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                                      Appellate Court                             Date: 2016.01.27 10:38:06
                                                                                  -06'00'




                          People v. Smith, 2015 IL App (1st) 122306



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



District & No.           First District, Sixth Division
                         Docket No. 1-12-2306



Filed                    August 21, 2015
Rehearing denied         November 9, 2015
Modified opinion filed   November 13, 2015


Decision Under           Appeal from the Circuit Court of Cook County, Nos. TT-459-937,
Review                   TT-459-939; the Hon. Susan Kennedy Sullivan, Judge, presiding.



Judgment                 Reversed and remanded.



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

                         Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                         Jeffrey Allen, and Margaret M. Smith, Assistant State’s Attorneys, of
                         counsel), for the People.



Panel                    PRESIDING JUSTICE ROCHFORD delivered the judgment of the
                         court, with opinion.
                         Justices Hoffman and Hall concurred in the judgment and opinion.
                                              OPINION

¶1        A jury convicted defendant, Marc Smith, of driving on a suspended license (625 ILCS
     5/6-303(a) (West 2010)) and driving with an alcohol concentration of 0.08 or more (625 ILCS
     5/11-501(a)(1) (West 2010)) and acquitted him of driving under the influence of alcohol (625
     ILCS 5/11-501(a)(2) (West 2010)). On the conviction for driving on a suspended license, the
     trial court sentenced defendant to 24 months’ conditional discharge. On the conviction of
     driving with an alcohol concentration of 0.08 or more, the trial court sentenced defendant to a
     concurrent term of 24 months’ conditional discharge, as well as 360 hours of community
     service, a 30-hour alcohol treatment program, a victim impact panel, and $200 in fines. On
     appeal, defendant challenges only his conviction of driving with an alcohol concentration of
     0.08 or more, arguing that the trial court erred in admitting the result of his Breathalyzer test,
     without which there was no evidence proving his guilt beyond a reasonable doubt. We reverse
     and remand for a new trial.

¶2                                  I. PRETRIAL PROCEEDINGS
¶3       Defendant filed a motion in limine seeking to exclude the result of the Breathalyzer test
     administered to him on March 19, 2010, because, based on documents in defendant’s
     possession, the Breathalyzer machine was not properly certified as accurate. At the hearing on
     the motion in limine on the first day of trial, defendant argued that pursuant to the applicable
     administrative regulations (20 Ill. Adm. Code 1286.200 (2009) and 20 Ill. Adm. Code
     1286.230 (2011)), the State needed to prove, as a foundation for admission, that the
     Breathalyzer machine had been certified as accurate within 62 days before his test. The police
     station’s logbook indicated, however, that the Breathalyzer machine was certified as accurate
     about 120 days prior to defendant’s test.
¶4       The State claimed that the Breathalyzer machine had been electronically certified as
     accurate within the relevant time frame, as indicated in a letter and report (referred to
     collectively herein as the “electronic certification”) from the Illinois State Police, dated March
     2, 2011, about 13 months before trial. The letter, signed by the “Keeper of Records” of the
     Alcohol and Substance Testing Section of the Illinois State Police Academy, and notarized by
     a notary public, stated that it was made in response to a subpoena duces tecum and indicated
     that the Breathalyzer machine had been tested for accuracy on March 1, 2010, and April 1,
     2010. The report provided numerical data, but did not provide any interpretation of that data
     and did not state whether or not the Breathalyzer machine passed the accuracy tests.
¶5       Defendant argued that the State had never tendered the electronic certification during
     pretrial discovery, though the State apparently had the document in its possession for over a
     year. Defendant argued he had based his defense on the State’s apparent inability to provide
     the necessary foundation for admission of the Breathalyzer test result, and that the court should
     exclude the electronic certification and, by extension, the Breathalyzer test result based on the
     State’s “egregious” delay and discovery violation.
¶6       The State claimed it had tendered the electronic certification to the defense at an earlier
     pretrial hearing. The trial court initially noted that it was unaware of such a tender because a
     different judge presided over the earlier pretrial hearing and no indication was made in the
     record that the State had tendered the electronic certification to the defense on that date.


