{ "id": 75392, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY D. BRUMMETT, Defendant-Appellant", "name_abbreviation": "People v. Brummett", "decision_date": "1996-04-26", "docket_number": "No. 4\u201495\u20140402", "first_page": "421", "last_page": "431", "citations": [ { "type": "official", "cite": "279 Ill. App. 3d 421" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "524 N.E.2d 681", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 306", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586745 ], "year": 1988, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0306-01" ] }, { "cite": "504 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "938" } ], "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 518", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576115 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0518-01" ] }, { "cite": "501 N.E.2d 963", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "963" }, { "page": "964" }, { "page": "965" } ], "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501497 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "284" }, { "page": "285" }, { "page": "286-87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0283-01" ] }, { "cite": "536 N.E.2d 1346", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "1347" }, { "page": "1347" }, { "page": "1349" } ], "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 385", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498624 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "386" }, { "page": "387" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0385-01" ] }, { "cite": "617 N.E.2d 1366", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1369" } ], "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 848", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2931078 ], "year": 1993, "pin_cites": [ { "page": "850-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0848-01" ] }, { "cite": "530 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "215" }, { "page": "215" }, { "page": "217" }, { "page": "217" }, { "page": "216-17" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218359 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "337-38" }, { "page": "337-38" }, { "page": "341" }, { "page": "341" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0326-01" ] }, { "cite": "459 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "959" } ], "opinion_index": 0 }, { "cite": "99 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164374 ], "year": 1984, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0389-01" ] }, { "cite": "601 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "307" } ], "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 917", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783546 ], "year": 1992, "pin_cites": [ { "page": "920" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0917-01" ] }, { "cite": "611 N.E.2d 1285", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "1288" }, { "page": "1288", "parenthetical": "finding a continuance at the State's request after defendant filed a second motion for substitution of judge was a delay occasioned by defendant for speedy trial purposes" } ], "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5118455 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1038" }, { "page": "1038" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/1034-01" ] }, { "cite": "445 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 270", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435917 ], "year": 1983, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0270-01" ] }, { "cite": "293 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "53 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927327 ], "year": 1973, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0550-01" ] }, { "cite": "506 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3608513 ], "year": 1987, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0726-01" ] }, { "cite": "172 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55988 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "295-96" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0289-01" ] }, { "cite": "529 N.E.2d 268", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "269" }, { "page": "270" } ], "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515003 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "928-29" }, { "page": "929" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0927-01" ] }, { "cite": "510 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 918", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505645 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "922-23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0918-01" ] }, { "cite": "609 N.E.2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "333-34" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820207 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "260-62" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0250-01" ] }, { "cite": "269 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "page": "4", "parenthetical": "limiting the extent of civil discovery available in a juvenile delinquency proceeding" } ], "opinion_index": 0 }, { "cite": "48 Ill. 2d 171", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905706 ], "year": 1971, "pin_cites": [ { "page": "175", "parenthetical": "limiting the extent of civil discovery available in a juvenile delinquency proceeding" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0171-01" ] }, { "cite": "292 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "385", "parenthetical": "limiting discovery in a civil proceeding on a municipal ordinance violation" } ], "opinion_index": 0 }, { "cite": "53 Ill. 2d 399", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925683 ], "year": 1973, "pin_cites": [ { "page": "404", "parenthetical": "limiting discovery in a civil proceeding on a municipal ordinance violation" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0399-01" ] }, { "cite": "315 N.E.2d 229", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "234", "parenthetical": "limiting discovery in implied consent hearings to that allowed under Schmidt" } ], "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5376135 ], "year": 1974, "pin_cites": [ { "page": "342", "parenthetical": "limiting discovery in implied consent hearings to that allowed under Schmidt" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0335-01" ] }, { "cite": "565 N.E.2d 1046", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "1048" }, { "page": "1048" }, { "page": "1049" }, { "page": "1048" }, { "page": "1049" }, { "page": "1048-49", "parenthetical": "discussing the difference between the two types of subpoenas" } ], "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553814 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "349" }, { "page": "349" }, { "page": "350-51" }, { "page": "349" }, { "page": "351" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0346-01" ] }, { "cite": "309 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "56 Ill. 2d 572", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404114 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0572-01" ] } ], "analysis": { "cardinality": 1022, "char_count": 24942, "ocr_confidence": 0.773, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3755958358962241 }, "sha256": "40d36065b9e12f6e973a2f7dc79a5e639f13181b0bb3c33fb63f485153bdb796", "simhash": "1:23bd15543742b4e0", "word_count": 4175 }, "last_updated": "2023-07-14T19:15:35.504495+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. TONY D. BRUMMETT, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE COOK\ndelivered the opinion of the court:\nDefendant Tony Brummett appeals the trial court\u2019s refusal to rescind the summary suspension of his driver\u2019s license, arguing (1) the trial court erred in quashing portions of his subpoenas duces tecum, (2) he was not given a hearing on the summary suspension of his driver\u2019s license within 30 days of his request (625 ILCS 5/2 \u2014 118.1(b) (West 1992)), (3) he established a prima facie case that he was not in \"actual physical control\u201d of a motor vehicle on February 25, 1995 (625 ILCS 5/2 \u2014 118.1(b)(2) (West 1992)), (4) he established a prima facie case that he did not operate a motor vehicle on the \"public highways\u201d of Illinois on February 25, 1995 (625 ILCS 5/2 \u2014 118.1(b)(2) (West 1992)), and (5) he established, and the State failed to rebut, a prima facie case for rescission based upon a malfunctioning breathalyzer machine (625 ILCS 5/2 \u2014 118.1(b)(4) (West 1992)). We affirm.\nDefendant was arrested for driving under the influence (DUI) (625 ILCS 5/11 \u2014 501 (West 1992)) on February 25, 1995. On February 27, 1995, defendant filed a motion for substitution of judges as a matter of right. 725 ILCS 5/114 \u2014 5 (West 1994). On the same day, he filed a request for hearing on a petition to rescind the summary suspension of his license. 625 ILCS 5/2 \u2014 118.1(b) (West 1992). The petition to rescind, however, was not filed until March 3, 1995. Defendant caused a subpoena duces tecum to be issued to various employees of the Decatur police department and State\u2019s Attorney\u2019s office. On March 17, defense counsel filed a second motion for substitution of judges. On March 24 that motion was withdrawn.\nOn April 3, the cause was called for hearing on defendant\u2019s petition to rescind and on the State\u2019s objections to the subpoenas duces tecum. Defendant was given a list of witnesses and copies of the breathalyzer results. All other portions of the subpoenas duces tecum were quashed and the hearing was recessed until April 14, 1995. On April 14, the trial court denied defendant\u2019s petition to rescind. This appeal followed.\nOn appeal, defendant argues the trial court erred in its ruling on his subpoenas duces tecum. While defendant claims the subpoenas duces tecum were \"summarily quashed,\u201d that was not the trial court\u2019s order. The trial court held defendant had a right to a list of the State\u2019s witnesses, any confessions of defendant, any evidence negating defendant\u2019s guilt, and a copy of the breath analysis results. Defendant was provided with a list of witnesses and a copy of the breath analysis results.\nSubpoenas duces tecum are issued by the clerk of the court upon request but may be quashed or modified by the trial court \"[f]or good cause shown.