People v. Eagletail , 2014 IL App (1st) 130252 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Eagletail, 2014 IL App (1st) 130252
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LATESHIA EAGLETAIL, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-13-0252
Filed December 23, 2014
Decision Under Appeal from the Circuit Court of Cook County, Nos. TT-370-264,
Review TT-370-265; the Hon. Michael R. Clancy, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Kathleen Weck, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary P. Needman, and Morgan E. Muslin, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Lavin concurred in the
judgment and opinion.
OPINION
¶1 Defendant Lateshia Eagletail, who was found guilty of two misdemeanor counts of driving
under the influence of alcohol, contends the State failed to offer sufficient evidence that she
was driving under the influence (DUI). She argues the trial court improperly allowed the State
to introduce the results of her breath analysis through a printout (IntoxNet MIS report), where
the State should have been required to offer the actual breath ticket. Eagletail further argues
that in light of the unreliability of the field-sobriety tests and the fact that her breath analysis
results should not have been admitted without the actual ticket, the officers’ observations fall
short of proving she was driving under the influence.
¶2 We hold the trial court did not abuse its discretion in admitting the IntoxNet MIS report
into evidence and that there was sufficient credible evidence to prove Eagletail guilty of DUI
beyond a reasonable doubt. The Illinois Supreme Court in People v. Orth, 124 Ill. 2d 326
(1988), did not say or imply that only the “actual printout” was admissible to show the results
of the breath test.
¶3 BACKGROUND
¶4 The facts pertinent to this appeal are not in dispute.
¶5 At about 10:40 p.m. on July 21, 2010, Officers Lin and Loughney of the Chicago police
department responded to a call of a traffic accident involving an unmarked police car. When
the officers arrived, they saw Eagletail’s van and the unmarked police car bumper to bumper.
Eagletail was seated in the driver’s seat. After running the van’s vehicle identification number,
the officers confirmed Eagletail was the owner. In response to Officer Lin’s questioning about
the cause of the accident, Eagletail told the officers she was having issues with her brakes and
steering.
¶6 Officers Lin and Loughney are experienced officers trained in DUI detection. Lin and
Loughney both testified that Eagletail’s breath smelled strongly of alcohol when they spoke
with her. In response to Officer Loughney’s question about whether she had been drinking,
Eagletail stated she had “two or three beers” and that the punch “may have been spiked.” The
officers recovered an empty beer bottle from inside her van. Officer Loughney noted that
Eagletail’s eyes were bloodshot and she was acting erratically and seemed agitated. Officer
Loughney testified that in her professional opinion, Eagletail was under the influence of
alcohol.
¶7 The officers transported Eagletail to the 8th district police station to undergo field-sobriety
tests. Officer Ernst Mategrano, an expert in DUI and a certified breath tech operator,
administered the field-sobriety tests in accordance with National Highway Traffic Safety
Administration procedures. Officer Mategrano administered three field-sobriety tests to
Eagletail: (1) the horizontal gaze nystagmus (HGN) test (a lateral or horizontal jerking when
the eye gazes to the side), (2) the walk-and-turn test, and (3) the one-legged-stand test.
-2-
¶8 While administering the HGN test, Officer Mategrano held his pen at a 45-degree angle,
six to eight inches from Eagletail at her shoulder level, while he observed her eye movement.
Officer Mategrano instructed Eagletail to follow his pen with her eyes but not to move her
head. Mategrano testified four factors indicate impairment in an HGN test; Eagletail exhibited
six factors, plus vertical nystagmus. She showed horizontal nystagmus in both eyes, maximum
deviation, and lack of smooth pursuit, all indicators of impairment.
¶9 Officer Mategrano instructed Eagletail on the steps of the walk-and-turn test and
demonstrated to Eagletail to take nine heel-to-toe steps and turn, leaving her left foot in place,
and take small steps until she reached nine steps. Eagletail began walking before Mategrano
finished giving her the instructions. Eagletail stopped to steady herself throughout the test, did
not touch heel-to-toe, and turned incorrectly. Eagletail displayed four out of nine clues of
impairment; two clues suffice to indicate impairment.
