                                            2018 IL App (3d) 160124

                                 Opinion filed October 17, 2018
       _____________________________________________________________________________

                                                     IN THE

                                       APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

       THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
       ILLINOIS,                              )     of the 12th Judicial Circuit,
                                              )     Will County, Illinois.
             Plaintiff-Appellee,              )
                                              )     Appeal No. 3-16-0124
             v. 	                             )     Circuit Nos. 15-DT-636
                                              )                   15-TR-33589
       XAVIER D. CRUMP,                       )
                                              )     Honorable Raymond A. Nash,
             Defendant-Appellant.             )     Judge, Presiding.
       _____________________________________________________________________________

              JUSTICE SCHMIDT delivered the judgment of the court, with opinion. 

              Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.


                                                   OPINION

¶1            Defendant, Xavier D. Crump, appeals his conviction for driving with an alcohol

       concentration of 0.08 or higher (625 ILCS 5/11-501(a)(1) (West 2014)). He asserts that the trial

       court erred in admitting the results of his Breathalyzer test because (1) the State failed to lay the

       proper foundation to admit certain exhibits as business records and (2) regardless of whether the

       records were properly admitted, they were insufficient to certify the proper functioning of the

       Breathalyzer test. We affirm.

¶ 2	                                                 FACTS
¶3          In May 2015, the State charged defendant with driving under the influence of alcohol (id.

     § 11-501(a)(2)), driving with an alcohol concentration of 0.08 or more (id. § 11-501(a)(1)), and

     improper parking on a highway (id. § 11-1303).

¶4          The State presented the following evidence at defendant’s November 2015 bench trial.

¶5          Illinois State Trooper Brian Frank testified as follows. While on patrol at approximately

     7:50 a.m. on May 10, 2015, he observed a vehicle parked along the right shoulder of the I-55

     southbound ramp. He approached the vehicle and saw a man, who he identified as defendant,

     asleep in the driver’s seat. He could not recall whether the car was running but the keys were in

     the ignition. Upon waking, defendant’s eyes appeared “red, glassy and bloodshot” and Frank

     smelled “a strong odor of an alcoholic beverage emitting from his breath.” Defendant stated that

     he drank two beers and two mixed drinks at a bar the night before.

¶6          Trooper Frank asked defendant to perform standard field sobriety tests, including the

     horizontal gaze nystagmus, the “walk and turn” and the “one leg stand.” Defendant exhibited

     signs of intoxication during each test. As a result, Frank arrested defendant and transported him

     to the Illinois State Police headquarters. After Frank observed defendant for 20 minutes at police

     headquarters, defendant submitted to an “Intoxilizer” Breathalyzer test. Frank is certified in

     administering the Breathalyzer test. The results of that test indicated defendant had a blood

     alcohol content of 0.131. Frank then issued defendant citations for driving under the influence of

     alcohol, driving with an alcohol concentration of 0.08 or more, and improper parking on a

     highway.

¶7          As proof of defendant’s intoxication, the trial court, over defense counsel’s objections,

     admitted a number of the State’s exhibits under the business-record exception to the hearsay rule.

     Specifically, State’s exhibit No. 3 included a notarized “verified certification” letter, signed by



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     the “Keeper of Records” of the Alcohol and Substance Testing Section of the Illinois State

     Police Academy, indicating that accuracy checks were conducted on the Intox EC/IR-II

     Breathalyzer machine at issue on May 1 and June 5, 2015, and its corresponding attachments

     (electronic certification). The attachments included printouts of an “Intox EC/IR-II Scheduled

     Certification” that indicated a test date of May 1, 2015, and an “Intox EC/IR-11 Certification

     check” that indicated a test date of June 5, 2015, both of which contained the following

     notations: “System Check: Passed” and “Test Status: Success.” State’s exhibit No. 4 was an

     “Intox EC/IR-II Subject Test” dated May 10, 2015, indicating Trooper Frank administered the

     test to defendant, that defendant blew a .13 (the third decimal digit is blacked out), and

     containing “System Check: Passed” and “Test Status: Success” notations. Trooper Frank

     identified exhibit No. 4 as a printout of defendant’s Breathalyzer test created in the regular

     course of business. State’s exhibit No. 5 was the breath analysis instrument logbook from the

     State Police headquarters showing defendant’s test results from the Breathalyzer machine as

     .131. It also contained a June 5, 2015, entry with a “certified accurate” notation by a Trooper D.

     Sheldon. Trooper Frank identified exhibit No. 5 as a logbook for the Intox Breathalyzer machine

     kept in the regular course of business.

