that
constitutes no part of     the State did not proffer the reference sample value of the instrument used
the opinion of the court   to administer the breath test in compliance with section 1286.230 of title
but has been prepared      20 of the Illinois Administrative Code was dismissed for lack of
by the Reporter of         jurisdiction, since the basis of defendant’s midtrial motion to strike was
Decisions for the          the State’s failure to comply with the version of section 1286.230 in
convenience of the         effect at the time of trial, not that the test results were illegally obtained,
reader.)
                           the State’s appeal was not the type contemplated by Supreme Court Rule
                           604(a)(1), and defendant did bring his motion at his first opportunity.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 10-DT-2287; the
Review                     Hon. William I. Ferguson, Judge, presiding.



Judgment                   Appeal dismissed.
Counsel on                 Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and
Appeal                     Frederick Flather, Assistant State’s Attorneys, of counsel), for the People.

                           Stephen J. Klein, of Ramsell & Associates, LLC, of Wheaton, for
                           appellee.


Panel                      JUSTICE HUTCHINSON delivered the judgment of the court, with
                           opinion.
                           Justices McLaren and Burke concurred in the judgment and opinion.




                                             OPINION

¶1           On March 10, 2009, defendant, Bradley W. Phillips, was arrested and charged by
        information with two counts of driving under the influence of alcohol (625 ILCS 5/11-
        501(a)(1), (a)(2) (West 2008)), and one count of speeding (625 ILCS 5/11-601(b) (West
        2008)). Defendant was administered a breath test, and the State later attempted to introduce
        the results of that test at defendant’s bench trial. Defendant objected and moved to strike the
        results of the breath test on the basis that the amended version of the regulatory provision
        governing the certification of evidentiary breath test instruments retroactively applied and
        therefore excluded the results because the State did not proffer the reference sample value
        on the instrument used to administer the breath test. The trial court granted defendant’s
        motion to strike. The State now appeals the trial court’s interlocutory order, contending that
        (1) an interlocutory appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1,
        2006) is appropriate; and (2) the amended version of section 1286.230 of title 20 of the
        Illinois Administrative Code (the Administrative Code) (20 Ill. Adm. Code 1286.230 (2011))
        does not apply retroactively to breath tests administered prior to June 4, 2009. For the
        reasons set forth below, we dismiss this appeal for lack of jurisdiction.

¶2                                        I. BACKGROUND
¶3          The record reflects that on March 10, 2009, defendant was arrested in Warrenville and
        charged with two counts of driving under the influence of alcohol and one count of speeding.
        A bench trial commenced on November 1, 2010. The State first called Officer Todd Mossey,
        a police officer with the Warrenville police department. Mossey testified that he was certified
        to administer breath tests to determine blood alcohol levels. Mossey testified that on March
        10, 2009, he was asked to assist with the observation of a breath test being administered to
        defendant at the police department. Mossey testified that defendant agreed to submit to the
        breath test and that the results of that test revealed a blood alcohol content of 0.184. During
        cross-examination, Mossey acknowledged that he did not know the reference sample value

