                                         2017 IL App (3d) 160154

                                Opinion filed April 19, 2017
     _____________________________________________________________________________

                                                  IN THE


                                   APPELLATE COURT OF ILLINOIS


                                            THIRD DISTRICT


                                                    2017 


     THE PEOPLE OF THE STATE OF ILLINOIS, )                   Appeal from the Circuit Court
                                          )                   of the 10th Judicial Circuit,
          Plaintiff-Appellant,            )                   Peoria County, Illinois.
                                          )
          v. 	                            )                   Appeal No. 3-16-0154

                                          )                   Circuit No. 15-DT-403

     GARRETT MOTZKO,                      )

                                          )                   The Honorable

          Defendant-Appellee.	            )                   Lisa Y. Wilson,
                                          )                   Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justices Carter and McDade concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION


¶1          Defendant, Garrett Motzko was charged with driving under the influence of alcohol

     (DUI) (625 ILCS 5/11-501(a)(2) (West 2014)). Defendant filed a motion to quash arrest and

     suppress evidence, as well as a petition to rescind his statutory summary suspension. The trial

     court granted defendant’s motion to suppress. The State filed motions to reconsider, which the

     trial court denied. The State then appealed the trial court’s order, granting defendant’s motion to

     suppress. Thereafter, the court granted defendant’s petition to rescind. On appeal, the State

     argues that the trial court (1) erred in granting defendant’s motion to suppress, (2) erred in
     denying its motions to reconsider, and (3) lacked subject matter jurisdiction to grant defendant’s

     petition to rescind. We affirm.

¶2                                                  FACTS

¶3          On August 11, 2015, defendant was involved in single-vehicle motorcycle accident at the

     intersection of Main Street and Crescent Avenue in Peoria. Officer Michael Bishoff of the Peoria

     police department responded to the scene and issued defendant citations for improper lane usage

     (625 ILCS 5/11-709(a) (West 2014)), failure to reduce speed to avoid an accident (625 ILCS

     5/11-601(a) (West 2014)), and DUI (625 ILCS 5/11-501(a)(2) (West 2014)). On October 30,

     2015, defendant filed a motion to suppress evidence and quash arrest and a petition to rescind the

     statutory summary suspension of his driving privileges.

¶4          A hearing was held on defendant’s motion to suppress evidence and quash arrest. Officer

     Bishoff was the only witness to testify at the hearing. Bishoff testified that, at approximately

     11:45 p.m. on August 11, 2011, he was dispatched to an accident on Main Street and Crescent

     Avenue in Peoria, near Methodist Hospital. When he arrived, he saw a motorcycle lying on its

     side and defendant sitting on the ground being treated by medical personnel. Bishoff spoke to a

     security guard employed by Methodist Hospital, who told him that he observed defendant drive

     his motorcycle up Main Street at a “high rate of speed,” fail to negotiate the curve, and crash.

     The security guard also told Bishoff that he could smell alcohol on defendant’s breath. Bishoff

     did not question the security guard further.

¶5          Bishoff spoke to defendant while he was being treated at the scene. Bishoff asked

     defendant where he was coming from, and he responded, “downtown.” Bishoff then asked

     defendant if he was coming from his home in Morton, and defendant said he was. Bishoff asked

     defendant if he had consumed any alcohol. Defendant initially stated that he had a 12-ounce beer


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     and then corrected himself and said he had a 20-ounce beer. Bishoff did not ask defendant any

     other questions before he was transported to the hospital.

¶6          At the hospital, Bishoff performed a Horizontal Gaze Nystagmus (HGN) test on

     defendant. Bishoff did not perform any other field sobriety tests on defendant because of his

     injuries from the accident. Before the administration of the HGN test, defendant told Bishoff that

     he was blind in his right eye. Bishoff did not remember asking defendant if he struck his head

     during the accident but admitted that defendant may have sustained a head injury. Bishoff did not

     take that into account when administering the HGN test to defendant.

