                                          2017 IL App (3d) 150750

                                  Opinion filed March 1, 2017
       _____________________________________________________________________________

                                                   IN THE

                                     APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2017

       THE PEOPLE OF THE STATE                         )       Appeal from the Circuit Court
       OF ILLINOIS,                                    )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois.
              Plaintiff-Appellee,                      )
                                                       )       Appeal No. 3-15-0750
              v. 	                                     )       Circuit No. 15-DT-291

                                                       )

       DAMIEN ACEVEDO,                                 )       Honorable

                                                       )       Raymond A. Nash,
              Defendant-Appellant.                     )       Judge, Presiding.

       _____________________________________________________________________________

             JUSTICE O’BRIEN delivered the judgment of the court, with opinion. 

             Justice Carter concurred in the judgment and opinion. 

             Justice Schmidt specially concurred, with opinion. 

       _____________________________________________________________________________

                                                  OPINION


¶1            The defendant, Damien Acevedo, appealed the denial of his petition to rescind a statutory

       summary suspension after being charged with driving under the influence.


¶ 2	                                               FACTS

¶3            On March 5, 2015, the defendant was arrested for driving under the influence. On March

       16, 2015, the defendant filed a petition to rescind the statutory summary suspension on the basis

       that the arresting officer did not have reasonable grounds to believe that the defendant was
     driving under the influence of alcohol. 1 On March 20, 2015, and again on March 31, the trial

     court ordered the State to turn over the squad car video to the defendant.

¶4           Having not received the squad car video, on June 1, 2015, the defendant filed a motion

     for sanctions due to a discovery violation. At the hearing on the motion, the arresting officer,

     Carrie Arvidson, testified that the video did exist at one time. After the defendant’s arrest, she

     made a copy of the DVD from the recording system in her squad car and turned it in with her

     report. However, it was later found that the DVD was cracked and would not play. At that time,

     Arvidson attempted to recover the video of the traffic stop from her squad car system, but it had

     been recorded over. The trial court found that a discovery violation had occurred and, as a

     sanction, imputed that the defendant had sustained his burden of proof and shifted the burden to

     the State to show cause why the suspension should be sustained. The trial court declined to bar

     the testimony of Arvidson as a sanction.

¶5           Arvidson testified that she was an Illinois state patrol trooper who responded to an

     automobile crash on the night of March 5, 2015. She approached the defendant’s vehicle and

     noticed a strong odor of alcoholic beverage. She also noted that the defendant had difficulty

     removing his license from his wallet. Arvidson testified that the defendant told her he had been

     at a union meeting and that he had a few beers. Arvidson escorted the defendant out of his

     vehicle, and she noticed that he was stumbling and swaying. Arvidson performed field sobriety

     tests, which the defendant did not perform successfully. Arvidson then offered the defendant a

     portable breath test (PBT), which he agreed to. In establishing the foundation for the PBT,

     Arvidson testified that the machine was turned in to be calibrated by another officer. The trial

     court found that there was a proper foundation for the PBT and allowed Arvidson to testify that
             1
              The defendant also petitioned to rescind the statutory summary suspension on the basis that he was not
     properly warned in accordance with the Illinois Vehicle Code (625 ILCS 5/1-1-1 et seq. (West 2012), but that
     ground was withdrawn prior to the hearing.

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       the result of the PBT was 0.183. The defendant testified that he was not under the influence of

       alcohol, although he had had 4 to 5 beers at a union meeting, and that he had suffered head

       trauma in the accident.

¶6             The trial court denied the defendant’s petition to rescind. The trial court found that

       defense counsel’s arguments regarding the foundation for the PBT went to the weight of the

       evidence, and it considered the result, along with the other evidence of intoxication, in

       concluding that there was probable cause to arrest the defendant. The defendant’s motion to

       reconsider was denied.

¶7                                                ANALYSIS

¶8             The defendant argues that the trial court erred by not barring the testimony of the

       arresting officer as sanctions for a discovery violation. We review a trial court’s ruling regarding

       sanctions for an abuse of discretion. People v. Schambow, 305 Ill. App. 3d 763, 766 (1999).

¶9             There is no dispute that there was a discovery violation: the State was ordered to turn

       over a DVD of the defendant’s traffic stop, but it did not do so because the DVD was accidently

       destroyed after the stop. The defendant argues that, as a sanction, the arresting officer should

       have been barred from testifying to the events that would have been seen on the DVD. The State

       argues that the trial court properly exercised its discretion in crafting a sanction appropriate to

       the situation.

¶ 10           A motorist whose driving privileges have been summarily suspended may request a

       judicial hearing to seek rescission of the suspension. 625 ILCS 5/2-118.1 (West 2012). Relevant

       to this case, one ground upon which the summary suspension should be rescinded is that the

       arresting officer did not have reasonable grounds to believe that the motorist was under the

       influence of alcohol, drugs, or both. 625 ILCS 5/2-118.1(b)(2) (West 2012); People v. Ehley, 381


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       Ill. App. 3d 937, 942 (2008). A hearing on a petition to rescind a statutory summary suspension

       is a civil proceeding in which the motorist bears the burden of proof of providing a prima facie

       case for rescission. People v. Gutierrez, 2015 IL App (3d) 140194, ¶ 14. If the motorist

       establishes a prima facie case, the burden shifts to the State to come forward with evidence

       justifying the suspension. People v. Smith, 172 Ill. 2d 289, 295 (1996).