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     on the instrument used for the breath test and that the logbook reflecting the results of tests
     administered did not contain the reference sample value. On redirect examination, the State
     tendered two affidavits from Officer Tim Miller, who averred that the instrument used to test
     defendant’s blood alcohol level was “checked for calibration [and accuracy]” and that the
     results of the analysis “coincided with the predicated alcohol concentration of the reference
     sample within [plus or minus] .01 W/V.” Defendant objected to the admission of the
     affidavits on the basis that they exceeded the scope of his cross-examination and were in
     violation of discovery. In responding to a question from the trial court, the State
     acknowledged that it did not turn over the Miller affidavits to defendant before trial. The trial
     court admitted the affidavits into evidence subject to cross-examination.
¶4        The State then called Officer Thomas Bellinger, a police officer with the Warrenville
     police department. Bellinger testified that he effected a traffic stop after his speed radar
     displayed that defendant’s car was traveling 52 miles per hour in a 35-mile-per-hour speed
     zone. Bellinger testified that, when defendant was pulled over, his speech was “very slurred,”
     his eyes were bloodshot and “glassy,” and he repeatedly licked his lips, indicating that his
     mouth was dry. Bellinger testified that, based on his experience as a police officer and his
     observations of defendant, defendant appeared to be under the influence of alcohol while
     operating his vehicle. The State rested after Bellinger’s testimony.
¶5        After the State rested, defendant moved to strike the results of the breath test. Defendant
     argued that section 1286.230 of title 20 of the Administrative Code, which was amended on
     June 4, 2009, provided that evidentiary instruments used to administer breath tests must
     quantitate a reference sample within 10% of the reference sample value as adjusted for
     environmental factors. According to defendant, because the affidavits did not specify the
     reference sample value for the instrument, the trial court could not determine whether the
     instrument quantitated a reference sample within 10% of the reference sample value, as
     required by the Administrative Code. Defendant further argued that, pursuant to this court’s
     decision in People v. Morris, 394 Ill. App. 3d 678 (2009), the State was required to
     demonstrate that it complied with the version of section 1286.230 that was in effect at the
     time of trial, not the version of that provision that was in effect when the breath test was
     administered. According to defendant, the State failed to establish that the machine used to
     administer the breath test was correctly certified pursuant to the rules that existed at the time
     of trial. Defendant also raised other arguments, which are not at issue in this appeal, for why
     the results of the breath test should not be permitted into evidence. The State countered that
     the motion should be denied because the State complied with the version of section 1286.230
     that was in effect when defendant was arrested and the test was administered. The State
     further argued that if the trial court was interpreting which law applied to this particular case,
     the State would be able to file a certificate of impairment and seek an interlocutory appeal.
¶6        The trial court granted defendant’s motion to strike the results of the breath test. Citing
     Morris, the trial court concluded:
               “[Morris] indicates that the ex post facto clause does not limit the legislature’s
          control of remedies or modes of procedure if they do not affect matters of substance, and
          an amendment that affects only procedure matters and not substantive rights will be
          applied retroactively, as well as prospectively.

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                And the [court in Morris] went on to say that the new standards apply and that the
            amended regulations affected the procedure, not substantive rights, and, thus, should
            have been applied retroactively.
                Similarly, the [c]ourt finds that, under Morris, I’m compelled to follow that case, and
            that means that the new rules apply.”
       The trial court concluded that, because there was no evidence indicating that the State
       complied with the amended version of section 1286.230, there was a missing element with
       regard to the proper foundation for the admission of the breath test results. Thereafter, the
       trial court granted the State leave to reopen the proofs and recessed the trial until the next
       day. When the matter resumed, the State filed instanter a certificate of impairment and a
       notice of appeal, claiming that the ruling striking the results of the breath test was effectively
       a suppression that impaired its ability to submit material evidence necessary to prove its case.
       This appeal followed.

¶7                                         II. DISCUSSION
¶8                                         A. Rule 604(a)(1)
¶9          The first issue on appeal is whether the State has a right to appeal the trial court’s
       interlocutory order, pursuant to Illinois Supreme Court Rule 604(a)(1). The State argues that,
       because the substantive effect of the trial court’s ruling was to suppress evidence, it has a
       right to appeal. Defendant argues that this appeal should be dismissed because the trial
       court’s ruling was evidentiary and therefore not appealable. Defendant further argues that
       jurisdiction pursuant to Rule 604(a)(1) is not appropriate because he was not able to object
       to the Miller affidavits before trial because those affidavits were not disclosed until after trial
       commenced. Finally, defendant argued at oral argument that the charges against him should
       be dismissed as a sanction against the State for improperly bringing this appeal. Defendant
       argues that the “unjust delay” resulting from the State’s interlocutory appeal adversely
       affected his due process rights.
¶ 10        Initially, we address defendant’s argument that the charges should be dismissed as a
       sanction against the State for improperly bringing this appeal. Although Illinois Supreme
       Court Rule 375 provides a reviewing court with inherent jurisdiction to sanction a party for
       an appeal not brought in good faith, it does not specifically provide that a court can dismiss
       criminal charges as a sanction. See Ill. S. Ct. R. 375 (eff. Feb. 1, 1994). Thus, as discussed
       below, our inquiry is limited to whether the trial court properly entertained defendant’s
       motion to strike the results of the breath test.
¶ 11        Turning to the issue of jurisdiction, Illinois Supreme Court Rule 604(a)(1) provides that
       the State may appeal an order or judgment the substantive effect of which results in
       suppressing evidence. Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2006). The substantive effect of a
       trial court’s order, as opposed to the label of the order or its underlying motion, controls
       whether the order is appealable pursuant to Rule 604(a)(1). People v. Kruger, 327 Ill. App.
       3d 839, 843 (2002) (citing People v. Drum, 194 Ill. 2d 485, 489 (2000)). “[I]f the trial court’s
       order precludes the State from presenting evidence to the fact finder, the State may appeal
       the order pursuant to Rule 604(a)(1).” People v. Galarza, 391 Ill. App. 3d 805, 810 (2009).