¶7          Bishoff testified that he observed five clues during defendant’s HGN test and explained

     that the presence of four or more clues is a strong indication that the individual being tested is

     “over .08 or intoxicated.” Bishoff testified that he received training in the HGN test and was

     taught that it can be used to determine if someone is intoxicated. He testified that HGN is “one of

     the most *** accurate tests in determining somebody to be over a .08 [blood alcohol level].”

¶8          In his report, Bishoff listed “glassy bloodshot eyes, slight odor of an alcoholic beverage,

     single vehicle crash involving motorcycle, [and] admission to drinking” as his reasons for

     believing defendant was driving under the influence of alcohol. At the hearing, Bishoff testified

     that he arrested defendant for DUI based on the clues he observed on the HGN test, the odor of

     an alcoholic beverage on defendant, defendant’s glassy, bloodshot eyes, and his admission to

     drinking. Bishoff also considered that defendant was likely coming from a bar when the accident

     happened based on defendant’s statement that he had been “downtown.” Bishoff testified that he

     also considered the accident and the statements by the security guard when he arrested defendant

     for DUI.




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¶9            Bishoff admitted that a person could smell of an alcoholic beverage if he only had one

       drink and that he had no way of knowing how much someone drank based solely on smell. He

       also admitted that he did not ask defendant if he could explain his bloodshot eyes or if dirt or

       debris got into his eyes during the accident. Bishoff testified that defendant initially seemed

       honest with him, but Bishoff questioned whether defendant was telling the truth about having

       only one drink because defendant said he was “coming from downtown” which “is a bar area.”

       Based on the time of defendant’s accident and that defendant was coming from downtown,

       Bishoff assumed defendant was coming from a bar. Bishoff admitted it is not illegal to consume

       alcohol and drive. He also admitted that accidents have many causes and said he did not arrest

       defendant for DUI because he had an accident. Bishoff admitted that he had no training in

       accident reconstruction that would help him determine the cause of defendant’s accident. Bishoff

       also admitted that he had no record or recollection of defendant having slurred speech.

¶ 10          Bishoff testified that defendant refused to perform a portable breath test (PBT) before his

       arrest. The State then asked Bishoff if he asked defendant to provide a blood, breath, or urine

       sample after his arrest, and defense counsel objected. The trial court sustained the objection. The

       parties stipulated to Bishoff’s training and experience. Defendant stipulated that Bishoff properly

       explained the HGN test but did not stipulate that he performed the test correctly on defendant.

¶ 11          On December 22, 2015, the trial court granted defendant’s motion to suppress evidence

       and quash arrest. The court explained that Bishoff’s testimony that HGN testing can determine

       the level of intoxication was wrong under People v. McKown, 236 Ill. 2d 278 (2010), and caused

       the court to call into question his “credibility on the issue of impairment in this case” as well as

       the HGN test itself “in terms of the officer’s experience, knowledge of the standards, and how it

       was conducted.” The court also took issue with Bishoff’s failure to investigate whether defendant


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       had a head injury that may have affected his performance on the HGN test and the State’s failure

       to call the security guard to testify about his observations of defendant’s driving.

¶ 12          Thereafter, the State filed a motion to reconsider and an amended motion to reconsider,

       arguing that the trial court should have allowed evidence of defendant’s post-arrest refusal to

       submit to chemical testing to be admitted at the suppression hearing. The State also filed a

       motion to reopen proofs, seeking to introduce defendant’s medical records as evidence. The trial

       court denied the State’s motions to reconsider and motion to reopen proofs. On March 16, 2016,

       the State filed a notice of appeal, appealing the trial court’s ruling on defendant’s motion to

       suppress.

¶ 13          On April 12, 2016, the trial court held a hearing on defendant’s petition to rescind. The

       State filed a notice of intent to use subpoenaed medical records containing statements and

       observations of defendant on the date of the accident. The trial court denied the State’s motion.

       The parties stipulated that, if called to testify, Bishoff would provide the same testimony as he

       provided at the suppression hearing.

¶ 14          Defendant testified at the rescission hearing that he vaguely remembered the night of the

       accident because he hit his head when he crashed his motorcycle. He testified that he travelled

       from his house in Morton to Pulse Gentlemen’s Club in downtown Peoria, where he drank one

       20-ounce beer. He did not believe his alcohol consumption had anything to do with his accident.