¶ 10 Mategrano instructed Eagletail during the one-legged-stand test to raise one leg six inches
from the ground with her hands at her side. During the test, Eagletail put her foot down three
times, indicating impairment.
¶ 11 Following the administration of the field-sobriety tests, Officer Mategrano arrested
Eagletail for DUI and asked her to submit to a Breathalyzer test. Eagletail agreed. Officer
Mategrano is a certified breath tech operator and has performed 200 to 300 tests during his
career. The instrument Mategrano used was certified for accuracy and underwent a
self-diagnostic check before Eagletail’s breath test to ensure there was no alcohol in the
instrument. Mategrano entered Eagletail’s information into the instrument, including her
name, birth date and driver’s license number, as well his name as the breath tech operator and
arresting officer. Mategrano instructed Eagletail to take a deep breath and blow into the
machine. The machine captured Eagletail’s breath sample and produced a breath ticket
showing her blood alcohol level was 0.170. The legal limit in Illinois is 0.08.
¶ 12 At the completion of the test, Mategrano recorded the details of Eagletail’s breath test in
the breath analysis logbook, including her name, the date and time of the test, her recorded
blood alcohol level, and his name as both the operator and arresting officer. The logbook
ensures all pertinent information is recorded in the event any paperwork for the breath test is
lost.
¶ 13 Eagletail was charged with two counts of driving under the influence, as well as failure to
avoid an accident, transportation of alcohol, and operating an uninsured vehicle. At her bench
trial, Officer Mategrano opined that Eagletail was under the influence of alcohol. He based this
on the strong alcohol smell of Eagletail’s breath, the clues of impairment she showed during
the field-sobriety tests, and her 0.170 blood alcohol level result on the breath test.
¶ 14 As proof of Eagletail’s intoxication, the State submitted a computer-generated ticket for
Eagletail’s breath test from the Department of State Police–IntoxNet MIS report–and the
logbook. The original breath ticket that physically printed out of the breath machine at the time
of Eagletail’s breath test was lost. The IntoxNet MIS report was generated on June 20, 2012,
and faxed to Officer Mategrano at the police station. All information entered into the breath
test machine had been downloaded onto the Department of State Police’s computer once the
machine’s memory was full. Officer Mategrano testified that the report was “a true and
accurate representation of that breath ticket that was given on July 21, 2010.” The document
contained all and identical information that is on the actual physical printout, including
Eagletail’s name, birth date, and driver’s license number, as well as Officer Mategrano’s name
-3-
as the breath tech operator and arresting officer and the 0.170 breath test result. Eagletail
objected to the IntoxNet MIS report being entered into evidence.
¶ 15 The trial court found Eagletail guilty of the two misdemeanor counts of DUI and acquitted
her of the remaining charges. The court sentenced Eagletail to 24 months’ supervision.
¶ 16 ANALYSIS
¶ 17 Foundation Requirements of Breath Tests
¶ 18 Eagletail contends the trial court erred in admitting evidence of the results of her breath
test. She claims that by failing to produce the actual printout from the breath test machine, the
State failed to satisfy the five foundational requirements for admission of the breath test results
as set forth in People v. Orth, 124 Ill. 2d 326, 340 (1988).
¶ 19 For admission of breath test results, the evidence must show: (1) the tests were performed
according to the uniform standard adopted by the Illinois Department of Public Health; (2) the
operator administering the tests was certified by the Department of Public Health; (3) the
machine used was a model approved by the Department of Public Health, was tested regularly
for accuracy, and was working properly; (4) the motorist was observed for the requisite 20
minutes before the test and, during this period, the motorist did not smoke, regurgitate, or
drink; and (5) the results appearing on the “printout” sheet can be identified as the tests given
to the motorist. Orth, 124 Ill. 2d at 340; People v. Claudio, 371 Ill. App. 3d 1067, 1070 (2007)
(foundation requirements are same in criminal trial). Both parties agree that the first four
factors are satisfied; at issue is only the final factor. We review de novo whether the State’s
introduction of Eagletail’s breath analysis results, via the IntoxNet MIS report, satisfies the
fifth factor of Orth. In re C.N., 196 Ill. 2d 181, 203 (2001).