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       Whether we have jurisdiction, which involves the interpretation of Rule 604(a)(1), is a
       question of law, subject to de novo review. People v. Baltimore, 381 Ill. App. 3d 115, 123
       (2008).
¶ 12       Illinois law is well settled that, while pretrial orders suppressing evidence have a
       preclusive effect and are generally appealable, different rules apply for midtrial orders
       resulting in the suppression of evidence, because such orders have a disruptive effect on
       ongoing trials and burden the defendant. People v. Goodwin, 207 Ill. App. 3d 282, 287
       (1991). Thus, Rule 604(a)(1) was not intended to make every midtrial ruling prohibiting the
       introduction of evidence proffered by the State subject to interlocutory review. People v.
       Bradley, 129 Ill. App. 3d 177, 181-82 (1984). A midtrial order “suppressing evidence,”
       within the meaning of Rule 604(a)(1), “is one in which the evidence is suppressed and denied
       admittance because it was illegally obtained in violation of a constitutional or statutory right,
       or even though lawfully obtained, its admittance is to be denied because of a statutory
       prohibition or the violation of a court rule or some other grounds besides the recognized rules
       concerning the admission of evidence.” People v. Johnson, 113 Ill. App. 3d 367, 373-74
       (1983) (dismissing an appeal because the trial court’s ruling, though potentially erroneous
       on a substantive basis, was based wholly on evidentiary grounds). Accordingly, the State may
       obtain review of the merits of a midtrial suppression order where the order granted a
       defendant’s motion to suppress evidence on the ground that it was illegally obtained;
       however, if the defendant’s motion to suppress evidence did not allege that the evidence was
       illegally obtained, the State can seek review only of the trial court’s authority to entertain the
       motion to suppress during the trial and not of the merits of the trial court’s ruling. Goodwin,
       207 Ill. App. 3d at 288 (citing People v. Flatt, 82 Ill. 2d 250, 263-64 (1980)).
¶ 13       In the current matter, the State’s appeal of the merits of defendant’s midtrial motion to
       strike the results of the breath test is not the type of appeal contemplated by Rule 604(a)(1).
       The basis of defendant’s motion was that Miller’s affidavits did not comply with the version
       of section 1286.230 of title 20 of the Administrative Code in effect at the time of trial,
       because those affidavits did not specify the reference sample value on the instrument used
       to administer the test. Therefore, because defendant did not allege that the results of the test
       were illegally obtained, our review is limited to whether the trial court had authority to
       entertain defendant’s motion to strike. See Goodwin, 207 Ill. App. 3d at 288.
¶ 14       Here, the trial court properly considered defendant’s motion to strike the results of his
       breath test. As the State acknowledged, Miller’s affidavits were not turned over to defendant
       until the bench trial had already commenced. Thus, defendant could not have previously
       objected to the results on the basis that the Miller affidavits failed to include the reference
       sample value on the instrument used for the test, as required by the current version of section
       1286.230. Because the trial court considered defendant’s motion to strike promptly after
       defendant raised his objection at the first available opportunity, the trial court properly
       considered the motion. Therefore, the State’s appeal is not within the ambit of Rule
       604(a)(1). See Bradley, 129 Ill. App. 3d at 180.
¶ 15       We find support for our determination in Bradley. In Bradley, the defendant was charged
       with two counts of reckless homicide and one count of driving under the influence. Bradley,
       129 Ill. App. 3d at 178. During the bench trial, the State sought to introduce the results of a