\u201d 735 ILCS 5/2 \u2014 1101 (West 1994). The State, at the rescission hearing and on appeal, argues the scope of the subpoena duces tecum is governed by the supreme court\u2019s decision in People v. Schmidt, 56 Ill. 2d 572, 309 N.E.2d 557 (1974). In Schmidt, the supreme court held discovery available to a defendant in misdemeanor cases is limited to a list of the State\u2019s witnesses, any confessions of the defendant, and any evidence negating defendant\u2019s guilt. In misdemeanor DUI cases, a defendant also has a right to the results of the breathalyzer test. Schmidt, 56 Ill. 2d at 575, 309 N.E.2d at 558. In the case at bar, the trial court apparently relied on Schmidt in ruling on defendant\u2019s subpoenas duces tecum.\nIt could be argued that Schmidt is not controlling in the present case. First, Schmidt concerned discovery in misdemeanor cases. A rescission hearing is a civil proceeding. A rescission hearing is not penal in nature; it is an administrative method designed to remove dangerous drivers from the Illinois highways. People v. Teller, 207 Ill. App. 3d 346, 349, 565 N.E.2d 1046, 1048 (1991). Second, Schmidt dealt with discovery, not with the conditions under which a subpoena duces tecum should be issued.\nNevertheless, the second district has held the discovery limitations of Schmidt apply with equal force to rescission hearings and subpoenas duces tecum. Teller, 207 Ill. App. 3d at 349, 565 N.E.2d at 1048. The defendant in Teller had sought, via the subpoena duces tecum, a variety of information, including an arrest report, a case report, all police department directives relating to chemical DUI tests, all maintenance and repair logs of one breathalyzer, and all information related to repair of that machine. Teller, 207 Ill. App. 3d at 350-51, 565 N.E.2d at 1049. The Teller court held Schmidt did not control in this situation, but went on to hold a defendant in a rescission hearing should be provided with the same discovery allowed under Schmidt. Teller held it was within the discretion of the trial court to grant requests for discovery in excess of that allowed under Schmidt. Teller, 207 Ill. App. 3d at 349, 565 N.E.2d at 1048. The court recognized that broader discovery was allowed in other civil cases but based its decision on the fact that \"the legislature intended the summary suspension and rescission hearing process to be swift and of limited scope.\u201d Teller, 207 Ill. App. 3d at 351, 565 N.E.2d at 1049.\nWe agree with the Teller approach. While Teller was limited to the use of the subpoena duces tecum as a discovery device, there is little to distinguish this use from compelling the production of documents at trial for admission into evidence. See Teller, 207 Ill. App. 3d at 350, 565 N.E.2d at 1048-49 (discussing the difference between the two types of subpoenas). The amount of discovery available to defendants in civil proceedings has been limited in the past. See People v. Finley, 21 Ill. App. 3d 335, 342, 315 N.E.2d 229, 234 (1974) (limiting discovery in implied consent hearings to that allowed under Schmidt); City of Danville v. Hartshorn, 53 Ill. 2d 399, 404, 292 N.E.2d 382, 385 (1973) (limiting discovery in a civil proceeding on a municipal ordinance violation); People ex rel. Hanrahan v. Felt, 48 Ill. 2d 171, 175, 269 N.E.2d 1, 4 (1971) (limiting the extent of civil discovery available in a juvenile delinquency proceeding).\nThus, defendant in the instant case properly received a list of State\u2019s witnesses and a copy of his breathalyzer results, the other Schmidt discovery materials not being applicable. Any additional discovery to be allowed rested within the discretion of the trial court, and the court\u2019s decision to quash the other portions of the subpoenas duces tecum cannot be said to have been an abuse of discretion.\nDefendant next claims he was denied his right to a hearing within 30 days of his request for a rescission hearing. Specifically, defendant argues such a hearing must have been commenced by April 3, 1995, and since only the objections to defendant\u2019s subpoenas duces tecum were discussed on that date, he was not given a hearing within the statutorily prescribed term. Defendant denies he caused any delay in this case. Both parties agree the 30-day term began running on March 3, when defendant first filed his petition to rescind the summary suspension of his license.\nSection 2 \u2014 118.1(b) of the Illinois Vehicle Code (Code) provides:\n\"Upon the notice of statutory summary suspension served under Section 11 \u2014 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. *** Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 \u2014 501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction.\u201d 625 ILCS 5/2 \u2014 118.1(b) (West 1992).\nIn People v. Schaefer, 154 Ill. 2d 250, 609 N.E.2d 329 (1993), the supreme court held defendant need only file a petition for a hearing on the statutory summary suspension to start the 30-day time period running. The burden then shifts to the State to set a court date within the 30-day period. The summary suspension will be rescinded if no hearing is held within this 30-day period, unless delay is occasioned by the defendant. Schaefer, 154 Ill. 2d at 260-62, 609 N.E.2d at 333-34, citing with approval In re Summary Suspension of Driver\u2019s License of Trainor, 156 Ill. App. 3d 918, 510 N.E.2d 614 (1987). Defendant bears the burden of proof in a hearing to rescind the summary suspension of his driver\u2019s license. People v. Joiner, 174 Ill. App. 3d 927, 928-29, 529 N.E.2d 268, 269 (1988).