¶8          At the conclusion of the State’s evidence, defense counsel moved for a directed verdict,

     again, asserting that the documents related to the Breathalyzer machine lacked proper

     foundation. The trial court denied the motion. Following arguments, the court found defendant

     guilty of driving with an alcohol concentration of 0.08 or more and improper parking but not

     guilty of driving under the influence of alcohol. The court recognized its “somewhat incongruous

     conclusions,” especially since the Breathalyzer results supported a finding of guilt on both

     charges, but the court opined, “While I certainly see evidence of impairment, I also see



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       considerable evidence of non impairment that would, in regards to driving under the influence

       (a)(2) charge, would cause me pause.” In particular, the court noted that defendant exhibited

       “reasonable balance and physical acuity” during the field sobriety tests such that the court “could

       not draw a great deal of overwhelming weight to any evidence of impairment from the field

       sobriety tests.”

¶9             Defense counsel timely filed a motion to reconsider the verdict or, alternatively, for a

       new trial. Counsel, again, asserted that the trial court erred in admitting the exhibits relating to

       the Breathalyzer machine because the State failed to lay the proper foundation. The court denied

       the motion. Thereafter, it sentenced defendant to 24 months’ court supervision, fines, court costs,

       and 60 hours of community service.

¶ 10           Defendant appeals.

¶ 11                                                ANALYSIS

¶ 12           Defendant asserts that the trial court erred in admitting the results of his Breathalyzer test.

       Although defendant specifically delineates only one issue on appeal, his argument section

       presents two issues. Specifically, he argues—in reverse order—that the results of his

       Breathalyzer test should not have been admitted because (1) the State failed to lay the proper

       foundation to admit the electronic certification as a business record and (2) regardless of whether

       the electronic certification records were properly admitted business records, they were

       “insufficient to certify the proper functioning of the breathalyzer machine.”

¶ 13                                          A. Standard of Review

¶ 14           At the outset, the parties disagree on the appropriate standard of review. Defendant

       asserts that the issue of whether the State laid a proper foundation to introduce the results of his

       Breathalyzer test is a legal question subject to de novo review. In support, he cites State v.



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       Eagletail, 2014 IL App (1st) 130252, ¶ 19, and People v. Claudio, 371 Ill. App. 3d 1067, 1069

       (2007), both of which held that a de novo standard of review applies in determining whether the

       State met the foundational requirements for the introduction of Breathalyzer tests results as set

       forth in People v. Orth, 124 Ill. 2d 326 (1988). In contrast, the State cites People v. Torruella,

       2015 IL App (2d) 141001, ¶ 24, in support of its contention that an abuse of discretion standard

       applies. In Torruella, the court found the abuse of discretion standard appropriate for

       determining whether the State satisfied the foundational requirements of the business records

       exception to the hearsay rule. Id.

¶ 15          Because we are actually presented with two separate issues here, both standards of review

       are applicable. First, we will determine whether the trial court abused its discretion in admitting

       the electronic certification records proffered by the State. A trial court abuses its discretion only

       when its ruling is “ ‘arbitrary, fanciful, or unreasonable’ or ‘no reasonable [person] would take

       the view adopted by the trial court.’ ” State v. Eagletail, 2014 IL App (1st) 130252, ¶ 26 (quoting

       People v. Donoho, 204 Ill. 2d 159, 182 (2003)). If we find the records were properly admitted,

       we will then consider de novo whether they establish that the Breathalyzer machine at issue “was

       tested for accuracy and working properly on the date the test was administered to the

       [d]efendant” such that the results of defendant’s Breathalyzer test were properly considered.

¶ 16                             B. Admissibility of the “Certification Records”

¶ 17          Defendant maintains that the State failed to lay a proper foundation for the admission of

       the electronic certification records. The State disagrees, asserting that the records were self-

       authenticating business documents under Illinois Rules of Evidence 902 and 803. Notably,

       defendant does not argue that the State failed to lay the proper foundation to admit the printout of




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       his test results or the logbook documenting his result. Thus we consider only the propriety of

       admitting the electronic certification records, i.e., State’s exhibit No. 3.

¶ 18           Illinois Rule of Evidence 902 (Ill. R. Evid. 902 (eff. Jan. 1, 2011)), provides that certain

       evidence is self-authenticating and, as such, extrinsic evidence of its authenticity is not required

       where the document constitutes, in relevant part:

                       “(1) Domestic Public Documents Under Seal. A document bearing

                       a seal purporting to be that of the United States, or of any State,

                       district, Commonwealth, territory, or insular possession thereof, or

                       the Panama Canal Zone, or the Trust Territory of the Pacific

                       Islands, or of a political subdivision, department, officer, or agency

                       thereof, and a signature purporting to be an attestation or

                       execution.