¶ 20 Eagletail argues that the fifth factor in Orth requires the State to produce the actual printed
breath ticket from the machine. We disagree. Eagletail’s interpretation of what our supreme
court intended is far too constricting. Orth does not state that it is necessary to produce the
actual printout; it merely requires the production of evidence showing that the results of the
breath test can be identified as those of the defendant. If the Illinois Supreme Court meant to
only allow the “actual printout,” the fifth factor would have so required.
¶ 21 No court has analyzed the fifth factor from Orth and few have mentioned it. See People v.
Clark, 178 Ill. App. 3d 848, 857 (1989) (fifth factor described as “test results were identified as
those of defendant”); People v. Caruso, 201 Ill. App. 3d 930, 942 (1990) (“[t]he fifth factor
mentioned in Orth requires evidence that the results on the printout sheet can be identified as
the test given defendant,” but adds no further detail, saying it is “self-explanatory”).
¶ 22 The question is whether the State presented evidence establishing that the results of the
breath test were in fact Eagletail’s. Officer Mategrano’s testimony connected the results on the
IntoxNet MIS report to the results he observed on the night he administered the breath test to
Eagletail. The report contains all the same identifiable information that is contained on the
actual printout, including Eagletail’s name, birth date, and driver’s license number, as well as
Officer Mategrano’s name as the breath tech operator and arresting officer and the 0.170 breath
test result. Officer Mategrano’s testimony captured all the information of the actual breath
analysis test and, accordingly, established Orth’s fifth factor.
¶ 23 During oral argument, Eagletail argued that because Orth was decided before today’s
modern technology, it should be interpreted as requiring only the original paper report. If at all
-4-
possible, existing law should follow technology’s advancements. See State v. Brereton, 2013
WI 17, ¶ 51, 345 Wis. 2d 563, 826 N.W.2d 369 (court refused to read language in warrant as
binding law enforcement to specific GPS technology based on type of GPS technology used in
previous case, finding “the officers used technology reasonably contemplated under the
warrant, whereby the officers were able to increase their efficiency, at no demonstrated,
unreasonable cost to the Fourth Amendment interests of [defendant]”).When old ways of
doing things are abandoned, the law should be receptive to adopting to the new technology as
long as the law can be read to prescribe it. Otherwise, the law becomes a constant obstacle to
technological progress. Here, the fifth factor can be interpreted to encompass the computer
record.
¶ 24 Admissibility of the IntoxNet MIS Report as a Business Record
¶ 25 Eagletail next contends that even if the IntoxNet MIS report properly satisfied the fifth
factor of Orth, the State failed to show the report fulfilled the statutory requirements to qualify
as a business record and, therefore, should not have been admitted into evidence. Eagletail
claims the State introduced the report solely on Officer Mategrano’s testimony and he “lacked
any familiarity with the manner in which the document was prepared.”
¶ 26 A trial judge’s evidentiary rulings, including the determination of whether or not business
records are admissible, will not be disturbed on review absent an abuse of discretion. People v.
Morrow, 256 Ill. App. 3d 392, 396 (1993). As a reviewing court, we only will reverse when the
ruling was “arbitrary, fanciful or unreasonable” or “no reasonable [person] would take the
view adopted by the trial court.” (Internal quotation marks omitted.) People v. Donoho, 204 Ill.
2d 159, 182 (2003).
¶ 27 The IntoxNet MIS report was entered into evidence under the business records exception to
the hearsay rule. Breath test tickets and supporting documents are hearsay but admissible
under the business record exception. People v. Russell, 385 Ill. App. 3d 468, 475 (2008).
Illinois Rule of Evidence 803(6) provides that “records of regularly conducted activity” are not
considered inadmissible hearsay where they constitute:
“A memorandum, report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the testimony of the
custodian or other qualified witness, or by certification that complies with Rule
902(11), unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness, but not including in criminal cases
medical records.” Ill. R. Evid. 803(6) (eff. Jan. 1, 2011).
