{ "id": 2613778, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TRACY L. DAVIS, Defendant-Appellee", "name_abbreviation": "People v. Davis", "decision_date": "1989-03-17", "docket_number": "No. 2\u201488\u20140288", "first_page": "749", "last_page": "755", "citations": [ { "type": "official", "cite": "180 Ill. App. 3d 749" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "491 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 320", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448718 ], "pin_cites": [ { "page": "325-26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0320-01" ] }, { "cite": "241 N.E.2d 419", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "422" }, { "page": "422" } ], "opinion_index": 0 }, { "cite": "469 N.E.2d 1085", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1090" }, { "page": "1090" } ], "opinion_index": 0 }, { "cite": "103 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152711 ], "weight": 2, "pin_cites": [ { "page": "394" }, { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0384-01" ] }, { "cite": "41 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851872 ], "weight": 3, "pin_cites": [ { "page": "12" }, { "page": "12" }, { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0007-01" ] }, { "cite": "357 N.E.2d 792", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5434877 ], "weight": 2, "pin_cites": [ { "page": "165" }, { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0157-01" ] }, { "cite": "449 N.E.2d 812", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114753 ], "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0159-01" ] }, { "cite": "478 N.E.2d 1380", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 757", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529964 ], "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0757-01" ] }, { "cite": "513 N.E.2d 1142", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1145" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650284 ], "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0643-01" ] }, { "cite": "530 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "215" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218359 ], "year": 1987, "pin_cites": [ { "page": "336-38" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0326-01" ] } ], "analysis": { "cardinality": 672, "char_count": 14311, "ocr_confidence": 0.767, "pagerank": { "raw": 2.1268931449723596e-07, "percentile": 0.7653556249804525 }, "sha256": "fa203b7a4e31ab5af183880f6b5ecefd7aee900d1d1e36e940dd7890530a7807", "simhash": "1:a0a282d677e28c95", "word_count": 2314 }, "last_updated": "2023-07-14T16:06:12.370658+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TRACY L. DAVIS, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE NASH\ndelivered the opinion of the court:\nThe State appeals from a judgment of the circuit court which rescinded summary suspension of the driving privileges of defendant, Tracy Davis, pursuant to section 2 \u2014 118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 \u2014 118.1). The State contends that such rescission was improper as it was based upon the trial court\u2019s erroneous finding that a breathalyzer result of .10 is automatically subject to, and reduced by, an industrial tolerance level of .01, thus requiring rescission of the summary suspension of defendant\u2019s driver\u2019s license.\nThe defendant, Tracy Davis, was arrested in the early morning hours of December 27, 1987, by an Elmhurst city police officer and charged with driving under the influence of alcohol in violation of section 11 \u2014 501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 \u2014 501(a)(1)). At the police station, the defendant voluntarily submitted to a breathalyzer test on which she registered a result of .10. On the basis of this test result, the arresting officer, Michael Campise, prepared a law enforcement sworn report and served notice upon the defendant of the summary suspension of her driving privileges, pursuant to section 11 \u2014 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 \u2014 501.1).\nThe defendant requested a summary suspension hearing at which she presented her own testimony and that of Officer Campise. During closing argument, defense counsel stated that the type of breath-analyzing machine used in testing defendant (Smith and Wesson Model 2000) had \u201can industrial tolerance level of .01.\u201d The State objected to this assertion and argued that the court should not take the defense counsel\u2019s statement into consideration as there was no evidence presented on the issue of variance, and defense counsel had failed to ask the court to take judicial notice of the Department of Public Health standards relating to breath-analyzing machines.\nThe trial court found that Officer Campise had reasonable ground to arrest the defendant and that there were sufficient facts for him to have concluded that the defendant was driving under the influence of alcohol. However, the court stated that it would be improper not to take judicial notice \u201cof the plus or minus ratio \u2014 the tolerance, plus or minus, on the machine.\u201d Because the defendant\u2019s breathalyzer test result was exactly .10, and because of the claimed standards allowing for a tolerance, the trial court granted the defendant\u2019s petition to rescind the summary suspension of her driving privileges.