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       chemical analysis performed on a sample of the defendant’s blood taken soon after the
       accident. The State called as a witness an expert in the field of “drawing blood and testing
       of blood for alcoholic content.” Id. The defendant objected, arguing that the witness lacked
       the necessary permit issued by the Illinois Department of Public Health, and the defendant
       also challenged the accuracy of the machine that analyzed her blood sample. Id. The trial
       court held that, unless the State could demonstrate that the witness possessed the requisite
       permit, his testimony was impermissible. Id. On appeal, the reviewing court first noted that
       the trial court properly considered the defendant’s exclusionary motion, because the
       defendant made the motion when her attorney first became aware of the deficiency in the
       witness’s certification. The reviewing court emphasized that the hospital records that were
       disclosed prior to the defendant’s trial did not include the witness’s name, the capacity of his
       employment at the hospital, or his qualifications. Id. at 180. As a result, the reviewing court
       concluded that the State’s interlocutory appeal was not within the ambit of Rule 604(a)(1)
       and dismissed the appeal. Id.
¶ 16        Similarly here, the Miller affidavits were not disclosed to defendant until after his bench
       trial had commenced. Therefore, until trial, defendant could not have objected to the results
       of the breath test based on the State’s failure to comply with the current version of section
       1286.230. As a result, the trial court correctly considered defendant’s motion to strike the
       results of the breath test for failing to include a reference sample value. See id.
¶ 17        We find further support in Goodwin. In Goodwin, during the defendant’s bench trial, the
       trial court ordered that the name of a confidential informant be disclosed, at the defendant’s
       request. Goodwin, 207 Ill. App. 3d at 283. The State’s witness, a special agent with the State
       Police, refused to reveal the confidential informant’s name, and the trial court considered and
       granted the defendant’s motion to strike certain testimony as a sanction. The State sought an
       interlocutory appeal from the trial court’s midtrial order, pursuant to Rule 604(a)(1). Id. On
       appeal, after concluding that the trial court should not have entertained the defendant’s
       motion to suppress the testimony, the reviewing court vacated the trial court’s order striking
       the testimony. Id. at 283-84, 287. The reviewing court emphasized that the defendant failed
       to offer a satisfactory explanation for failing to bring his motion to suppress before trial,
       because, pursuant to the discovery, he was “well aware of the existence of the informer
       before trial.” Id. at 290. Therefore, because the motion was untimely, the trial court “should
       neither have heard the motion nor entered the order under these circumstances.” Id.
¶ 18        Although Goodwin reached the opposite result that we reach, its reasoning is instructive.
       The court in Goodwin emphasized that the defendant’s midtrial motion to suppress was not
       timely, because the defendant had the opportunity to file a motion to suppress before trial.
       Conversely, defendant’s motion to strike the results of his breath test was premised on the
       Miller affidavits failing to contain the reference sample value required by the current version
       of section 1286.230. As noted above, the State conceded that the affidavits were not provided
       to defendant before trial. Therefore, defendant brought his motion to strike at the earliest
       opportunity, and, as a result, his motion was timely.
¶ 19        Finally, we note that the trial court granted the State leave to reopen the proofs.
       Therefore, although the trial court granted defendant’s motion to strike the results of the
       breath test because the State did not comply with section 1286.230, the State could have

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       proffered additional evidence demonstrating that it complied.
¶ 20       In sum, Illinois courts have unequivocally held that the State’s right to appeal from a
       midtrial order suppressing evidence is limited. Here, because the basis of defendant’s motion
       to strike was not that the evidence was illegally obtained, but, rather, that the results of his
       breath test did not comply with the current version of section 1286.230, our inquiry is limited
       to whether the trial court properly entertained defendant’s motion to strike. Because
       defendant brought his motion at the first opportunity, the trial court correctly entertained the
       motion. Therefore, the State’s appeal pursuant to Rule 604(a)(1) is not properly before this
       court, and we must dismiss this appeal.

¶ 21                      B. Section 1286.230 Retroactive Application
¶ 22       Having affirmed the timeliness of defendant’s motion to strike the results of the breath
       test, we dismiss the State’s appeal contending that the trial court erred in suppressing the
       evidence pursuant to Morris. In so doing, we reject the State’s request that we take this
       opportunity to provide guidance to lower courts regarding the retroactive applicability of
       section 1286.230. Illinois law is clear that “a reviewing court should not decide a case where
       the judgment would have only an advisory effect.” People v. Ousley, 235 Ill. 2d 299, 305
       (2009).

¶ 23                   C. Defendant’s Motion to Cite Additional Authority
¶ 24       During the pendency of this appeal, defendant filed a motion seeking to cite additional
       authority regarding the retroactive application of section 1286.230. Because we lack
       jurisdiction, we deny defendant’s motion as moot. See In re Alfred H.H., 233 Ill. 2d 345, 351
       (2009) (noting that courts in Illinois do not consider issues where the result will not be
       affected regardless of how those issues are decided).

¶ 25                                    III. CONCLUSION
¶ 26       For the reasons set forth above, we dismiss the State’s appeal for lack of jurisdiction.

¶ 27       Appeal dismissed.




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