                                                 -2-
¶7         The trial court subsequently noted, though, that the regular practice was for the court to
       receive the electronic certification in a manila envelope and for the court to then hand the
       electronic certification to the State in the presence of defendant. Accordingly, as defendant
       likely would have been made aware of the electronic certification on the date it was presented
       to the State in open court, there was no discovery violation and, therefore, the trial court denied
       defendant’s motion in limine to exclude the Breathalyzer test result.
¶8         The State later asked the court, outside the presence of the jury, to rule on the admissibility
       of the electronic certification of the Breathalyzer machine. Over defense objection, the trial
       court ruled that the electronic certification was admissible as a self-authenticating business
       record. See Ill. R. Evid. 803(6) (eff. Apr. 26, 2012); 902(11) (eff. Jan. 1, 2011).

¶9                                                II. TRIAL
¶ 10       At trial, Howard Phillips testified that at approximately 4 p.m. on March 19, 2010, he was
       driving his Chrysler west on 79th Street and stopped at a red light at 79th Street and Kedzie
       Avenue. Four vehicles were ahead of him at the stoplight. He heard a vehicle approaching
       behind him, looked in the rearview mirror, observed defendant driving the vehicle, and thought
       the vehicle was moving too fast and might hit him.
¶ 11       Defendant’s vehicle struck Howard’s Chrysler, causing the Chrysler to strike a light pole.
       Both of Howard’s knees were broken as a result of the collision. Howard was taken to the
       hospital for surgery on his knees.
¶ 12       Officer Rodriguez testified he received a call at about 4 p.m. on March 19, 2010, to respond
       to a traffic crash near 79th Street and Kedzie Avenue. When he arrived at the scene, Officer
       Rodriguez saw a Volvo facing east in the westbound lane closest to the median, a Chrysler was
       wrapped around a light pole, and a Volkswagen was on the other side of the median with a
       cracked windshield.
¶ 13       Defendant was at the scene, being treated inside an ambulance. Defendant was asked if he
       wanted to go to the hospital, and he said no. The paramedic told Officer Rodriguez that
       defendant was a driver of one of the vehicles involved in the accident. Officer Rodriguez and
       defendant then walked toward the officer’s car. Officer Rodriguez noticed that defendant’s
       eyes were red and bloodshot. Defendant told the officer his name, and Officer Rodriguez
       entered the name in his portable data terminal and ascertained that defendant’s driver’s license
       was suspended. Officer Rodriguez detained defendant inside the police car and asked him
       about the accident. Defendant was hesitant to speak, but he did state that he had been traveling
       westbound on 79th Street.
¶ 14       Inside the police car, Officer Rodriguez smelled the odor of alcohol on defendant’s breath
       and noticed his speech was slurred. Based on his training and experience with the Chicago
       police department, Officer Rodriguez opined that defendant was under the influence of
       alcohol.
¶ 15       Officer Barber testified that shortly after 4 p.m. on March 19, 2010, he went to the scene of
       a traffic accident at 79th Street and Kedzie Avenue. Officer Barber saw a green Volvo facing
       east in the westbound lane and a Chrysler wrapped around a light pole. Officer Barber learned
       that defendant was the driver of the Volvo.
¶ 16       Officer Barber spoke with defendant at the scene and observed that defendant’s breath
       smelled like an “alcoholic beverage,” his eyes were bloodshot, and his speech was a little