\nThe sole issue presented is whether the trial court erred in taking judicial notice of an asserted \u201cindustrial tolerance level\u201d on breathalyzer machines which would require breathalyzer test results of .10 to fail to support the automatic summary suspension of driving privileges required by section 11 \u2014 501.1 of the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 951/2, par. 11 \u2014 501.1). The State contends that the tolerance level of a breathalyzer machine is not subject to judicial notice because it is not a fact that is generally known to be true by everyone; the State further contends that if such fact were so well known, the legislature must have taken its existence into account when drafting the applicable driving-under-the-influence statutes. The State concludes that the trial court\u2019s interpretation that the summary suspension statute does not apply when a breathalyzer test result exactly equals .10 renders a portion of the statute meaningless. We agree and reverse the erroneous judgment which rescinded the summary suspension of defendant\u2019s license on this novel theory.\nSection 11 \u2014 501.1(d) provides that if a motorist refuses to submit to a chemical test of blood, breath or urine for the purpose of determining alcohol concentrations therein, or, having submitted to such test, the motorist\u2019s alcohol concentration is determined to be .10 or more, the arresting officer must prepare a sworn report and submit it to the appropriate circuit court and the Secretary of State. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 \u2014 501.1(d).) Section 11 \u2014 501.1(e) of the Code further requires that upon receipt of such sworn report, the Secretary of State shall summarily suspend the motorist\u2019s driving privileges. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 \u2014 501.1(e).) Elsewhere in the Code, driving under the influence of alcohol is prohibited (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 \u2014 501(a)(2)), as is driving when a motorist\u2019s blood or breath contains an alcohol concentration of .10 or more, as disclosed by chemical analysis (Ill. Rev. Stat. 1987, ch. 95%, par. 11 \u2014 501(a)(1)). Such chemical analysis gives rise to certain presumptions, as in section 11 \u2014 501.2(b)(3), which provides that if a motorist\u2019s alcohol concentration is .10 or more, \u201cit shall be presumed that the person was under the influence of alcohol.\u201d (Ill. Rev. Stat. 1987, ch. 95%, par. 11 \u2014 501.2(b)(3).) These statutes which pertain to the offense of driving under the influence of alcohol and the testing of persons suspected of driving under the influence are consistent and clear in their application of the standards set by the legislature. An alcohol concentration of .10 or more as shown by chemical analysis triggers specific statutory action on the part of law enforcement officials and the Secretary of State, and, as noted above, the showing of such an alcohol concentration gives rise to a presumption that the individual was under the influence of alcohol.\nIn spite of the clear direction set forth by the legislature with regard to a motorist\u2019s alcohol-concentration level as determined through chemical analysis, the defendant contends that \u201cthe statutes provide for suspension in cases where a motorists [sic] blood alcohol concentration, not test results, is .10 or greater.\u201d (Emphasis in defendant\u2019s brief.) The defendant is apparently arguing that the various statutory references to alcohol concentration actually indicate an absolute value rather than the results disclosed by chemical testing of an individual\u2019s blood, breath or urine. Thus, the defendant argues, any variance in a testing procedure such as the \u201cindustrial tolerance\u201d asserted to be applicable to a Smith and Wesson Model 2000 breathalyzer machine is relevant to the issue of whether a motorist\u2019s driving privileges will be suspended pursuant to section 11 \u2014 501.1(e) of the Illinois Vehicle Code.\nWhether a breathalyzer test was properly administered and whether the result obtained is accurate are relevant factors in a summary suspension hearing. We note, however, that the defendant in the present case failed to introduce any evidence that she was improperly tested, that the machine in question malfunctioned or the result was inaccurate. Such evidence is indispensable for the defendant to meet her burden in establishing a prima facie case for rescission. See People v. Orth (1988), 124 Ill. 2d 326, 336-38, 530 N.E.2d 210, 215; People v. Torres (1987), 160 Ill. App. 3d 643, 647, 513 N.E.2d 1142, 1145.\nThe Department of Public Health has promulgated regulations concerning proper testing methods and trustworthy test results. (77 Ill. Adm. Code 510.10 et seq. (1985).) It requires breath-analysis machines to \u201cbe accurate within plus or minus 0.01% W/V to be certified [as valid alcohol-concentration analysis machines].\u201d (77 Ill. Adm. Code 510.100(a) (1985).) \u201cWIV\u201d is elsewhere defined as the weight of alcohol per volume of breath or other substance sampled. 77 Ill. Adm. Code 510.20 (1985).\nAlthough the defendant did not offer the above regulations in evidence or refer to them in the trial below, it would appear that she based her argument for rescission on section 510.100(a) (77 111. Adm. Code 510.100(a) (1985)). In spite of the defendant\u2019s apparent failure to produce the text of the regulations for the court to examine, and her failure to specifically invoke the applicable regulation, the trial court took judicial notice of it and did so simply on defense counsel\u2019s general representation as to its provisions.\nA court may properly take judicial notice of administrative rules and regulations (Acme Brick & Supply Co. v. Department of Revenue (1985), 133 Ill. App. 3d 757, 762, 478 N.E.2d 1380) and can also take notice of facts which are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable authority. (Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159, 166, 449 N.E.2d 812; see Ill. Rev. Stat. 1985, ch. 110, pars. 8\u2014 1001 through 1009.) However, no court can judicially notice a fact, regulation, ordinance, document, or administrative rule unless it has been supplied with or has ready access to the matter to be noticed (see People v. Davis (1976), 65 Ill. 2d 157, 165, 357 N.E.2d 792). That did not occur here as no reference to or copy of the regulation which the trial court noticed and relied upon was supplied to it or is found in the record. Nevertheless, we have located the regulation in question, as earlier noted, and will consider whether it was correctly construed in this case.