{
  "id": 8499361,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT G. DUENSING, Defendant-Appellee",
  "name_abbreviation": "People v. Duensing",
  "decision_date": "1985-11-25",
  "docket_number": "No. 3\u201485\u20140060",
  "first_page": "587",
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  "last_updated": "2023-07-14T16:36:50.288778+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "HEIPLE, P.J., and BARRY, J., concur."
    ],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT G. DUENSING, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE WOMBACHER\ndelivered the opinion of the court:\nThe defendant, Robert G. Duensing, was arrested for driving under the influence of alcohol (DUI), improper lane usage, and speeding. The court granted the defendant\u2019s motion in limine regarding trial admission of breath analysis test results. The State brought this appeal, certifying that the court\u2019s order substantially impaired its ability to prosecute.\nPrior to his trial, the defendant filed his document captioned \u201cMotion to Suppress and Motion in Limine.\u201d The motion did not specify its grounds. At the hearing on the filing, the defendant stated that the motion to suppress challenged whether there was probable cause for the defendant\u2019s arrest and that the motion in limine challenged the breathalyzer test procedure.\nThe defendant presented the testimony of the police officers who arrested him and administered the breathalyzer test. According to the uncontroverted testimony, the arresting officer stopped the defendant as he observed the defendant driving. The officer arrested the defendant following field sobriety tests. At the scene of the defendant\u2019s arrest, the officer read the defendant the implied-consent warning concerning failure to submit to a breath analysis test. (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 \u2014 501.1(c).) The defendant stated his understanding of the warning and stated he would not submit. Based on a local police policy to allow a DUI arrestee 30 minutes to decide to take a breath analysis, the arresting officer advised the defendant that he had 30 minutes in which to decline the test.\nThereafter, the officer transported the defendant to police headquarters where the defendant was issued a citation for DUI. There, the officer again gave the implied-consent warning and the defendant agreed to take the breath analysis test. The defendant\u2019s test results apparently showed his blood-alcohol content at .18. The officers testified that the breath analysis machine was certified by the Illinois Department of Public Health (DPH); that the administering officer was trained and licensed for operating the test equipment; and that prior to the defendant\u2019s test the officers observed the defendant for 20 minutes.\nRegarding test procedure, the administering officer testified that prior to taking the defendant\u2019s breath analysis he warmed and pretested the machine for impurities. He further testified that in the test he followed his operational checklist. He was unsure whether the procedure therein was based upon procedures suggested by the breath analysis machine manufacturer. The officer stated that his procedures were based upon DPH standards, but he was unsure whether they were approved by the DPH.\nIn his closing argument on the motion, the defendant conceded that there was probable cause for his arrest. He argued, however, that the court should grant his motion in limine on the admissibility of the breath analysis test results. In a minute order, the court granted the defendant\u2019s motion without specific findings. The State brought the instant appeal under Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)).\nThe defendant has filed a motion to dismiss the appeal. The State has filed objections to the motion. We now address both filings taken with the case. The defendant\u2019s first argument for dismissal regards the State\u2019s failure to file its notice of appeal within 30 days of the order appealed from. That argument is meritless, as we exercised our authority under Supreme Court Rule 606(c) (87 Ill. 2d R. 606(c)) to grant the State\u2019s properly supported motion for leave to file a late notice of appeal. The defendant\u2019s second argument, that the State has failed to file a certificate of impairment under People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501, is similarly meritless. The State has filed its certificate and included it in the record.\nThe defendant\u2019s final argument for dismissal is that the court\u2019s order was not appealable by the State. The defendant relies on People v. McCollins (1984), 126 Ill. App. 3d 1083, 468 N.E.2d 196, in asserting that, as the court\u2019s order granted a motion in limine which was not a suppression order, the State may not appeal under Supreme Court Rule 604(a). We disagree.\nIn McCollins we considered the appealability of the court\u2019s grant of the defendant\u2019s motion in limine. In granting the defendant Mc-Collin\u2019s motion, the trial court held that its prior refusal to suspend the defendant\u2019s license following an implied-consent hearing required that evidence of the defendant\u2019s refusal to submit to breath analysis be suppressed at the defendant\u2019s DUI trial. In McCollins, we did not hold, as the defendant suggests, that a circuit court\u2019s grant of a motion labeled \u201cin limine\" may not be appealed by the State. Not the label of the motion, but the substantive effect of the court\u2019s granting order controls appealability under Rule 604(a). The court\u2019s order here is factually distinct from that in McCollins. Despite its label, its effect is to suppress evidence based on the breath analysis test procedures followed in the defendant\u2019s case. The order is properly' appealable by the State. The defendant\u2019s motion to dismiss the appeal is denied.