                                                    -3-
       slurred. Officer Barber learned from Officer Rodriguez that defendant’s license was
       suspended, and he took defendant to the police station, where he administered three field
       sobriety tests. Defendant failed all three tests. Officer Barber formed the opinion that
       defendant was under the influence of alcohol.
¶ 17        Officer Barber gave defendant a Breathalyzer test. Officer Barber previously had been
       trained to administer the Breathalyzer test, he was certified as a “breath operator” and was
       recertified every 3 years for the past 15 years. When asked whether he knew how the
       Breathalyzer machine works, Officer Barber explained he knew how to administer the test and
       that he prepared the machine by hitting “enter” and inputting the test taker’s name, date of
       birth, driver’s license number and ticket number along with the officer’s name, county, and
       badge number. Officer Barber testified the machine then self-calibrates and reads 0.000 to
       indicate it is calibrated and working properly at the time of the test.
¶ 18        Officer Barber testified the Breathalyzer machine was regularly tested for accuracy by the
       Illinois State Police and had been tested on March 1, 2010 (prior to defendant’s test), and April
       1, 2010 (after defendant’s test). Officer Barber did not testify to the results of those accuracy
       tests.
¶ 19        Officer Barber gave defendant the Breathalyzer test on March 19, 2010, approximately two
       hours after the car accident. Prior to testing him, Officer Barber observed defendant for 20
       minutes to ensure he had not eaten or drunk anything which would taint the test. After
       observing defendant for the requisite 20 minutes, Officer Barber prepared the Breathalyzer
       machine by inputting the relevant information, after which the machine self-calibrated and
       read 0.000. Officer Barber gave defendant a tube attached to the Breathalyzer machine and told
       him to blow into it for four or five seconds. Defendant did so, after which the Breathalyzer
       machine showed a result on the screen and printed out a “breath ticket” which revealed
       defendant’s blood alcohol concentration was 0.099, which was over the legal limit of 0.08. The
       trial court admitted the breath ticket into evidence.
¶ 20        On cross-examination, Officer Barber testified he does not know how the Breathalyzer
       machine works and does not test it for accuracy but that he is trained to administer tests using
       the machine. Officer Barber explained that, at one time, officers from the Illinois State Police
       came to the police station personally to test the Breathalyzer machine for accuracy, the results
       of which were written in log books, but that the Illinois State Police no longer personally tests
       the machine. Instead, the machine is tested electronically on the first day of every month.
       Officer Barber is not present when the Illinois State Police tests the Breathalyzer machine on
       the first of the month.
¶ 21        The State rested and the court admitted the electronic certification of the Breathalyzer
       machine over defendant’s objection.
¶ 22        Defendant testified that in the afternoon on March 19, 2010, he was driving westbound in
       his Volvo on 79th Street to pick up his mother at Midway Airport when he was sideswiped by
       another vehicle, a Chrysler, just before Kedzie Avenue. As a result of the collision, defendant
       slammed into the center median and the other vehicle hit a light pole. Paramedics arrived and
       asked defendant if he wanted to go to the hospital. Defendant declined.
¶ 23        Defendant was taken to the police station, where Officer Barber told him to take a
       Breathalyzer test by blowing into the Breathalyzer machine. Defendant blew into the
       Breathalyzer machine twice, but it did not “beep” to indicate that it registered a result. Officer
       Barber never showed defendant a receipt indicating a result.

                                                   -4-
¶ 24       The jury convicted defendant of driving on a suspended license and driving with an alcohol
       concentration of 0.08 or more. The jury acquitted defendant of driving under the influence of
       alcohol. On the conviction of driving on a suspended license, the trial court sentenced
       defendant to 24 months’ conditional discharge. On the conviction of driving with an alcohol
       concentration of 0.08 or more, the trial court sentenced defendant to a concurrent term of 24
       months’ conditional discharge, as well as 360 hours of community service, a 30-hour alcohol
       treatment program, a victim impact panel, and $200 in fines. Defendant appeals his conviction
       of driving with an alcohol concentration of 0.08 or more; he makes no argument on appeal
       regarding his conviction of driving on a suspended license.