¶ 28 The party seeking the document’s admission into evidence as a business record must lay an
adequate foundation by showing the record was (1) a memorandum or record of the act, (2)
made in the regular course of the business, and (3) made at the time of the act or within a
reasonable time after. Morrow, 256 Ill. App. 3d at 397.
¶ 29 Through Officer Mategrano’s testimony, the State satisfied the business records
foundational requirements for admissibility of the IntoxNet MIS report. Mategrano testified
the report was a record of Eagletail’s breath test results and that the record was made in the
-5-
regular course of business. He testified the report accurately depicted Eagletail’s results as he
recorded them on July 21, 2010. While the report was “generated” almost two years after the
breath test had been administered, Officer Mategrano’s testimony confirmed that the
information in the report was stored as soon as it was entered into the breath test machine and
then transmitted and stored remotely at the Department of State Police when the machine’s
memory became full.
¶ 30 We disagree with Eagletail that Officer Mategrano’s testimony could not satisfy the
foundational requirements because he lacked sufficient knowledge of the manner in which the
document was prepared. Generally, the maker of the record need not testify. People v.
Hutchison, 2013 IL App (1st) 102332, ¶ 21. Anyone familiar with the records and the business
can testify to provide the necessary foundational testimony. Id. (“Section 11-501.4 [of the
Vehicle Code] is clear in its requirements and the statute makes no mention of requiring
familiarity with the actual making of the record.”); see 725 ILCS 5/115-5(a) (West 2010) (“All
other circumstances of the making of such writing or record, including lack of personal
knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances
shall not affect its admissibility.” (Emphasis added.)).
¶ 31 Officer Mategrano was qualified to provide the foundational requirements necessary to
admit the report into evidence. He knew that once entered into the machine, the information
was stored and then transferred to the Department of State Police. He performed hundreds of
tests over the years and was obviously familiar with how the DUI unit’s business operations
functioned.
¶ 32 Eagletail relies on People v. Virgin, 302 Ill. App. 3d 438, 449-50 (1998), to support her
position. In Virgin, the court found the State failed to lay a proper foundation for the admission
of an animal control receipt into evidence under the business records exception because the
State did not present any testimony that the receipt was made in the regular course of business,
that receipts were made in the regular course of business, or that the receipt was made at or
near the time of the transaction being recorded. Id. Unlike in Virgin, Officer Mategrano’s
testimony established sufficient foundation to establish the report was prepared in the regular
course of business. Mategrano testified that he had performed hundreds of breath tests with the
machine used to administer Eagletail’s test. He knew that the information he entered into the
machine was stored until the machine’s memory was full and then it was transferred to a
computer at the Department of State Police.
¶ 33 Sufficiency of the Evidence
¶ 34 Eagletail next argues that the evidence presented at trial was insufficient to support finding
her guilty of driving under the influence under section 11-501(a)(2) of the Illinois Vehicle
Code (Code) (625 ILCS 5/11-501(a)(2) (West 2010)). Eagletail claims the State failed to
present sufficient evidence of impaired driving to prove the charge beyond a reasonable doubt.
¶ 35 When a defendant challenges the sufficiency of the evidence to sustain his or her
conviction, as a reviewing court we must look at all the evidence in the light most favorable to
the State to determine if any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). The trier
of fact assesses the credibility of the witnesses, weighs the testimony, and draws reasonable
inferences from the evidence. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). We will not set aside
a criminal conviction unless the evidence appears so improbable or unsatisfactory that it
-6-
creates a reasonable doubt as to the defendant’s guilt. People v. Cox, 195 Ill. 2d 378, 387
(2001).
¶ 36 To sustain a conviction under section 11-501(a)(2) of the Code, the State must prove
beyond a reasonable doubt that the defendant was (1) in actual physical control of a vehicle and
(2) under the influence of alcohol at the time. 625 ILCS 5/11-501(a)(2) (West 2010); People v.