\nOn the merits, the State argues that the trial court\u2019s order was an abuse of discretion as being both erroneous and against the manifest weight of the evidence. More specifically, the State argues that each of the grounds that the defendant argued to support his motion was meritless. In response, the defendant asserts that the trial court\u2019s order was properly based upon his arguments before that court.\nThe defendant first argued in the trial court that under section 11 \u2014 501.1(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 \u2014 501.1(c)), his initial refusal of a breath analysis test prohibited the later test. Section 11 \u2014 501.1(c) provides, in pertinent part, that if a person under arrest for DUI refuses, upon the request of a law enforcement officer, to submit to a breath analysis test, no test shall be given.\nAs the State argues, in People v. Frazier (1984), 123 Ill. App. 3d 563, 463 N.E.2d 165, under facts similar to those before us, the Fourth District decided that section 11 \u2014 501.1(c) prevents only involuntary breath analysis testing, not the administration of a breath analysis test to a driver who has changed his mind and later has voluntarily decided to submit to a test. We agree with the Frazier analysis. Under that analysis we find that despite the defendant\u2019s initial refusal to submit to breath analysis and despite the fact that the defendant\u2019s submission to the test was preceded by the arresting officer\u2019s second request, because there is no evidence that the defendant\u2019s test submission was involuntary, the terms of section 11\u2014 501.1(c) do not support the exclusion of the defendant\u2019s test results.\nThe defendant argued additionally, in the trial court, that the motion in limine should be granted because the State failed to prove that the test procedures followed in the instant case were based on the breath analysis equipment manufacturer\u2019s recommendations and approved by the DPH, as required by Rule 6.01(d) of the DPH\u2019s \u201cStandards for the Operation of Approved Breath Analysis Instruments.\u201d On appeal, the State challenges that argument, noting that the defendant presented the trial court no evidence of inappropriate test procedure. We agree with the State.\nIn support of his motion in limine the defendant evoked testimony from the specially trained, test-administering officer that the officer was unaware whether his usual breath analysis test procedures followed the test equipment manufacturer\u2019s recommendations or had DPH approval. However, the officer testified that the instant breath analysis was performed according to his department\u2019s test procedures checklist. He also testified that those procedures followed were based upon DPH standards. Given that uncontroverted testimony, and absent any evidence that the procedures followed either were contrary to the manufacturer\u2019s recommendations or were not approved by the DPH, Rule 6.01(d) presents no basis for the court\u2019s order. See People v. Crawford (1974), 23 Ill. App. 3d 398, 318 N.E.2d 743.\nThe defendant\u2019s evidence supporting his motion in limine also questioned whether the State had complied with DPH Rule 6.01(a) prior to administering the breath analysis. Rule 6.01(a) requires that before one submits to breath analysis, he must be continuously observed for 20 minutes without ingesting food, alcohol, or drink; regurgitating; vomiting; or smoking. As the defendant does not cite on appeal that basis for his motion and as the record shows no reason to question the State\u2019s compliance with the rule, we need not address it more fully here.\nWe find no basis for the court\u2019s decision to suppress the defendant\u2019s breath analysis test results. Consequently, it must be reversed as manifestly erroneous. People v. Gardner (1984), 121 Ill. App. 3d 464, 459 N.E.2d 676.\nAccordingly, the judgment of the circuit court of Kankakee County is hereby reversed. The cause is remanded for further proceedings consistent with this decision.\nReversed and remanded.\nHEIPLE, P.J., and BARRY, J., concur.",
        "type": "majority",
        "author": "JUSTICE WOMBACHER"
      }
    ],
    "attorneys": [
      "William Herzog, State\u2019s Attorney, of Kankakee (John X. Breslin and Peter M. Tumminaro, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.",
      "Joseph C. Polito, of Kozlowski, Polito & Feeley, of Joliet, for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT G. DUENSING, Defendant-Appellee.\nThird District\nNo. 3\u201485\u20140060\nOpinion filed November 25, 1985.\nWilliam Herzog, State\u2019s Attorney, of Kankakee (John X. Breslin and Peter M. Tumminaro, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\nJoseph C. Polito, of Kozlowski, Polito & Feeley, of Joliet, for appellee."
  },
  "file_name": "0587-01",
  "first_page_order": 609,
  "last_page_order": 613
}