¶ 25                                           III. ANALYSIS
¶ 26       First, defendant contends the trial court improperly admitted his Breathalyzer test result,
       without which the evidence was insufficient to sustain the verdict against him.
¶ 27       In reviewing the sufficiency of the evidence, the relevant inquiry is whether, after viewing
       the evidence in the light most favorable to the prosecution, any rational trier of fact could have
       found the essential elements of the crime beyond a reasonable doubt. People v. Givens, 364 Ill.
       App. 3d 37, 43 (2005). It is the province of the trier of fact to assess the credibility of the
       witnesses, determine the weight to be given their testimony, resolve conflicts in the evidence,
       and draw reasonable inferences from the evidence. Id.
¶ 28       To prove defendant guilty of driving with an alcohol concentration of 0.08 or more, the
       State must prove: (1) he drove or was in actual physical control of any vehicle in Illinois; and
       (2) the alcohol concentration in his blood was 0.08 or more. 625 ILCS 5/11-501(a)(1) (West
       2010).
¶ 29       On appeal, defendant does not argue that the State failed to establish that he was driving or
       in actual physical control of a vehicle. Rather, defendant’s argument is that: the State failed to
       lay an adequate foundation for admission of the Breathalyzer test result (showing he had an
       alcohol concentration of 0.099); the Breathalyzer test result, therefore, should not have been
       admitted; and his conviction should be reversed because without the Breathalyzer test result,
       there was no evidence that the alcohol concentration in his blood was 0.08 or more.
¶ 30       For admission of a Breathalyzer test result, the State must show: (1) the Breathalyzer test
       was performed according to the uniform standard adopted by the Department of State Police1;
       (2) the operator administering the test was certified by the Department of State Police; (3) the
       machine used was a model approved by the Department of State Police, was tested regularly
       for accuracy, and was working properly; (4) the motorist was observed the requisite 20 minutes
       before the test and, during this period, he did not smoke, vomit, or drink; and (5) the result
       appearing on the printout sheet can be identified as the test given to the motorist. People v.
       Orth, 124 Ill. 2d 326, 340 (1988).
¶ 31       At issue here is the third Orth factor, the accuracy requirement. To satisfy this requirement,
       the State must establish that the Breathalyzer test was performed in accordance with section
       11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a) (West 2010)) and the


          1
            Pursuant to Public Act 91-828 (Pub. Act 91-828, § 5 (eff. Jan. 1, 2001)), reference to the
       “Department of Public Health” was replaced by the “Department of State Police.” See 625 ILCS
       5/11-501.2(a) (West 2010).

                                                   -5-
       regulations promulgated by the Illinois Department of State Police. People v. Clairmont, 2011
       IL App (2d) 100924, ¶ 12.
¶ 32       In pertinent part, section 11-501.2(a) authorizes admission of the chemical analysis of a
       person’s breath in the prosecution of the offense of driving with an alcohol concentration of
       0.08 or more. 625 ILCS 5/11-501.2(a) (West 2010). Section 11-501.2(a)(1) provides that “to
       be considered valid” the Breathalyzer test must be performed “according to standards
       promulgated by the Department of State Police.” 625 ILCS 5/11-501.2(a)(1) (West 2010).
       Section 11-501.2(a)(1) further provides: “The Director of State Police is authorized to ***
       certify the accuracy of breath testing equipment. The Department of State Police shall
       prescribe regulations as necessary to implement this Section.” Id. Section 11-501.2 is
       “intended to ensure reliability of evidence introduced in prosecutions for driving under the
       influence.” People v. Emrich, 113 Ill. 2d 343, 349 (1986).
¶ 33       Pursuant to section 11-502.1(a)(1), the Department of State Police promulgated regulations
       contained in sections 1286.200 and 1286.230 of Title 20 of the Illinois Administrative Code.
       See 20 Ill. Adm. Code 1286.200 (2009); 20 Ill. Adm. Code 1286.230 (2011). Under section
       1286.200, a rebuttable presumption that the Breathalyzer machine was accurate arises if the
       following four conditions are met: (1) the Breathalyzer machine was approved pursuant to
       section 1286.210 of the regulations (20 Ill. Adm. Code 1286.210 (2011) (not pertinent here));
       (2) an accuracy check was conducted prior to defendant’s test that was within the “accuracy
       tolerance” described in section 1286.230 of the regulations; (3) no accuracy check was
       performed after defendant’s test or an accuracy check was performed after defendant’s test and
       it was within the accuracy tolerance; and (4) defendant’s test was conducted not more than 62
       days after the last accuracy check. 20 Ill. Adm. Code 1286.200 (2009).
¶ 34       Section 1286.230 of the regulations provides in pertinent part:
                   “To ensure the continued accuracy of approved evidentiary instruments, a BAT or
               automated system shall perform accuracy checks.
                       a) Checks shall be performed at least once every 62 days.
                       b) Checks shall consist of at least two tests of the instrument in which the
                   instrument quantitates a reference sample.
                       c) Approved evidentiary instruments must quantitate a reference sample within
                   10 percent of the reference sample’s value, as adjusted for environmental factors.
                       d) The accuracy check results shall be recorded in the instrument’s logbook or
                   internal memory, or in the central repository. The automatic accuracy checks or
                   accuracy checks performed remotely will not be entered in the logbook. If the
                   accuracy check was performed by a BAT at the instrument location, the accuracy
                   check results shall be recorded in the instrument’s logbook.” 20 Ill. Adm. Code
                   1286.230 (2011).
       “Thus, the plain and ordinary language of section 1286.230 indicates that a [Breathalyzer]
       machine must be checked at least once every 62 days or it will not be considered accurate.”
       Clairmont, 2011 IL App (2d) 100924, ¶ 19.
¶ 35       In discussing the third Orth factor, this court has held that to meet the foundational
       requirement that the Breathalyzer machine was tested for accuracy and met the accuracy
       tolerance described in the regulations, the State need not present evidence at trial showing the
       actual accuracy test results; rather, the State needs only to show that the Breathalyzer machine