¶ 11          The defendant cites to People v. Kladis, 2011 IL 110920, as support for his argument that

       the officer’s testimony regarding the time captured on the unavailable video should be barred. In

       Kladis, the trial court barred the arresting officer’s testimony from five seconds before the stop

       until the defendant was taken away for the arrest, the timeframe covered by the squad car video

       that was not preserved. Id. ¶ 11. In upholding that sanction, the supreme court found that there

       was no indication that the trial court abused its discretion. Id. ¶ 46. The record indicated that the

       trial court chose its sanctions from a spectrum of available options and narrowly tailored its

       sanction. Id. ¶ 45. Despite the defendant’s argument that Kladis stands for the proposition that

       testimony must be barred whenever there is a discovery violation that results in missing

       evidence, we conclude that Kladis does not dictate such a hard and fast rule. See People v.

       Moore, 2016 IL App (1st) 133814, ¶ 41 (trial court’s decision not to bar testimony regarding

       missing photo arrays as a sanction for the discovery was not an abuse of discretion).

¶ 12          In this case, the trial court considered available options for sanctions and determined that

       imputing that the defendant had met his burden of proof regarding a prima facie case for

       rescission was the appropriate sanction, rather than completely barring the arresting officer’s

       testimony regarding the stop. We conclude that the imposed sanction was not an abuse of

       discretion.




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¶ 13          The defendant also contends that the results of the PBT should not have been admitted

       because the PBT lacked foundation. The State argues that since the burden shifted to the State

       because of the discovery violation, the defendant never presented evidence constituting a

       prima facie case casting doubt on the accuracy of the PBT. We review evidentiary rulings for an

       abuse of discretion. People v. Taylor, 2011 IL 110067, ¶ 27.

¶ 14          The defendant acknowledges the hybrid nature of the case because the trial court shifted

       the burden as a sanction for the discovery violation. However, the defendant contends that the

       sanction imposed by the trial court brought into question whether the arresting officer had

       reasonable grounds to arrest the defendant for driving under the influence, including casting

       doubt on the PBT as part of the reasonable grounds. Thus, the defendant contends that there was

       a need for a proper foundation for the PBT under People v. Orth, 124 Ill. 2d 326, 331-32 (1988).

¶ 15          Under section 11-501.5 of the Illinois Vehicle Code, a PBT, like other field sobriety tests,

       is admissible to establish that probable cause existed to arrest the defendant for driving under the

       influence, even though the PBT is not admissible as evidence of intoxication in a criminal

       proceeding. 625 ILCS 5/11-501.5 (West 2012); People v. Rozela, 345 Ill. App. 3d 217, 226

       (2003); People v. Rose, 268 Ill. App. 3d 174, 178-79 (1994). Orth involved a Breathalyzer,

       which is more accurate than a PBT. Orth, 124 Ill. 2d at 338. The Second District in Rozela,

       however, suggested that the State would have to provide the same foundation as a Breathalyzer

       for the admission of the PBT into evidence under Orth if the defendant presented a prima facie

       case that the result did not show legal intoxication or accurately reflect the defendant’s blood

       alcohol content. Rozela, 345 Ill. App. 3d at 228.

¶ 16          As a result of the discovery sanction, the burden of proof shifted to the State to show

       probable cause for the stop. In order to lay a proper foundation for the admission of the results of


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       the PBT, the witness must testify that the PBT machine is one approved for use by police

       officers, and that the device was checked for accuracy every 93 days by a person specially

       trained to perform such tasks. 20 Ill. Adm. Code 1286.240 (2015); 20 Ill. Adm. Code 1286.250

       (2011). In addition, the witness must testify that the test was administered according to an

       operational procedure programmed into the instrument and that the test consisted of only one

       breath analysis reading, based on the instrument’s internal operational calculations. 20 Ill. Adm.

       Code 1286.260 (2007). The trooper’s testimony regarding the approval of the machine in

       question, as well as her administration of the test, failed to meet the foundational requirements

       for admissibility of the PBT and should have been excluded by the trial court.

¶ 17          However, we still affirm the denial of the defendant’s petition to rescind. The defendant

       sought rescission on the grounds that the officer did not have reasonable grounds to believe that

       the defendant was driving under the influence. In summary suspension proceedings, “reasonable

       grounds” is synonymous with “probable cause,” requiring a determination whether a reasonable

       person, armed with the objective knowledge possessed by the officer at the time of the arrest,

       would believe that the defendant committed the offense. People v. Fonner, 385 Ill. App. 3d 531,

       540 (2008). The officer testified that the defendant had been involved in an automobile accident.

       Upon approaching the defendant in his vehicle, the officer detected an odor of alcoholic

       beverage, and the defendant acknowledged drinking a few beers. The officer testified that the

       defendant was stumbling and swaying upon exiting his vehicle, and he did not successfully

       perform the field sobriety tests. Thus, even without considering the results of the PBT, we find

       that there was sufficient testimony from the arresting officer regarding the accident and the

       defendant’s actions to establish reasonable grounds to believe that the defendant was driving

       under the influence of alcohol.


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¶ 18                                              CONCLUSION

¶ 19          The judgment of the circuit court of Will County is affirmed.

¶ 20          Affirmed.

¶ 21          JUSTICE SCHMIDT, specially concurring.

¶ 22          I concur in the judgment. I do not join in the dicta at paragraphs 13 through 16. Since we

       affirm without consideration of the PBT, there is no need to go there. Also, the majority does not

       set out exactly what foundation was laid or what exactly it lacked. This discussion is of little

       value to attorneys, judges, or police officers.

¶ 23          While I believe the State laid a sufficient foundation for the PBT, for the reasons set forth

       above, I see no reason to waste any paper discussing it.




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