{ "id": 3588233, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. MARLEY, Defendant-Appellant", "name_abbreviation": "People v. Marley", "decision_date": "1988-11-15", "docket_number": "No. 5\u201488\u20140095", "first_page": "401", "last_page": "406", "citations": [ { "type": "official", "cite": "176 Ill. App. 3d 401" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "513 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1135" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3648533 ], "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0632-01" ] }, { "cite": "124 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218359 ], "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0326-01" ] }, { "cite": "6 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "289 Ill. App. 167", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3198356 ], "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-app/289/0167-01" ] } ], "analysis": { "cardinality": 549, "char_count": 9972, "ocr_confidence": 0.784, "pagerank": { "raw": 1.059989733099374e-07, "percentile": 0.5563990410251718 }, "sha256": "62c41fb493220335d948f62b92cefbcc0a003952628739f4c58519d341ac09da", "simhash": "1:0f0c079b3b72e071", "word_count": 1615 }, "last_updated": "2023-07-14T15:43:30.106689+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. MARLEY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE HARRISON\ndelivered the opinion of the court:\nDefendant, James R. Marley, appeals from a judgment of the circuit court of Montgomery County denying his request for rescission of the summary suspension of his driver\u2019s license imposed pursuant to section 11 \u2014 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11 \u2014 501.1). As grounds for his appeal, Marley argues that the suspension cannot stand because: (1) he was not served with notice of the suspension \u201cimmediately\u201d as required by section 11 \u2014 501.l(f\u20141) of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11\u2014 501.l(f\u2014 1)), and (2) the circuit court did not require the State to lay a foundation for admission of the results of his breath test at the rescission hearing. For the reasons which follow, we find these arguments to be without merit. We therefore affirm.\nThe record shows that on the evening of Friday, January 1, 1988, defendant was driving through the town of Nokomis, Illinois, in his Ford pickup truck. He stopped at a stop sign at the intersection of South Maple and Route 16, \u201crevved\u201d the truck\u2019s engine, then \u201ctook off trying to spin its tires\u201d as he turned right from South Maple onto Route 16. In the course of executing this turn, defendant lost control of his vehicle. The truck \u201cjumped\u201d the curb and struck a light pole. The force of the collision was so great that the pole was knocked off its base and into an awning hung from a nearby building.\nAfter the collision, defendant backed his truck off the sidewalk where it had come to rest, reentered the roadway, and proceeded west down Route 16. All of these events were witnessed by Officer Keith Hancock of the Nokomis police department, who activated the light bar on his police cruiser and gave pursuit as defendant attempted to leave the scene. Hancock succeeded in causing defendant to pull over to the side of the road. He then approached defendant\u2019s truck and asked defendant to exit the vehicle and to exhibit his driver\u2019s license.\nAs Hancock spoke with defendant, he detected the odor of alcohol on defendant\u2019s breath. He also observed that defendant\u2019s speech was slow and that defendant \u201cwas unsure of what he was doing.\u201d Hancock thereupon decided to arrest defendant for \u201creckless driving, DUI and illegal consumption by a minor\u201d and took him into custody.\nAfter transporting defendant to the Nokomis police station, Hancock issued warnings to him regarding the possible summary suspension of his driver\u2019s license pursuant to section 11 \u2014 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11 \u2014 501.1). Those warnings conformed to the requirements imposed by section 11\u2014 501.1(c) of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(c)) in situations where, as here, an individual is charged with driving under the influence of alcohol. According to Hancock, the warnings were read to defendant verbatim from a department form which Hancock had sworn to and signed. Defendant was also apparently given a copy of the form containing the warnings to read for himself.\nAfter receiving the requisite statutory warnings, defendant was taken to the Montgomery County jail in Hillsboro, where the proper equipment was available for administering a breath-test analysis. Defendant was asked if he would submit to such a test, and he consented. The test was then administered by Joseph W. LeBeane, an Illinois State trooper, using a machine called an Intoxilvzer. The test disclosed a blood-alcohol concentration of .19, which exceeded the legal limit.\nOfficer Hancock then proceeded to complete the necessary paperwork on defendant\u2019s arrest, including a notice of statutory summary suspension of defendant\u2019s driver\u2019s license pursuant to section 11 \u2014 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11 \u2014 501.1). Before Hancock could serve a copy of the notice on defendant, however, defendant was able to post bond and, unknown to Hancock, he was released from custody by the jailer at the Montgomery County facility. Following repeated efforts to contact defendant so that he could be given the notice, service was finally accomplished the following Monday, January 4.