                                                  -6-
       was inspected and certified as accurate within the time prescribed in the regulations and that
       the machine does not exhibit any malfunction at the time of defendant’s test. See People v.
       Caruso, 201 Ill. App. 3d 930, 941 (1990); People v. Kilpatrick, 216 Ill. App. 3d 875, 881
       (1991). Failure to comply with the regulations renders the result of the Breathalyzer test
       unreliable and, thus, inadmissible. Clairmont, 2011 IL App (2d) 100924, ¶ 12.2
¶ 36        Defendant here argues that the State failed to meet the foundational requirement of
       showing that the Breathalyzer machine was certified as accurate within the required time
       frame, specifically, within 62 days prior to defendant’s test.
¶ 37        The parties dispute the standard of review. Defendant argues that the question of whether
       the State met the foundational requirement set forth in the regulations for admission of the
       Breathalyzer result is an issue of law for which de novo review is required. In support,
       defendant cites People v. Simpson, 2015 IL App (1st) 130303, ¶ 35, and People v. Negron,
       2012 IL App (1st) 101194, ¶ 34, which held that the determination as to whether foundational
       requirements were met for the admission of expert testimony is a question of law reviewed
       de novo. Defendant also cites People v. Cady, 311 Ill. App. 3d 348, 350 (2000), which applied
       de novo review to determine whether the State proved that the Breathalyzer machine used to
       test defendant’s breath was certified as accurate, and People v. Eagletail, 2014 IL App (1st)
       130252, ¶ 19, which applied de novo review to determine whether the State satisfied the
       foundational requirements for admitting evidence of the results of defendant’s breath test.
¶ 38        The State counters that the proper standard of review is for an abuse of discretion and cites
       in support People v. Taylor, 2011 IL 110067, in which our supreme court reviewed the trial
       court’s decision to admit a VHS tape for an abuse of discretion, noting that reviewing courts
       should defer to the trial court’s evidentiary rulings even if they involve legal issues unless the
       trial court’s exercise of its discretion was frustrated by an erroneous rule of law. Id. ¶¶ 26-27.
       But see People v. Crowe, 327 Ill. App. 3d 930, 936 (2002) (noting our supreme court’s holding
       with regard to deferring to the trial court’s evidentiary rulings even if they involve legal issues,
       but finding that de novo review is appropriate when no fact or credibility issues are involved in
       the evidentiary ruling).
¶ 39        We need not resolve the issue of the proper standard of review in the present case, as our
       holding would be the same under either standard. We turn to the merits of defendant’s
       argument that the State failed to meet the foundational requirement of showing that the
       Breathalyzer machine was certified as accurate within the requisite 62-day time frame.
¶ 40        In support of his argument, defendant notes that although the electronic certification
       admitted into evidence states that accuracy tests were conducted by the Illinois State Police on
       defendant’s Breathalyzer machine on March 1, 2010, and April 1, 2010 (within 62 days prior
       to and after defendant’s test), it merely lists the numerical results of the accuracy tests without
       providing any interpretation of those results. The electronic certification does not state that the
       Breathalyzer machine passed the accuracy tests, performed within the accuracy tolerance, and
       was, in fact, accurate. The State provided no evidence at trial, and makes no argument on
       appeal, regarding the meaning of the numbers in the electronic certification.

