{
  "id": 2883145,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT P. WITT, Defendant-Appellee",
  "name_abbreviation": "People v. Witt",
  "decision_date": "1994-02-25",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT P. WITT, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE INGLIS\ndelivered the opinion of the court:\nThe State appeals the pretrial decision of the circuit court of Du Page County suppressing the results of breath tests in the prosecution of defendant, Robert Witt. For the following reasons, we reverse.\nDefendant was charged with driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 11 \u2014 501(a)(2)(now 625 ILCS 5/11 \u2014 501(a)(2) (West 1992))), driving with a blood-alcohol level greater than 0.10 (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 11 \u2014 501(a)(1) (now 625 ILCS 5/11 \u2014 501(a)(1) (West 1992))), driving on the shoulder (Ill. Rev. Stat. 1989, ch. 95^2, par. 11 \u2014 709.1 (now 625 ILCS 5/11\u2014 709.1 (West 1992))), and improper lane usage (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 11 \u2014 709 (now 625 ILCS 5/11 \u2014 709 (West 1992))). Count two alleged a blood-alcohol level of 0.15. Defendant was notified of the statutory suspension of his license pursuant to section 11 \u2014 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 11 \u2014 501.1 (now 625 ILCS 5/11 \u2014 501.1 (West 1992))), and he petitioned for a hearing.\nTestimony at the hearing indicated that Officer John Lesner of the Village of Itasca brought defendant to the police station and read him the \"rights to motorist\u201d at 1:36 a.m. Officer Lesner administered a breath test to defendant at approximately 2 a.m., after observing him for the requisite 20 minutes. Defendant\u2019s blood-alcohol level registered at 0.15. Officer Lesner then learned that defendant wears false teeth and administered a second breath test. This time defendant\u2019s blood-alcohol level registered at 0.14. The trial court granted defendant\u2019s motion to rescind the summary suspension on the ground that Officer Lesner did not wait an additional 20 minutes before administering the second test.\nDefendant moved in limine to suppress the test results. Following argument, the trial court held both \"blows\u201d inadmissible, the first because defendant\u2019s false teeth were in his mouth, and the second because Officer Lesner did not wait an additional 20 minutes before administering it. The trial court allowed the State to file a certificate of impairment pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)), and this appeal followed.\nWe note initially that defendant has failed to file an appellee\u2019s brief. The issue, however, is simple, and we therefore choose to address the merits of the appeal without the benefit of a brief from defendant. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.\nA reviewing court will not disturb a trial court\u2019s ruling on a motion to suppress unless the ruling is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162-63.) On a motion to suppress evidence, the function of the trial court is to determine the credibility of witnesses and the weight to be accorded to testimony, and the inferences to he drawn. (Galvin, 127 Ill. 2d at 163.) In order to present results of breath tests for alcohol, the State\u2019s foundation must include:\n\"(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 model used was a machine 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\u2019 sheet can be identified as the tests given to the motorist.\u201d (Emphasis added.) People v. Orth (1988), 124 Ill. 2d 326, 340.\nPeople v. Thomas (1990), 200 Ill. App. 3d 268, 281.\nThe trial court found that requirement four was not met for either test, in that defendant\u2019s false teeth constituted foreign matter in his mouth during the first test, and Officer Denser did not wait 20 minutes after the first test before administering the second test.\nThe Department of Public Health standards require:\n\"a) Continuous observation of the subject for at least twenty (20) minutes prior to collection of the breath specimen, during which time the subject must not have ingested alcohol, food, drink, regurgitated, vomited or smoked.\u201d (77 Ill. Adm. Code \u00a7 510.60, at 3668 (1991).)\nThis standard makes no reference to false teeth, nor does it call for an additional 20-minute observation period. \"[T]he important considerations are whether the defendant had ingested any food or drink, smoked cigarettes, put other substance in his mouth, or done anything which would have tainted the test result.\u201d (People v. Elliott (1986), 143 Ill. App. 3d 72, 80.) We find no authority to support the trial court\u2019s conclusions that false teeth constitute foreign matter or that false teeth affect breath tests.\nNor have we found any authority to support the assertion that a separate 20-minute observation period is required prior to each of two or more consecutive tests. The standard requires the officer to observe the motorist for 20 minutes prior to the test. The standard also requires that the motorist must not ingest alcohol, smoke, eat or drink during these 20 minutes. Breathing into a tube does not constitute eating, drinking, regurgitating, or smoking; nor does the wearing or removing of false teeth.\nBecause the premises for the suppression of the results of these tests are unfounded, we find the trial court\u2019s decision to be manifestly erroneous. We therefore reverse the order of the trial court suppressing the results of the two breath tests and remand this cause for further proceedings consistent with this opinion.\nReversed and remanded.\nMcLAREN and GEIGER, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE INGLIS"
      }
    ],
    "attorneys": [
      "James E. Ryan, State\u2019s Attorney, of Wheaton (Barbara A. Preiner, Assistant State\u2019s Attorney, and William L. Browers and Lawrence M. Bauer, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.",
      "No brief filed for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT P. WITT, Defendant-Appellee.\nSecond District\nNo. 2 \u2014 92\u20140803\nOpinion filed February 25, 1994.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (Barbara A. Preiner, Assistant State\u2019s Attorney, and William L. Browers and Lawrence M. Bauer, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nNo brief filed for appellee."
  },
  "file_name": "0124-01",
  "first_page_order": 144,
  "last_page_order": 147
}