       Defendant said he refused to take a PBT because he had shattered his heel in the accident, was

       agitated, and wanted to leave the hospital.

¶ 15          The trial court granted defendant’s petition to rescind based on Bishoff’s testimony at the

       suppression hearing, its ruling on defendant’s motion to suppress, and “in consideration of

       Defendant Garrett Motzko’s testimony.”


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¶ 16                                               ANALYSIS

¶ 17                                           I. Motion to Suppress

¶ 18          The State argues that the trial court erred in granting defendant’s motion to suppress

       evidence. In reviewing a trial court’s ruling on a motion to suppress, we accord great deference

       to the trial court’s factual and credibility determinations. People v. Simpson, 2015 IL App (1st)

       130303, ¶ 22. When a trial judge makes a credibility finding at a suppression hearing, we should

       be reluctant to substitute our judgment for that of the trial court. People v. Nolan, 59 Ill. App. 3d

       177, 186 (1978). The trial court is in a far better position to judge the credibility of the witnesses.

       Id. When a trial court’s ruling on a motion to suppress involves factual and credibility

       assessments, the ultimate ruling will not be disturbed on appeal unless it is manifestly erroneous.

       People v. Boomer, 325 Ill. App. 3d 206, 209 (2001). However, the trial court’s ultimate

       determination with respect to probable cause is reviewed de novo. Id.

¶ 19          “Probable cause to arrest exists when the facts known to the officer at the time of the

       arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has

       committed a crime.” People v. Wear, 229 Ill. 2d 545, 563 (2008). Such a determination must be

       based on the totality of the circumstances at the time of the arrest. People v. Day, 2016 IL App

       (3d) 150852, ¶ 22. Probable cause must rise to a level higher than mere suspicion. Id.

¶ 20          The odor of alcohol on a defendant’s breath and his inadequate performance of a field

       sobriety test do not constitute reasonable grounds to believe that the defendant was driving under

       the influence. See Boomer, 325 Ill. App. 3d at 209 (citing People v. Tucker, 245 Ill. App. 3d 161

       (1993)). Speeding and being involved in an accident are insufficient bases upon which to support

       a DUI probable cause determination. See Boomer, 325 Ill. App. 3d at 211 (officer lacked

       probable cause to arrest defendant for DUI where defendant was involved in accident, admitted


                                                         6

       drinking, and had the odor of alcoholic beverage on his breath); People v. O’Brien, 227 Ill. App.

       3d 302, 307 (1992) (no probable cause to arrest defendant for DUI where defendant was

       speeding, admitted to drinking, and unsuccessfully performed sobriety test). Finally, a

       defendant’s consumption of alcohol and glassy bloodshot eyes “are not enough to lead a

       reasonably cautious person to believe that the defendant had committed the crime of DUI.” Day,

       2016 IL App (3d) 150852, ¶ 38. Where a defendant admitted to drinking, “ ‘had the strong odor

       of alcohol on his breath,’ ” had bloodshot eyes, and slurred his speech, the trial court properly

       ruled that the officer lacked probable cause to arrest the defendant for DUI because any

       suspicions of impairment were not corroborated by other factors, such as poor driving,

       stumbling, falling, or an inability to communicate. See Day, 2016 IL App (3d) 150852, ¶¶ 23,

       37-38.

¶ 21            Evidence of HGN testing, when performed according to protocol by a properly trained

       officer, is admissible for the purpose of showing that the subject has likely consumed alcohol.

       McKown, 236 Ill. 2d at 306. While HGN testing is an indicator of alcohol consumption, it is not

       necessarily a sign of impairment. Id. at 302. There should be no attempt to correlate HGN test

       results with any particular blood-alcohol level or range or level of intoxication. Id. For the results

       of HGN testing to be admissible, a proper foundation must be laid, showing that the witness is

       properly trained and performed the test in accordance with proper procedures. Id. at 306. “The

       admissibility of HGN evidence in an individual case will depend on the State’s ability to lay a

       proper foundation and to demonstrate the qualifications of its witness ***.” Id. at 314.