\nWhile the Department of Public Health requires instruments used for the analysis of alcohol concentration to be certifiably accurate within a certain range, that fact does not lead to the necessary conclusion that all such instruments err to that exact degree. It is conceivable that such instruments exist which are able to analyze alcohol concentrations with little or no degree of error whatsoever; however, the regulation only specifies that such instruments must be accurate within plus or minus .01%. Thus, a machine testing at the outer range of accuracy could actually underreport an individual\u2019s alcohol concentration. Applying this potential for positive error to the defendant in the present case, whose test result was .10, it is possible, albeit not proved, that her alcohol concentration was, in fact, .11. Under the reasoning applied by the trial court, however, it was assumed that any such error would necessarily be on the negative side, thus reducing the test result to .09, and permitting defendant to retain her driving privileges. In this case, however, the defendant produced no evidence whatsoever that the particular machine involved in her test on December 27,1986, erred in any manner.\nWe think it is clear that the various sections of the Illinois Vehicle Code which refer to alcohol-concentration levels refer to alcohol concentrations as revealed by chemical tests or other analysis. The Code does not state nor does it imply that law enforcement officials must somehow obtain absolute values which are certifiably free of any inaccuracy whatsoever. We think it equally clear that the acceptable margin of error on a breathalyzer machine is .01%, as provided in the Department of Public Health Regulations, and conclude that such margin of error is accounted for throughout the statutory scheme.\nAlthough the trial court could have properly taken judicial notice of the administrative regulation referred to earlier, if provided to him, it was improper for the court to take judicial notice of or consider the alleged \u201cindustrial tolerance level\u201d of the brand of breath-analysis machine used in the defendant\u2019s arrest to which defendant\u2019s counsel referred in argument. We note that the phrase \u201cindustrial tolerance level\u201d was not defined in trial by either of the parties or by the court.\nWe discussed earlier certain standards governing matters of which courts may take judicial notice. Our supreme court has stated:\n\u201cCourts may take judicial notice of matters which are commonly known (People v. Tassone (1968), 41 Ill. 2d 7, 12) or of facts which, while not generally known, are readily verifiable from sources of indisputable accuracy (People v. Davis (1976), 65 Ill. 2d 157, 165).\u201d (Murdy v. Edgar (1984), 103 Ill. 2d 384, 394, 469 N.E.2d 1085, 1090.)\nThus it has been said that the court does not operate in a vacuum and is to be presumed no more ignorant than the general public. (People v. Tassone (1968), 41 Ill. 2d 7, 12, 241 N.E.2d 419, 422.) Both parties correctly characterize the standard for judicial notice of a fact as proper when a particular item is something which is commonly known or \u201cthat which everyone knows to be true.\u201d (Tassone, 41 Ill. 2d at 12, 241 N.E.2d at 422.) In her brief to this court, the defendant claims \u201cit is commonly known that machines are subject to industrial tolerances, so as to make evidence of [this] fact unnecessary.\u201d Although she does not specify what type of machine she is discussing, we may take it to mean the Smith and Wesson Model 2000 breathalyzer instrument. As noted above, the phrase \u201cindustrial tolerance\u201d was not defined by the defendant or the trial court, and it is apparent that phrase and the defendant\u2019s unsupported assertion above are too imprecise for this court to take judicial notice of their existence. (See In re Marriage of And (1986), 142 Ill. App. 3d 320, 325-26, 491 N.E.2d 894, 898.) Further, neither of these claims is of such a nature as to meet the requirements for judicial notice; if the defendant wished to rely upon the theory of \u201cindustrial tolerance\u201d and its significance with regard to her test results, explanation of the theory and its relevance should have been introduced by way of expert testimony. See Murdy, 103 Ill. 2d at 394, 469 N.E.2d at 1090.\nIn view of the foregoing, we find that the trial court\u2019s judicial notice of an unsubstantiated theory of \u201cindustrial tolerance levels\u201d of breathalyzer machines was improper and that the court incorrectly interpreted and thus misapplied the administrative regulation in rescinding summary suspension of the defendant\u2019s driving privileges.\nAccordingly, the judgment of the circuit court is reversed.\nReversed.\nINGLIS and WOODWARD, JJ., concur.", "type": "majority", "author": "JUSTICE NASH" } ], "attorneys": [ "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Michael T. Smith, of Schaumburg, and Rochelle J. Brinnick, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TRACY L. DAVIS, Defendant-Appellee.\nSecond District\nNo. 2\u201488\u20140288\nOpinion filed March 17, 1989.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nMichael T. Smith, of Schaumburg, and Rochelle J. Brinnick, of Chicago, for appellee." }, "file_name": "0749-01", "first_page_order": 771, "last_page_order": 777 }