           2
            The results of a Breathalyzer test may be admitted if the State establishes substantial compliance
       with the regulations. People v. Olson, 2013 IL App (2d) 121308, ¶ 15. Substantial compliance is found
       where the deviation from the regulations neither affects the reliability of the Breathalyzer test nor
       prejudices defendant. Id. The State makes no substantial compliance argument here.

                                                      -7-
¶ 41       Defendant further notes that Officer Barber, who administered the Breathalyzer test to
       defendant on March 19, 2010, testified he does not know how the Breathalyzer machine works,
       he was not present when the Illinois State Police tested it for accuracy on March 1, 2010 and
       April 1, 2010, and he does not know how the accuracy tests were conducted. No other witness
       testified to the accuracy of the Breathalyzer test results.
¶ 42       Defendant contends that on this record, the State failed to establish the foundational
       requirement that his Breathalyzer machine was certified as accurate at least once within 62
       days prior to his test.
¶ 43       We agree with defendant. The electronic certification admitted into evidence contains raw
       data from the accuracy tests conducted electronically by the Illinois State Police on March 1,
       2010, and April 1, 2010, but it provides no interpretation of that data, without which we are
       unable to discern whether the Breathalyzer machine performed within the accuracy tolerance
       and was certified as accurate for those dates. The Illinois State Police who conducted the
       accuracy testing electronically, and who could have testified as to whether the Breathalyzer
       machine was certified as accurate on those dates, were not called to testify at trial. The Keeper
       of Records who provided the electronic certification to the trial court was not called to testify.
       Nor was any other evidence or testimony admitted regarding whether the Breathalyzer
       machine was certified as accurate on March 1, 2010, and April 1, 2010. Instead, the State
       called Officer Barber, who was not a member of the Illinois State Police and who was not
       involved with the officers’ testing of the Breathalyzer machine. Officer Barber testified the
       Breathalyzer machine was working properly on the date he administered defendant’s test
       (March 19, 2010), as evidenced by the 0.000 reading it gave after self-calibrating, but he never
       testified to the results of the accuracy tests conducted electronically by the Illinois State Police
       on March 1, 2010, and April 1, 2010. As discussed earlier in this opinion, a proper foundation
       for the admissibility of Breathalyzer test results requires a showing that the Breathalyzer
       machine was functioning properly on the date of the test and that it was certified for accuracy
       within the time prescribed in the regulations (Caruso, 201 Ill. App. 3d at 941); the regulations
       currently require that the Breathalyzer machine be tested for accuracy not more than 62 days
       prior to the test. Officer Barber’s testimony addressed only one of the foundational elements,
       the functioning of the Breathalyzer machine on the date of defendant’s test, but did not address
       the remaining foundational element, the accuracy certification within 62 days prior to the test.
¶ 44       In the absence of any evidence that defendant’s Breathalyzer machine was certified as
       accurate within 62 days prior to defendant’s test, as required by the applicable regulations, the
       State failed to establish a proper foundation for the admission of the Breathalyzer test result
       and the trial court erred by admitting it into evidence.
¶ 45       Having determined that the trial court erred in admitting the Breathalyzer test result into
       evidence, we next turn to the appropriate remedy. Defendant requests outright reversal because
       the evidence is insufficient to sustain his conviction without the Breathalyzer test result. The
       State counters that its failure to provide an adequate evidentiary foundation for the admission
       of the Breathalyzer test result amounts to a “trial error” rather than one involving insufficient
       evidence, and that the appropriate remedy is to remand for a new trial.
¶ 46       The prospect of retrial raises double jeopardy concerns and requires us to assess the
       sufficiency of the evidence against defendant. People v. Harris, 2015 IL App (1st) 132162,
       ¶ 45. For purposes of double jeopardy, our supreme court has distinguished between
       judgments reversing convictions on account of “trial error” and judgments reversing