¶ 22            Here, Bishoff testified that he arrested defendant for DUI based on the odor of an

       alcoholic beverage on defendant’s breath, defendant’s glassy and bloodshot eyes, and his

       admission to drinking. However, Bishoff admitted that he could not tell how much defendant


                                                         7

       drank based on the “slight odor” of an alcoholic beverage on defendant’s breath. He also testified

       that defendant seemed honest to him before admitting that he had one drink. Additionally,

       Bishoff admitted that he never asked defendant about the condition of his eyes, including if they

       were irritated as a result of the accident.

¶ 23           As set forth in Day, the odor of an alcoholic beverage, admission to drinking, and glassy

       and bloodshot eyes are insufficient to create probable cause for a DUI without evidence of other

       factors to support impairment, such as poor driving, stumbling, falling, or an inability to

       communicate. Day, 2016 IL App (3d) 150852, ¶¶ 23, 37-38. There was no testimony or evidence

       that any of these factors were present to support Bishoff’s assumption that defendant was driving

       under the influence.

¶ 24           Bishoff testified that he also considered the accident and the testimony of the security

       guard in determining that defendant was impaired. However, Bishoff admitted that he did not

       question the security guard about exactly how fast he thought defendant was driving and further

       that he had no experience in accident reconstruction that would cause him to believe that the

       accident was caused by the defendant being impaired. Speeding and being involved in an

       accident are insufficient bases upon which to support a DUI probable cause determination. See

       Boomer, 325 Ill. App. 3d at 211; O’Brien, 227 Ill. App. 3d at 307.

¶ 25           Finally, Bishoff testified that defendant’s performance on the HGN test caused him to

       believe that defendant was impaired. Bishoff explained how he performed the HGN test on

       defendant and said that he used the test to determine that defendant was “over .08 or

       intoxicated.” He testified that he was taught that HGN proves impairment and is “one of the most

       *** accurate tests in determining somebody to be over a .08.” However, as explained by the

       supreme court in McKown, HGN testing is an indicator of alcohol consumption but is not an


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       indicator of a specific level of impairment. See McKown, 236 Ill. 2d at 302; see also Pamela J.

       Jensen, Frye Versus Daubert: Practically the Same?, 87 Minn. L. Rev. 1579, 1595 n. 90 (2003)

       (“States have almost uniformly excluded HGN testing as evidence of a specific blood alcohol

       level, as opposed to evidence of alcohol consumption ***[.]”); William Redfairn & Bruce

       Nelson, The ABCs of FSTS: A Brief Summary of Field Sobriety Tests in DUI Cases, Nev. Law.,

       Sept. 2006, at 8, 12 (“[T]he general consensus is that the HGN *** is admissible to show

       impairment but not to show a specific alcohol level.”). By stating that HGN testing was the most

       reliable indicator of whether someone has a blood alcohol level of .08, Bishoff showed that he

       was not properly trained to understand and interpret the results of HGN testing. The trial court

       did not err in giving little to no weight to Bishoff’s determination that defendant failed the HGN

       test because the State failed to show that Bishoff possessed the expertise to properly understand

       the results of HGN testing. See McKown, 236 Ill. 2d at 306, 314.

¶ 26          At the suppression hearing, the trial court stated that it questioned Bishoff’s “credibility

       on the issue of impairment in this case.” Where the trial court finds the State’s primary or only

       witness at a suppression hearing to lack credibility, the trial court does not err in granting the

       defendant’s motion to suppress. See People v. Stehman, 203 Ill. 2d 26, 33 (2002); People v.

       Luna, 322 Ill. App. 3d 855, 860 (2001); People v. Boston, 73 Ill. App. 3d 107, 109-10 (1979).

       Because Bishoff was the only witness to testify at the suppression hearing and the trial court

       questioned his credibility, the trial court properly granted defendant’s motion to suppress. See

       Stehman, 203 Ill. 2d at 33; Luna, 322 Ill. App. 3d at 860; Boston, 73 Ill. App. 3d at 109-10.