                                                         ***

                       (11) Certified Records of Regularly Conducted Activity. The

                       original or a duplicate of a record of regularly conducted activity

                       that would be admissible under Rule 803(6) if accompanied by a

                       written certification of its custodian or other qualified person that

                       the record

                       (A) was made at or near the time of the occurrence of the matters

                       set forth by, or from information transmitted by, a person with

                       knowledge of these matters;

                       (B) was kept in the course of the regularly conducted activity; and




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                       (C) was made by the regularly conducted activity as a regular

                       practice.” (Emphases in original.) Id.

        In turn, Illinois Rule of Evidence 803(6) (Ill. R. Evid. 803(b) (eff. Apr. 26, 2012)), which

        governs records of regularly conducted business activities, provides:

                       “A memorandum, report, record, or data compilation, in any form,

                       of acts, events, conditions, opinions, or diagnoses, made at or near

                       the time by, or from information transmitted by, a person with

                       knowledge, if kept in the course of a regularly conducted business

                       activity, and if it was the regular practice of that business activity

                       to make the memorandum, report, record or data compilation, all

                       as shown by the testimony of the custodian or other qualified

                       witness, or by certification that complies with Rule 902(11), unless

                       the source of information or the method or circumstances of

                       preparation indicate lack of trustworthiness, but not including in

                       criminal cases medical records. The term ‘business’ as used in this

                       paragraph includes business, institution, association, profession,

                       occupation, and calling of every kind, whether or not conducted for

                       profit.” Id.

¶ 19	          After reviewing the record, we find that the trial court did not abuse its discretion in

        admitting the electronic certification documents. Initially, we reject defendant’s contention that

        the records were not admissible because no one “familiar with the business and its mode of

        operation testif[ied] at trial as to the manner in which the document was prepared.” Self-

        authenticating business records do not require testimony at trial. Rather, self-authenticating



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       business records need only be accompanied by written certification from the record’s custodian

       or other “qualified person” attesting to the three foundational requirements for business records

       described above. See Ill. R. Evid. 902(11) (eff. Jan. 1, 2011).

¶ 20          As indicated, the “verified certification” letter at issue here contains an official seal of the

       Illinois State Police, is signed by the “Keeper of Records” of the Alcohol and Substance Testing

       Section of the Illinois State Police Academy, and indicates that the accuracy checks—which are

       attached to the letter—were conducted on the Intox EC/IR-II Breathalyzer machine at issue on

       May 1 and June 5, 2015. The letter also states that (1) “[t]he accuracy checks were made at or

       near the time of occurrence of the matters set forth”; (2) “[t]he accuracy checks were kept in the

       course of the regularly conducted activity”; and (3) “[t]he accuracy checks were made by the

       regularly conducted activity as a regular practice.” Accordingly, the State satisfied the

       foundational requirements necessary for admitting the electronic certification as self-

       authenticated business records.

¶ 21          We also reject defendant’s assertion in his reply brief that the records should not have

       been admitted because “[t]he method and circumstances of preparation of the ‘verified

       certification’ were untrustworthy.” In support of his contention, defendant notes that (1) the May

       1, 2015, “Scheduled Certification” “does not chronicle who created the document”; (2) the June

       5, 2015, “Certification Check” does not explain who operator “Sheldon” is; (3) the logbook does

       not contain an entry related to an accuracy check being conducted on May 1, 2015; and (4) the

       “purported result of [his Breathalyzer] test is blacked out at the third digit which again calls into

       question all [of] the documents’ trustworthiness.” As indicated above, defendant did not

       challenge the admission of the logbook or the result of his Breathalyzer test in his initial brief

       and may not do so in his reply brief. See S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (points not



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       argued in initial brief shall not be raised in the reply brief). Moreover, defendant fails to

       elaborate on how the absence of certain information on the electronic certification documents

       renders them untrustworthy. As such, we find no error in the admission of the electronic

       certification documents.

¶ 22              C. Foundation Requirements for the Admission of Breathalyzer Test Results

¶ 23          Defendant also argues that the trial court erred in admitting the results of his Breathalyzer

       test because the State “failed to certify that the machine from which [his] test results were

       derived was accurate and properly calibrated at the time of [his] test.”

¶ 24          The results of a Breathalyzer test may be admitted if the State can show:

                      “(1) evidence that the tests were performed according to the

                      uniform standard adopted by the Illinois Department of Public

                      Health, (2) evidence that the operator administering the tests was

                      certified by the Department of Public Health, (3) evidence that the

                      machine used was a model approved by the Department of Health,

                      was tested regularly for accuracy, and was working properly, (4)

                      evidence that the motorist was observed for the requisite 20

                      minutes prior to the test and, during this period, the motorist did

                      not smoke, regurgitate, or drink, and (5) evidence that the results

                      appearing on the ‘printout’ sheet can be identified as the tests

                      given to the motorist.” Orth, 124 Ill. 2d at 340.