                                                    -8-
       convictions on account of evidentiary insufficiency. People v. Olivera, 164 Ill. 2d 382, 393
       (1995). Our supreme court has held that “[a]lthough the double jeopardy clause precludes the
       State from retrying a defendant after a reviewing court has determined that the evidence
       introduced at trial was legally insufficient to convict, the double jeopardy clause does not
       preclude retrial of a defendant whose conviction has been set aside because of an error in the
       proceedings leading to the conviction. [Citation.]” Id. “If the evidence presented at the first
       trial, including the improperly admitted evidence, would have been sufficient for any rational
       trier of fact to find the essential elements of the crime proven beyond a reasonable doubt, retrial
       is the proper remedy.” (Emphasis added.) People v. McKown, 236 Ill. 2d 278, 311 (2010).
¶ 47        In the present case, we are setting aside defendant’s conviction because of a trial error in
       the proceedings leading to the conviction, specifically, because the State failed to establish a
       proper foundation for the admission of the Breathalyzer test result and the trial court erred by
       admitting it into evidence. Accordingly, in determining the appropriate remedy, we consider
       whether all the evidence presented at trial, including the Breathalyzer result, was sufficient to
       convict. Olivera, 164 Ill. 2d at 393; People v. Lopez, 229 Ill. 2d 322, 367 (2008). The relevant
       question is whether, after viewing all the evidence (including the Breathalyzer result) in the
       light most favorable to the State, any rational trier of fact could have found the essential
       elements of the crime of driving with an alcohol concentration of 0.08 or more beyond a
       reasonable doubt. Lopez, 229 Ill. 2d at 367. If the answer is yes, then there are no double
       jeopardy concerns, and the proper remedy is to remand for a new trial. Id. at 368.
¶ 48        As discussed earlier in this opinion, to prove defendant guilty of driving with an alcohol
       concentration of 0.08 or more, the State must prove: (1) he drove or was in actual physical
       control of any vehicle in Illinois; and (2) the alcohol concentration in his blood was 0.08 or
       more. 625 ILCS 5/11-501(a)(1) (West 2010). Defendant does not dispute that he was driving
       or in actual physical control of a vehicle that was involved in an accident on the date in
       question, March 19, 2010. The issue is whether his alcohol concentration was 0.08 or more.
       Officer Barber testified he administered a Breathalyzer test to defendant two hours after the
       accident on March 19, 2010. The trial court admitted into evidence the breath ticket printed out
       by the Breathalyzer machine, which revealed the test result. The breath ticket details the date
       and time the test was taken, Officer Barber’s name and badge number, defendant’s full name,
       his date of birth, the ticket number, and the result of the Breathalyzer test as 0.099. Officer
       Barber testified that defendant’s Breathalyzer test result of 0.099 was above the legal limit of
       0.08. Viewed in the light most favorable to the State, the evidence at trial was sufficient for any
       rational trier of fact to find that defendant was guilty of driving with an alcohol concentration
       of 0.08 or more. Accordingly, there is no double jeopardy impediment to retrial and, thus, we
       remand the cause to the circuit court for that purpose.
¶ 49        Defendant argues though, that People v. Raney, 324 Ill. App. 3d 703 (2001) compels us to
       reverse his conviction outright, without remand. In Raney, the defendant there, Dan Raney,
       was convicted of possession of a controlled substance with intent to deliver (1.349 grams
       cocaine) and sentenced to eight years in prison. Id. at 704. On appeal, the defendant argued that
       the State failed to prove him guilty beyond a reasonable doubt because the State failed to
       establish a proper foundation for the admission of the expert’s testimony that the scientific
       results from the gas chromatography mass spectrometer (GCMS) machine indicated that the
       substance in question was cocaine. Id. at 704-05.