¶ 27                                       II. Motions to Reconsider

¶ 28          The State argues that the trial court erred in denying its motions to reconsider, asserting

       that the court misapplied section 11-501.2(c) of the Illinois Vehicle Code (Code) (625 ILCS


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       5/11-501.2(c) (West 2014)) by refusing to consider defendant’s post-arrest refusal to submit to

       chemical testing. When a motion to reconsider raises the question of whether the trial court erred

       in its application or purported misapplication of existing law, our review is de novo. People v.

       $280,020 United States Currency, 372 Ill. App. 3d 785, 791 (2007).

¶ 29          Section 11-501.2(c) of the Code provides in pertinent part: “If a person under arrest

       refuses to submit to a chemical test under the provisions of Section 11-501.1, evidence of refusal

       shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to

       have been committed while the person under the influence of alcohol *** was driving or in

       actual physical control of a motor vehicle.” 625 ILCS 5/11-501.2(c)(1) (West 2014). Section 11­

       501.1 of the Code, referenced in section 11-501.2(c), states in pertinent part:

                      “(a) Any person who drives or is in actual physical control of a motor

              vehicle upon the public highways of this State shall be deemed to have given

              consent, subject to the provisions of Section 11-501.2, to a chemical test or tests

              of blood, breath, or urine for the purpose of determining the content of alcohol

              *** in the person’s blood if arrested *** for any offense as defined in Section 11­

              501 ***. If a law enforcement officer has probable cause to believe the person

              was under the influence of alcohol, *** the law enforcement officer shall request

              a chemical test or tests which shall be administered at the direction of the

              arresting officer.” 625 ILCS 5/11-501.1(a) (West 2014).

¶ 30          While section 11-501.2(c) provides that refusal to submit to chemical testing is

       admissible in any “action or proceeding,” that is only true when testing is requested in

       compliance with section 11-501.1, which requires that the officer have probable cause to believe

       the defendant is under the influence of alcohol. See 625 ILCS 5/11-501.1(a), 501.2(c) (West


                                                        10 

       2014). Because the trial court determined that Bishoff lacked probable cause to believe that

       defendant was under the influence of alcohol, defendant’s refusal to submit to chemical testing

       was not admissible.

¶ 31           Assuming, arguendo, that defendant’s refusal to submit to chemical testing was

       admissible under section 11-501.2(c) of the Code, the trial court did not err in refusing to

       consider that evidence at the suppression hearing. Evidence must be relevant to be admissible.

       People v. Ross, 395 Ill. App. 3d 660, 678 (2009). The only issue at the suppression hearing was

       whether Bishoff had probable cause to arrest defendant for DUI. Any postarrest actions by

       defendant were not and could not have been relied on by Bishoff as probable cause for arresting

       defendant for DUI. Thus, the evidence was not relevant, and the trial court properly refused to

       consider it.

¶ 32                                        III. Petition to Rescind

¶ 33           Finally, the State argues that the trial court lacked subject matter jurisdiction to grant

       defendant’s petition to rescind because it appealed the trial court’s order granting defendant’s

       motion to suppress before the court ruled on defendant’s petition to rescind.

¶ 34           Subject matter jurisdiction refers to the power of a court to hear and determine cases of

       the general class to which the case in question belongs. People v. Castleberry, 2015 IL 116916,

       ¶ 12. As long as an alleged claim falls within the general class of cases that the court has the

       inherent power to hear and decide, subject matter jurisdiction exists. In re Luis R., 239 Ill. 2d

       295, 301 (2010).

¶ 35           A petition to rescind the statutory summary suspension of driving privileges presents a

       justiciable matter over which the trial court has subject matter jurisdiction. People v. Guillermo,

       2016 IL App (1st) 151799, ¶ 9; People v. Keegan, 334 Ill. App. 3d 1061, 1065 (2002). Thus, the


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       State’s claim that the trial court lacked subject matter jurisdiction to rule on defendant’s petition

       lacks merit. See Guillermo, 2016 IL App (1st) 151799, ¶ 9.