\nWe reject the argument defendant\u2019s hearing was untimely. First and foremost, motions for the substitution of judges clearly constitute delay attributable to a defendant. See People v. Smith, 172 Ill. 2d 289, 295-96 (1996); Trainor, 156 Ill. App. 3d at 922-23, 510 N.E.2d at 617; Joiner, 174 Ill. App. 3d at 929, 529 N.E.2d at 270. This court has even held such motions constitute \"[djelay occasioned by the defendant\u201d within the meaning of the speedy trial statute (see 725 ILCS 5/103 \u2014 5(f) (West 1994)) where a defendant faces the loss of his liberty, not merely the loss of his driver\u2019s license. People v. Helton, 153 Ill. App. 3d 726, 730, 506 N.E.2d 307, 309 (1987); see, e.g., People v. Zuniga, 53 Ill. 2d 550, 553, 293 N.E.2d 595, 597 (1973); People v. Anderson, 112 Ill. App. 3d 270, 272, 445 N.E.2d 432, 434 (1983); People v. Arsberry, 242 Ill. App. 3d 1034, 1038, 611 N.E.2d 1285, 1288 (1993); People v. Turley, 235 Ill. App. 3d 917, 920, 601 N.E.2d 305, 307 (1992). When a substitution of judge has been requested, the 30-day speedy rescission hearing requirement is tolled \"until the newly assigned judge has been furnished with a request for the rescission hearing.\u201d Smith, 172 Ill. 2d at 296.\nThis court need not reach the issue left open in both Smith and Trainor: whether a defendant has an affirmative duty to call the new judge\u2019s attention to the pending petition to rescind when a motion to substitute judge is granted. (In both Smith and Trainor, the defendant actually notified the new judge of his pending motion. Whether a defendant still has this duty, in light of Schaefer, is arguable.) In the present case, defendant has failed to provide this court with sufficient evidence in the record showing why the 30-day period should not have been tolled until March 17. Defendant\u2019s first motion for substitution of judge was filed on February 28 and granted, resulting in a status hearing date on March 17. The record before us fails to indicate when defendant\u2019s case was reassigned by the chief judge. The appellant bears the burden of providing this court with a record adequate to resolve all issues. 155 Ill. 2d R. 323; 134 Ill. 2d R. 329. In the absence of a sufficient record on appeal, this court will presume the trial court\u2019s ruling was in conformity with the law. Foutch v. O\u2019Bryant, 99 Ill. 2d 389, 392, 459 N.E.2d 958, 959 (1984). Thus, it must be assumed the present case was reassigned by the chief judge on or after March 15, so that defendant\u2019s hearing on his petition to rescind was held within the statutorily prescribed period on April 14, absent other delay attributable to defendant. Despite the State\u2019s concession at oral argument that defendant\u2019s first motion to substitute judge was not delay attributable to defendant, we hold that it was.\nThe delay from the filing of defendant\u2019s second motion for substitution of judge on March 17, to its withdrawal on March 24, is also chargeable to defendant. See Arsberry, 242 Ill. App. 3d at 1038, 611 N.E.2d at 1288 (finding a continuance at the State\u2019s request after defendant filed a second motion for substitution of judge was a delay occasioned by defendant for speedy trial purposes).\nDefendant also contends he established a prima facie case that he was not in \"actual physical control\u201d of a motor vehicle on the night in question. Section 11 \u2014 501.1(a) of the Code provides in pertinent part:\n\"Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine ***.\u201d 625 ILCS 5/11 \u2014 501.1(a) (West 1994).\nAt a rescission hearing, the motorist has the burden of presenting a prima facie case for rescission. People v. Orth, 124 Ill. 2d 326, 337-38, 530 N.E.2d 210, 215 (1988). Actual physical control is a question of fact, and the trial court\u2019s ruling on the question will not be overturned unless it is against the manifest weight of the evidence. People v. Scapes, 247 Ill. App. 3d 848, 850-51, 617 N.E.2d 1366, 1369 (1993).\nThe trial court evidently found defendant failed to meet his burden at the rescission hearing. At approximately 1 a.m. on February 25, 1995, defendant was found alone at the scene of an accident in which a car registered in his name was involved. Officer Timothy Boulware of the Decatur city police observed defendant\u2019s Buick, with extensive front-end damage, resting against a retaining wall in front of a residence. A telephone pole next to the vehicle had been sheared off and broken, and the officer observed what appeared to be freshly downed power lines. At the time of Boulware\u2019s arrival, defendant was standing at the rear of the vehicle. Upon ascertaining defendant was not injured, Boulware asked defendant how the accident had occurred. According to Boulware, defendant stated that he had been in a fight earlier at Dooley\u2019s (a tavern) and that he was run off the road while drag racing with the other participant in the fight. Boulware testified defendant first admitted driving the car, but upon finding himself within the confines of a squad car, defendant repeatedly recanted his story. When asked who was driving, defendant responded only with \"Eric,\u201d a response sufficiently vague to keep the police from investigating defendant\u2019s friend Eric Leonard. Defendant would not give \"Eric\u2019s\u201d last name unless Boulware \"unarrested\u201d him. The officer waited for an hour after the accident for someone else to show up; no one arrived to claim that they, and not defendant, had been driving.