                                                    -9-
¶ 50       The appellate court agreed that the State failed to establish the necessary foundation proof
       for admitting the expert opinion regarding the GCMS results. Id. at 710. The appellate court
       concluded: “the State failed to prove defendant guilty beyond a reasonable doubt of possession
       of a controlled substance with intent to deliver based on the lack of proper foundation for [the
       expert’s] opinion that the substance in the 14 packets contained cocaine.” Id. at 711. With no
       further discussion, the appellate court then reversed outright, without remanding. Id.
¶ 51       Defendant contends that, pursuant to Raney, we should find that the State failed to prove
       him guilty beyond a reasonable doubt of driving with an alcohol concentration of 0.08 or more,
       based on the lack of proper foundation for the admission of the Breathalyzer test result, and
       reverse his conviction outright without remand. However, Raney runs counter to our supreme
       court precedent holding: (1) the improper admission of evidence does not automatically
       require outright reversal, even where the evidence is insufficient to sustain a verdict once the
       erroneously admitted evidence has been discounted; and (2) remand is appropriate where all
       the evidence at trial, including the improperly admitted evidence, when viewed in the light
       most favorable to the State, is such that any rational trier of fact could have found defendant
       guilty beyond a reasonable doubt, thereby obviating any double jeopardy concerns. See Lopez,
       229 Ill. 2d at 367-68; Olivera, 164 Ill. 2d at 393-97.
¶ 52       We are obliged to follow the precedents of our supreme court. People v. Goebel, 284 Ill.
       App. 3d 618, 624 (1996). Accordingly, pursuant to Lopez and Olivera, we reverse defendant’s
       conviction of driving with an alcohol concentration of 0.08 or more and remand for a new trial.
¶ 53       Defendant also contends that People v. Bush, 214 Ill. 2d 318 (2005), and People v.
       Hagberg, 192 Ill. 2d 29 (2000), compel us to reverse his conviction outright, without remand.
       In Bush, the defendant there, Joyce Bush, was convicted of two counts of possession of a
       controlled substance with the intent to deliver. Bush, 214 Ill. 2d at 320. At trial, the parties
       stipulated that the expert in forensic chemistry would testify he tested the item recovered and
       determined it was cocaine in the amount of less than 0.1 gram. Id. at 321-22. On appeal to the
       supreme court, Bush argued that the State failed to prove beyond a reasonable doubt that the
       substance was in fact cocaine, as the expert’s opinion on that point lacked adequate foundation.
       Id. at 322. The defendant cited Raney in support. Id. at 330. Our supreme court found that the
       defendant’s reliance on Raney was misplaced, because in Raney the defendant there repeatedly
       argued before the trial court that the expert’s opinion lacked an adequate foundation (id. at
       335), whereas in the case before it, the defendant stipulated that the expert’s opinion was
       admissible. Id. at 333. Our supreme court held that by failing to object at trial and, instead,
       stipulating to the admissibility of the expert’s opinion, the defendant waived the argument that
       the expert’s opinion lacked an adequate foundation. Id. at 335-37. Our supreme court’s opinion
       in Bush did not address the issue here, whether outright reversal is required when evidence is
       erroneously admitted over the defense objection, and when the remaining, properly admitted
       evidence is insufficient to prove a defendant’s guilt. Importantly, Bush did not overrule the
       earlier supreme court precedent holding that in the case of improperly admitted evidence, the
       reviewing court should consider whether any rational trier of fact could find defendant guilty
       beyond a reasonable doubt after viewing all the evidence, including the improperly admitted
       evidence, in the light most favorable to the State. Olivera, 164 Ill. 2d at 393-97. When any
       rational trier of fact could so find, the case should be remanded for a new trial. Id. at 396.
       Supreme court cases subsequent to Bush continue to follow this mode of analysis when



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       determining whether to remand for a new trial where evidence was improperly admitted. See
       Lopez, 229 Ill. 2d at 367-68; McKown, 236 Ill. 2d at 311.
¶ 54       In Hagberg, the defendant, Patrick Hagberg, was convicted of the unlawful possession of a
       controlled substance. Hagberg, 192 Ill. 2d at 30. On appeal, our supreme court held that the
       evidence at the defendant’s trial was vague and speculative with regard to the identity of the
       recovered substance and, thus, was insufficient to prove him guilty of unlawful possession of a
       controlled substance. Id. at 34. Our supreme court affirmed the appellate court’s outright
       reversal of the defendant’s conviction without remand. Id. at 35. However, our supreme court
       did not hold that any of the evidence was improperly admitted and, thus, Hagberg did not
       involve the kind of trial error at issue here for which remand is the appropriate remedy.

¶ 55                                       IV. CONCLUSION
¶ 56       For the foregoing reasons, we reverse defendant’s conviction of driving with an alcohol
       concentration of 0.08 or more and remand for a new trial. As a result of our disposition of this
       case, we need not address the other arguments on appeal, including whether or not the
       electronic certification was admissible as a self-authenticating business record.

¶ 57      Reversed and remanded.




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