¶ 36          In arguing that the trial court lacked jurisdiction to rule on defendant’s petition, the State

       fails to acknowledge that a summary suspension hearing “is a civil proceeding, separate and

       apart from the criminal hearing regarding the charge of driving while under the influence of

       alcohol.” People v. Lagowski, 273 Ill. App. 3d 1012, 1013 (1995). Statutory summary suspension

       “operates without regard to the resolution of the companion DUI case.” People v. Schuld, 175 Ill.

       App. 3d 272, 284 (1988). Summary suspension “progresses independently of the related criminal

       prosecution for DUI.” People v. Meyer, 166 Ill. App. 3d 1030, 1033 (1988). A circuit court may

       not rescind a statutory summary suspension based solely on the disposition of the underlying

       criminal proceedings. People v. Schaefer, 154 Ill. 2d 250, 257-58 (1993); People v. Gerke, 123

       Ill. 2d 85, 95 (1988).

¶ 37          Section 2-118.1 of the Code “sets forth a comprehensive procedure for the conduct of a

       prompt judicial hearing when a person seeks to rescind the statutory summary suspension of his

       driving privileges.” Keegan, 334 Ill. App. 3d at 1064. The scope of the hearing is limited to

       specific issues, including the following:

                      “1. Whether the person was placed under arrest for an offense as defined

              in Section 11-501 ***; and

                      2. Whether the officer had reasonable grounds to believe that the person

              was driving *** upon a highway while under the influence of alcohol ***; and

                      3. Whether the person, after being advised by the officer that the privilege

              to operate a motor vehicle would be suspended or revoked if the person refused to

              submit to and complete the test or tests, did refuse to submit to or complete the


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              test or tests [authorized under Section 11-501.1.]” 625 ILCS 5/2-118.1(b) (West

              2014).

¶ 38          The scope of a court’s inquiry in a statutory summary suspension hearing is limited by

       the terms of the statute. Gerke, 123 Ill. 2d at 95. Reasonable grounds for believing a person was

       driving under the influence within the meaning of the summary suspension statute is

       synonymous with probable cause for arrest for DUI. People v. Rush, 319 Ill. App. 3d 34, 38

       (2001). Therefore, a trial court may consider and rely on the same evidence for both a motion to

       suppress and a petition to rescind. See id.

¶ 39          Here, the trial court granted defendant’s petition to rescind after finding that Bishoff

       lacked probable cause to arrest defendant for DUI and after the State appealed that ruling. The

       State’s appeal did not require the court to stay the rescission hearing until after the criminal

       appeal was decided because defendant’s criminal DUI prosecution and summary suspension

       hearing are separate and distinct proceedings. See Lagowski, 273 Ill. App. 3d at 1013; Meyer,

       166 Ill. App. 3d at 1033. The results of one do not affect the results of the other. See Schaefer,

       154 Ill. 2d at 257-58; Gerke, 123 Ill. 2d at 95; Schuld, 175 Ill. App. 3d at 284.

¶ 40          The trial court also did not err in considering evidence from the suppression hearing in

       granting defendant’s petition to rescind. The issue at defendant’s suppression hearing was

       whether Bishoff had probable cause to arrest defendant for DUI. The issue at the rescission

       hearing was whether there were reasonable grounds for believing defendant was driving under

       the influence. Because those issues are identical, the trial court could rely on evidence from the

       suppression hearing to make its decision on defendant’s petition to rescind. See Rush, 319 Ill.

       App. 3d at 38.




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¶ 41          Moreover, the State waived any objection to the admission of evidence from the

       suppression hearing. The failure to present a proper and timely objection constitutes a waiver of

       any error. People v. Holloman, 46 Ill. 2d 311, 318 (1970). Additionally, a party may not

       complain on appeal about the admission of evidence that the party stipulated to below. Id. at 318­

       19. Here, not only did the State fail to object to the trial court’s consideration of evidence from

       the suppression hearing, but it stipulated to the admission of Bishoff’s testimony from the

       suppression hearing. Thus, the State waived any alleged error. See id.

¶ 42                                            CONCLUSION

¶ 43          The judgment of the circuit court of Peoria County is affirmed.

¶ 44          Affirmed.




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