\nDefendant promptly requested the circuit court of Montgomery County to rescind the statutory summary suspension. (See Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2 \u2014 118.1.) Following an evidentiary hearing, that request was denied, and defendant now appeals. On this appeal, as he did before the trial court, defendant contends that the suspension cannot stand because the delayed service of notice on him did not comport with section 11 \u2014 501.l(f\u2014 1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11 \u2014 501.l(f\u2014 1)), which provides:\n\u201cEffective January 1, 1987 and thereafter, the law enforcement officer submitting the sworn report under paragraph (d) shall serve immediate notice of the statutory summary suspension on the person ***.\u201d (Emphasis added.)\nDefendant\u2019s position seems to be that the term \u201cimmediate\u201d as used in this statute should be construed as meaning \u201cinstantly\u201d or \u201cat once\u201d or \u201cwithout interval of time,\u201d and that the three-day delay between his arrest and the service of the notice upon him rendered that service untimely and therefore ineffective.\nThe State, for its part, argues that the three-day delay should not operate to invalidate the statutory summary suspension here because defendant was fully advised by Officer Hancock of the possible consequences of the breathalyzer test or the refusal to submit to such a test, i.e., that his driver\u2019s license could be suspended, and the delay resulted in no prejudice to him. We need not address this contention, however, because there is a more fundamental defect in defendant\u2019s analysis.\nIn our view, the basic flaw in defendant\u2019s position is that he interprets the statutory term \u201cimmediate\u201d too narrowly. The courts of this State have long held that where an act is required to be done \u201cimmediately,\u201d whether the obligation is imposed by law or by contract, this means that \u201cthe performance shall be with due and reasonable diligence in view of the circumstances of the case, and without unnecessary or unreasonable delay.\u201d (Anderson v. Steinle (1937), 289 Ill. App. 167, 171, 6 N.E.2d 879.) By this definition, service of the notice of the statutory summary suspension was, in fact, \u201cimmediate.\u201d As our discussion has indicated, defendant failed to receive the notice on the night of his arrest only because of an unintentional, administrative error. Following defendant\u2019s release, which took place on a Friday evening, efforts were made to contact defendant through his parents. When this proved unsuccessful, the police again attempted to reach defendant over the following weekend at his parents\u2019 house and elsewhere. These efforts likewise failed, but on the next regular business day, Monday, January 4, the police were able to effectuate service of the notice on defendant. Thus, once they discovered their mistake, the police acted diligently to correct it. We fail to see, and defendant has not shown, how the delay which took place could possibly be regarded as unnecessary or unreasonable under these circumstances.\nDefendant\u2019s second and final argument is that the circuit court\u2019s judgment denying rescission of the statutory summary suspension must be reversed because the State was not required to lay the required foundation prior to admission into evidence of the results of defendant\u2019s breath test. This argument must also fail. Our supreme court has recently held that once a motorist has made a prima facie case that the breath test result did not disclose a blood-alcohol concentration of 0.10 or more, or that the test result did not accurately reflect his blood-alcohol concentration, the State can only avoid rescission by moving for the admission of the test into evidence and laying the required foundation. (People v. Orth (1988), 124 Ill. 2d 326, 340.) In this case, however, defendant did not establish such a prima facie case. Indeed, no evidence of any kind was presented by defendant which suggested in any way that the breath test result did not in fact disclose a blood-alcohol concentration in excess of 0.10 or that his blood-alcohol concentration was not accurately reflected by the test result. Because no prima facie showing was made that the test results were unreliable, the State had no obligation to establish a foundation for admission of those test results.\nEven if, arguendo, defendant had presented a prima facie case for rescission, defendant\u2019s argument would still fail given the record before us here. That record reveals that the State called as a witness the Illinois State trooper who administered the breath test to defendant. That trooper, Joseph W. LeBeane, indicated that he was certified to operate the Intoxilyzer machine which was used to test defendant\u2019s blood-alcohol concentration. He explained the procedures which he followed in administering the test to defendant and told the court what the results of the test were. Defendant\u2019s attorney was then given an ample opportunity to cross-examine him, and the results of the breath test were admitted into evidence without objection. Absent such an objection, defendant cannot now claim that the evidentiary foundation laid by the State was somehow deficient. See People v. Angelino (1987), 160 Ill. App. 3d 632, 638, 513 N.E.2d 1132, 1135.\nFor the foregoing reasons, the judgment of the circuit court of Montgomery County is affirmed.\nAffirmed.\nLEWIS and CALVO, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HARRISON" } ], "attorneys": [ "Alan Pretnar, of Taylor Springs, for appellant.", "Barbara Adams, State\u2019s Attorney, of Hillsboro (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. MARLEY, Defendant-Appellant.\nFifth District\nNo. 5\u201488\u20140095\nOpinion filed November 15, 1988.\nAlan Pretnar, of Taylor Springs, for appellant.\nBarbara Adams, State\u2019s Attorney, of Hillsboro (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0401-01", "first_page_order": 423, "last_page_order": 428 }