\nDefendant presented little evidence in support of his assertion that he was not in actual physical control of his vehicle on the night in question. The only such evidence was his testimony that he was not driving and the testimony of his friend Leonard who, long after the accident, finally came forward to admit he was driving. Leonard\u2019s story was improbable. Leonard testified he and defendant had gone to Dooley\u2019s that night. According to Leonard, after the two men left Dooley\u2019s, a mystery vehicle ran them off the road for no apparent reason. Then Leonard, for unknown reasons, went to get his car, leaving defendant at the scene of the accident. Although the accident occurred only five to six blocks from his apartment, Leonard did not return in time to see Boulware, who waited for an hour after the accident. Leonard could not even recall if defendant\u2019s car was still there when he supposedly returned to the scene. On cross-examination, Leonard could not account for why defendant would have told Boulware he had been in a fight earlier at Dooley\u2019s and was eventually driven off the road by the other combatant. Defendant himself denied telling Boulware about an altercation at Dooley\u2019s and drag racing with anyone, claiming, instead, not to know how the accident had occurred as he was sleeping in the car at the time. Thus, believing the testimony of defendant\u2019s witnesses would have required finding Officer Boulware fabricated a detailed story of fisticuffs, drag racing, and revenge. Considering Boulware knew the name of the bar defendant and his comrade admitted they had visited and the inherent improbability of the stories told by defendant and his friend, we cannot say the trial court\u2019s finding on this issue was against the manifest weight of the evidence.\nWhile the facts of this case are somewhat similar to those in People v. Wireman, 181 Ill. App. 3d 385, 536 N.E.2d 1346 (1989), that case is distinguishable. In Wireman, an officer observed an empty blue Buick stuck in a ditch. Several minutes later, the officer observed the defendant exit another vehicle which had pulled up beside the Buick. The defendant appeared drunk and was arrested. The Buick was registered in the defendant\u2019s name, and the officer testified the defendant admitted she was driving the car. The defendant and her husband, however, both testified he was driving the car that night. Wireman, 181 Ill. App. 3d at 386, 536 N.E.2d at 1347. The trial court believed the testimony of the defendant and her husband and rescinded the suspension of her driver\u2019s license. Wireman, 181 Ill. App. 3d at 387, 536 N.E.2d at 1347. The court could not say this finding was against the manifest weight of the evidence. Wireman, 181 Ill. App. 3d at 389, 536 N.E.2d at 1349. Wireman does not help defendant in this case: the appellate court there refused to overturn the trial court\u2019s decision as to the credibility of witnesses, exactly what defendant is asking this court to do in the present case. Here, the trial court believed Officer Boulware and not defendant and his friend.\nDefendant additionally claims he presented a prima facie case that his vehicle was not on a \"public highway\u201d within the meaning of section 11 \u2014 501.1(a) of the Code. In particular, defendant claims to have met his burden in this regard as a result of Officer Boulware\u2019s testimony that defendant\u2019s car was either totally or partially on private property after the accident.\nDefendant\u2019s reliance on People v. Kissel, 150 Ill. App. 3d 283, 501 N.E.2d 963 (1986), and People v. Montelongo, 152 Ill. App. 3d 518, 504 N.E.2d 936 (1987), is inappropriate in the present case. The Montelongo court held rescission was proper where the only evidence at trial was that the defendant was involved in an accident in the parking lot of a tavern, which was private property, as he was attempting to leave the bar. Montelongo, 152 Ill. App. 3d at 523, 504 N.E.2d at 938. The defendants in Kissel were arrested for driving their vehicles in the parking lots of a hotel, an apartment house, and a shopping center, again all private property, while under the influence of alcohol. Kissel, 150 Ill. App. 3d at 284, 501 N.E.2d at 963. The rescissions in the consolidated cases in Kissel were all affirmed in light of the fact all defendants admittedly drove only on private property prior to their arrests. Kissel, 150 Ill. App. 3d at 285, 501 N.E.2d at 964.\nThe Kissel court went on to hold:\n\"We do not consider *** that our holding would necessarily exempt all drivers who may be finally stopped and arrested on private property from the requirements of the implied-consent statute. Where there is evidence that a person drove or was in control of a vehicle upon a public highway while under the influence of alcohol or other drug *** he will be deemed to have consented to testing *** whether actually arrested on the highway or on private property.\u201d (Emphasis added.) Kissel, 150 Ill. App. 3d at 286-87, 501 N.E.2d at 965.\nPersons in defendant\u2019s position are exactly those the Kissel court intended to exclude from its holding \u2014 persons whose intoxicated travels happen, by pure chance, to land them on private property at the culmination of their travels.