       Only the third foundational factor is at issue here, i.e., whether the Breathalyzer machine was

       tested for accuracy and working properly on the date it was administered to defendant.




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       Defendant raises no issue regarding whether the Breathalyzer machine was a model approved by

       the Department of Health.

¶ 25          To establish the accuracy of the Breathalyzer machine and that it worked properly on the

       date of the test, the State must show that “the [accuracy] test was performed in accordance with

       section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a) (West [2014])) and the

       regulations promulgated by the Illinois Department of State Police.” People v. Clairmont, 2011

       IL App (2d) 100924, ¶ 12 (citing Orth, 124 Ill. 2d at 340). “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” so long as the Breathalyzer test

       was performed “ ‘according to standards promulgated by the Department of the State Police.’ ”

       People v Smith, 2015 IL App (1st) 122306, ¶ 32 (quoting 625 ILCS 5/11-501.2(a) (West 2010)).

       Section 1286.200 of the Department’s regulations provides for a rebuttable presumption that a

       Breathalyzer machine accurately recorded the subject test “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.” Smith, 2015

       IL App (1st) 122306, ¶ 33 (citing 20 Ill. Adm. Code 1286.200 (2009)). The Department’s

       standards also require that either a breath analysis technician or an “automated system” perform

       accuracy tests “at least once every 62 days” and that the results are “recorded in the instrument’s




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        logbook or internal memory, or[, if performed remotely,] in the central repository.” 20 Ill. Adm.

        Code 1286.230 (2014).

¶ 26            Defendant relies on Smith, 2015 IL App (1st) 122306, in support of his contention that

        the State failed to prove a necessary element for admission of his Breathalyzer test result because

        neither the verified certification proffered by the State, nor any other evidence submitted at trial,

        showed that “the [Breathalyzer] machine was certified as accurate.”

¶ 27            In Smith, the trial court allowed the State to introduce results of the defendant’s

        Breathalyzer test which resulted in his conviction for driving with an alcohol concentration of

        0.08 or more. Id. ¶¶ 21, 24. Specifically, the State introduced a notarized letter, signed by the

        “Keeper of Records” of the Illinois State Police Alcohol and Substance Testing Section,

        indicating “the Breathalyzer machine had been tested for accuracy on March 1, 2010, and April

        1, 2010.” The accuracy tests attached to the letter provided numerical data but provided no

        interpretation of that data and failed to state whether the Breathalyzer machine passed the

        accuracy tests. Id. ¶ 4.

¶ 28	           On appeal, the defendant argued that the trial court erred in allowing the result of his

        Breathalyzer test into evidence because the State failed to lay an adequate foundation for its

        admission. Id. ¶ 29. He maintained “that although the electronic certification admitted into

        evidence state[d] 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 list[ed] the numerical results of the accuracy tests without providing

        any interpretation of those results.” Id. ¶ 40. He further noted that “[t]he electronic certification

        does not state that the Breathalyzer machine passed the accuracy tests, performed within the




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       accuracy tolerance, and was, in fact, accurate,” nor did anyone testify as to the accuracy of the

       Breathalyzer test results. Id.

¶ 29           The appellate court agreed with the defendant, noting that although “[t]he electronic

       certification admitted into evidence contains raw data from the accuracy tests *** 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.”

       Id. ¶ 43. The court held:

                               “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.” Id. ¶ 44.

¶ 30           We find this case distinguishable from Smith. Here, the accuracy checks attached to the

       verified certification letter contain more than just raw data. In particular, the May 1, 2015,

       “Scheduled Certification”—likely an automated system check that would be stored in the central

       repository rather than the breath analysis instrument logbook—indicates a “dry gas target” of

       .079, and contains the following notations: “System Check: Passed” and “Test Status: Success.”

       Likewise, the June 5, 2015, certification performed by “Sheldon” indicates a “dry gas target” of

       .080 and also contains “System Check: Passed” and “Test Status: Success” notations. In addition,

       Trooper Sheldon certified the Breathalyzer machine as accurate in the logbook on June 5, 2015.

¶ 31           In sum, the State’s exhibits, which were properly admitted into evidence, clearly show

       that the Department of State Police regularly tested the Breathalyzer machine for accuracy and



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       that it worked properly on the date defendant submitted to the test. As such, the results of

       defendant’s Breathalyzer test were properly admitted.

¶ 32                                           CONCLUSION

¶ 33          For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 34          Affirmed.




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