Diaz, 377 Ill. App. 3d 339, 344 (2007). Also, the State must prove the defendant’s ability to
operate a motor vehicle was impaired by the consumption of alcohol. Diaz, 377 Ill. App. 3d at
344. The State can use circumstantial evidence to prove a defendant guilty of DUI. Id. at 345.
¶ 37 The trier of fact could reasonably infer, based on the evidence, that Eagletail was driving
the motor vehicle. When Officers Lin and Loughney arrived at the scene they observed
Eagletail alone in a van that belonged to her. When the officers asked Eagletail what happened
in regard to the van hitting the unmarked police car, she responded that there was an issue with
her brakes and steering. All these observations provide strong circumstantial evidence that
Eagletail was driving.
¶ 38 Eagletail contends the State presented insufficient evidence to prove she was intoxicated
beyond a reasonable doubt. Nevertheless, the credible testimony of the arresting officer by
itself can sustain a conviction of driving under the influence. People v. Morris, 2014 IL App
(1st) 130152, ¶ 20; People v. Janik, 127 Ill. 2d 390, 402-03 (1989) (arresting officer’s
testimony about odor of alcohol, defendant’s watery eyes, and defendant’s poor performance
on field-sobriety tests sufficient evidence of intoxication). Officers Lin, Loughney, and
Mategrano, all with extensive training and experience, opined Eagletail was intoxicated. All
three officers smelled a strong odor of alcohol on Eagletail’s breath. When questioned about
whether she had been drinking, Eagletail responded that she had had two or three beers and
some punch that may have been spiked with alcohol. Eagletail also failed all three
field-sobriety tests Officer Mategrano administered at the police station. The credible
testimony of these three officers, all present around the time of Eagletail’s arrest, was
sufficient to establish Eagletail’s intoxication.
¶ 39 Eagletail also claims that the field-sobriety tests were improperly administered and,
therefore, resulted in invalid tests. We do not find Eagletail’s argument persuasive. Whether a
field-sobriety test was performed correctly goes to the test’s admissibility. See People v.
McKown, 236 Ill. 2d 278, 305-11 (2010). Even if true that the tests were performed incorrectly,
and admitted in error, it was harmless because the testimony of Officers Mategrano, Lin, and
Loughney presented sufficient evidence to prove Eagletail was intoxicated. Before the
administration of the field-sobriety tests, Officers Lin and Loughney determined that Eagletail
was intoxicated. Officer Mategrano also determined she was intoxicated before he
administered the field-sobriety tests, as well as from the results of her breath test. Moreover,
we see no reason to depart from settled Illinois case law that has held the tests to be reliable.
People v. Robinson, 349 Ill. App. 3d 622, 631 (2004) (“HGN test, when used with the
walk-and-turn and one-leg stand tests, is the most accurate and effective method of detecting
impairment” (citing National Highway Traffic Safety, U.S. Department of Transportation,
Psycho-Physical Tests for DWI Arrests, No. DOT-HS-802-424, at 39 (June 1977))); McKown,
236 Ill. 2d at 302-03 (2010) (“A failed HGN test is relevant to impairment in the same manner
as the smell of alcohol on the subject’s breath or the presence of empty or partially empty
liquor containers in his car. Each of these facts is evidence of alcohol consumption ***.”).
-7-
¶ 40 Merging Misdemeanor DUI Convictions
¶ 41 We agree with Eagletail, and the State concedes, that the mittimus should be corrected to
reflect only one conviction for DUI because there was only one occasion. People v. King, 66
Ill. 2d 551, 566 (1977). Thus, under Supreme Court Rule 615(b)(1), we vacate the DUI
conviction under count IV and correct the mittimus to reflect judgment on count V.
¶ 42 CONCLUSION
¶ 43 We find the trial court did not abuse its discretion in admitting the IntoxNet MIS report into
evidence and that there was sufficient credible evidence to prove Eagletail guilty of DUI
beyond a reasonable doubt. We also merge the DUI convictions.
¶ 44 Affirmed.
-8-