\nWhether an individual has driven on a public highway immediately prior to arrest is ultimately a question of fact which may be proved by circumstantial evidence. People v. Foster, 170 Ill. App. 3d 306, 310, 524 N.E.2d 681, 684 (1988). The motorist has the burden of presenting a prima facie case for rescission. Orth, 124 Ill. 2d at 337-38, 530 N.E.2d at 215. The only evidence presented by defendant in the present case was the testimony of Officer Boulware, who first testified defendant\u2019s car was found on private property but later explained it was mostly on the public sidewalk. The circumstantial evidence is against defendant in this case. Defendant\u2019s car was found just off the street on a public sidewalk, next to a severed telephone pole with what appeared to be freshly downed power lines. The trial court\u2019s ruling on this issue was not against the manifest weight of the evidence.\nDefendant\u2019s final contention is that he established a prima facie case for rescission based on a malfunctioning breathalyzer and that the State failed to lay the necessary foundation to rebut the prima facie case. Specifically, defendant claims he was given the breathalyzer test twice after the first test registered \"interfering substance.\u201d Since the administering officer testified he had never experienced this reading before, defendant contends he presented a prima facie case for rescission.\nIn Orth, the supreme court set out the procedure whereby a motorist may contest the accuracy of his breathalyzer results. If the motorist can present a prima facie case that the test results were inaccurate, the burden shifts to the State to lay a proper foundation to admit the test results into evidence. Until such evidence is presented the State need not subpoena witnesses. The Orth court described the evidence necessary for the motorist to establish a prima facie case for rescission as \"any circumstance which tends to cast doubt on the test\u2019s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol.\u201d Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217. The trial court\u2019s ruling whether the motorist presented a prima facie case will not be overruled unless it is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.\nFrom the record in this case, it cannot be said the trial court\u2019s decision was against the manifest weight of the evidence. Officer Neil Kline performed a breath analysis on defendant at the Macon County DUI room. Kline testified the machine performed a self-test satisfactorily. Defendant\u2019s blood-alcohol level (BAL) was found to be 0.15. Defendant\u2019s only evidence at trial was Kline\u2019s testimony that he thought he remembered giving defendant two tests after the first might have registered \"interfering substance.\u201d Defendant admitted drinking on the night in question and never asserted that the 0.15 reading was an unreasonable estimate of his BAL on that night. Whether, in fact, the \"interfering substance\u201d reading ever occurred in this case is subject to doubt. Officer Kline was at first unsure about it. Defendant himself did not remember it. The logbook shows only one test administered to defendant. While Kline could not remember seeing this reading before, the \"interfering substance\u201d reading had, in fact, occurred in the past on this machine, according to the few log pages in the record. More importantly, these log records indicate that when a motorist performs the test resulting in an \"interfering substance\u201d reading, the motorist takes the test again, until a numerical readout is obtained. Kline testified this is standard procedure when this readout is obtained. Thus, there is support in the record for the trial court\u2019s ruling finding defendant failed to present a prima facie case for rescission.\nAssuming defendant established a prima facie case for rescission, defense counsel himself laid substantially all the foundation necessary under Orth for the State to admit the results and rebut defendant\u2019s prima facie case. Under Orth, once a motorist has presented a prima facie case for rescission, the State must lay the following foundation to avoid rescission:\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 machine used was a model 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 Orth, 124 Ill. 2d at 340, 530 N.E.2d at 216-17.\nIn the present case, defense counsel elicited much of this foundational evidence from Officer Kline. Any doubt as to the sufficiency of the foundation was removed by the State\u2019s Attorney when she elicited additional foundational testimony from Kline.\nFor the reasons stated, we affirm the judgment of the trial court.\nAffirmed.\nGARMAN and KNECHT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE COOK" } ], "attorneys": [ "James C. Economy (argued), of Decatur, for appellant.", "Lawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston (argued), all 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. TONY D. BRUMMETT, Defendant-Appellant.\nFourth District\nNo. 4\u201495\u20140402\nArgued November 16, 1995.\nOpinion filed April 26, 1996.\nJames C. Economy (argued), of Decatur, for appellant.\nLawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0421-01", "first_page_order": 439, "last_page_order": 449 }