{
  "id": 2492437,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT F. CRABBE, Defendant-Appellant",
  "name_abbreviation": "People v. Crabbe",
  "decision_date": "1990-03-15",
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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT F. CRABBE, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant, Herbert F. Crabbe, appeals from a judgment of the circuit court which denied defendant\u2019s petition for rescission of the statutory summary suspension of his driving privileges, pursuant to section 2\u2014118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 2\u2014118.1). Defendant contends that the breath-analysis machine used to test his breath at the time of his arrest for driving under the influence of alcohol was not properly certified as accurate, thus rendering his breath-test result invalid and inadmissible. We affirm.\nOfficer Gary Reffett of the Rockford police department arrested defendant in the early morning hours of April 7, 1988. Officer Reffett charged defendant with driving under the influence of alcohol in violation of section 11 \u2014 501 of the Code (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 11\u2014501). At the officer\u2019s request, defendant submitted to a breath-analysis test. Defendant\u2019s test result was .19. Following this test, Officer Reffett prepared a law enforcement sworn report and served notice upon defendant of the summary suspension of his driving privileges pursuant to section 11 \u2014 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 11\u2014501.1). Defendant timely filed a petition requesting rescission of the statutory summary suspension. The circuit court denied his petition and sustained the suspension. Defendant\u2019s timely appeal ensued; however, pursuant to defendant\u2019s motion, the circuit court stayed the suspension of his license pending the instant appeal.\nThe sole issue on appeal is whether the breath-analysis machine used to test defendant\u2019s breath was properly certified as accurate pursuant to State statutes and applicable regulations. Defendant contends that the machine used to test his breath was not accurate within the meaning of the Department of Public Health\u2019s regulations, thus rendering his breath test invalid and inadmissible. Defendant\u2019s contention is based on his interesting but ultimately unconvincing interpretation of the applicable regulations.\nThe parties stipulate that the breath-analysis machine in question, a Smith and Wesson Model 2000 Breathalyzer, with a serial number of 20567, was tested by a licensed inspector on April 6, 1989, the day before defendant\u2019s arrest. The parties further stipulate that the inspector conducted two analyses on the machine using a certified controlled reference sample with a known ethyl alcohol concentration of .10% weight per volume and that the machine yielded .09% weight per volume values for both analyses.\nThe Department of Public Health promulgated regulations concerning the proper procedures for administering breath-analysis tests and maintaining accurate breath-analysis machines. (77 Ill. Adm. Code \u00a7510.10 et seq. (1985).) The regulations require breath-analysis machines to \u201cbe accurate within \u00b1 0.01% W/V to be certified [as valid alcohol concentration analysis machines].\u201d (77 Ill. Adm. Code \u00a7510.100(a) (1985); see also People v. Davis (1989), 180 Ill. App. 3d 749, 752-53.) As noted in Davis, the regulations define \u201cW/V\u201d as the weight of alcohol per volume of breath or other substance sampled. 180 Ill. App. 3d at 753, citing 77 Ill. Adm. Code \u00a7510.20 (1985).\nDefendant asserts that the phrase \u201cwithin \u00b1 0.01%\u2019\u2019 means \u201cless than \u00b1 0.01%.\u201d Defendant argues that the April 6 analysis of the machine in question demonstrated that that machine\u2019s margin of error was not \u201cwithin\u201d the margin of error specified by the regulation. In support of his interpretation, defendant quotes various definitions of the term \u201cwithin\u201d and cites two appellate court decisions.\nOne definition offered by the defendant defines \u201cwithin\u201d to mean \u201cin the limits or compass of [as in within a mile].\u201d We note the following similar definition:\n\u201c(1) Not beyond the quantity, degree or limitations of; (2) in or into the scope or sphere of; (3) in or into the range of; (4) used as a function word to indicate a specified difference or margin.\u201d (Webster\u2019s Ninth Collegiate Dictionary 1355 (1986).)\nWith these definitions in mind, we believe the term \u201cwithin\u201d as used in the Department of Public Health\u2019s regulations means \u201crange.\u201d In other words, pursuant to the regulations, a breath-analysis machine which yields test sample results ranging from +0.01% to -0.01% is certifiably accurate. Case law cited by defendant does not disturb our determination in this regard.\nIn Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045, the defendant board maintained a promotional rule that candidates for promotion whose written exam grades were \u201cwithin the highest 25%\u201d of all grades would advance to oral interviews. In November 1974, 17 corporals took the test. Noting that 25% of 17 is 4.25, the defendant board took the top five candidates and advanced them to oral interviews. It explained its action was based on its long-established practice of rounding the percentage up to a whole number whenever the actual percentage resulted in a whole number and a fraction. The appellate court held that the phrase \u201cwithin 25%\u201d was not ambiguous and, therefore, the board was not entitled to apply its long-standing practice in interpreting such ambiguous language. The court stated, \u201c[fjive is 29.41 percent of 17 and thus not within 25 percent of 17.\u201d (Emphasis in original.) (49 Ill. App. 3d at 1048.) We are unable to see how the holding in Hetzer supports defendant\u2019s assertion that the term \u201cwithin\u201d as used in the Department of Public Health regulations means \u201cless than.\u201d\nDefendant\u2019s other citation is equally inapposite. In Sacks v. Legg (1920), 219 Ill. App. 144, 148, the appellate court considered the phrase \u201cwithin a radius of 300 feet.\u201d The court determined that the phrase required that \u201cthe whole territory embraced in the limits of such 300 feet should be included.\u201d (219 Ill. App. at 148.) Again, we are unable to discern support in Sacks for defendant\u2019s interpretation of \u201cwithin.\u201d\nAs an appendix to his reply brief, defendant has submitted a photocopy of an operator\u2019s manual for the Smith and Wesson Model 2000 Breathalyzer. This document is extrinsic evidence and, as such, is not part of the record on appeal; thus, we shall not consider it. Nevertheless, the information contained in the operator\u2019s manual does not support defendant\u2019s contention, for it reveals that the Model 2000 breath-analysis machine provides for a numerical readout of only two digits to the right of the decimal point. In other words, it is apparent that the machine is capable of yielding numerical results.of only .10, .11, .09, and so on. The machine in question produced sample test results of .09 when it was tested with controlled samples with a known alcohol concentration of .10. Clearly, the machine yielded a numerical value that was .01 less than the controlled samples\u2019 known concentration, or, put more simply, the machine erred by exactly .01. Defendant argues that, in order to be certified as accurate, the machine must err less than .01. Apparently, defendant believes that in order to satisfy the regulations\u2019 requirements, a breath-analysis machine must register sample test results that are + .009%; however, according to the design of the machine itself, a sample test result consisting of three digits to the right of the decimal point is simply impossible. Although we do not consider the operator\u2019s manual as part of the record on appeal, we offer the discussion above merely to illustrate the absurdity of defendant\u2019s interpretation.\nWe reiterate a statement we made earlier in People v. Davis and determine that the Department of Public Health\u2019s regulations clearly provide that the acceptable margin of error on a breath-analysis machine is \u00b1 .01%, a margin which is incorporated throughout the statutory scheme. See Davis, 180 Ill. App. 3d at 754.\nIn view of the foregoing, we reject defendant\u2019s novel interpretation of the term \u201cwithin,\u201d and we affirm the order of the circuit court of Winnebago County sustaining the statutory summary suspension of defendant\u2019s driving privileges.\nAffirmed.\nUNVERZAGT, P.J., and DUNN, J., concur.",
        "type": "majority",
        "author": "JUSTICE McLAREN"
      }
    ],
    "attorneys": [
      "Mark A. Rouleau, of Crosby & Lambert, of Rockford, for appellant.",
      "Paul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, 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. HERBERT F. CRABBE, Defendant-Appellant.\nSecond District\nNo. 2\u201489\u20140520\nOpinion filed March 15, 1990.\nMark A. Rouleau, of Crosby & Lambert, of Rockford, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0163-01",
  "first_page_order": 185,
  "last_page_order": 189
}