Illinois Brief on DUI Law - Breath Test with GERD

POINTS AND AUTHORITIES

PAGE

STANDARD OF REVIEW

THE DE NOVO STANDARD OF REVIEW APPLIES HERE ....................................6

People v. Bavas , 251 Ill.App.3d 720, 623 N.E.2d 876 (Ill. App. 2 ^nd Dist., 1993) .....................6

People v. Krueger , 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996)...........................................6

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION FOR A DIRECTED FINDING AT THE DEFENDANT'S SUMMARY SUSPENSION HEARING WHEN THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE RESULTS OF THE BREATHYLZER WERE INVALID.

•A. The Defendant presented a prima facie case for a rescission under People v. Orth because the Defendant effectively casted doubt on the accuracy of the breathalyzer used on the Defendant.

People v. Stanton , 269 Ill.App.3d 654,

646 N.E.2d 957 (Il. App. 2 ^nd Dist., 1995) ...............................................13

People v. Orth , 124 Ill.2d 326,

530 N.E.2d 210 (Il. S. Ct.,1988).........................................................13

• i. The Defendant presented credible and unrebutted evidence that he was not under the influence of alcohol.

People v. Bavas , 251 Ill.App.3d 720,

623 N.E.2d 876 (Ill. App. 2 ^nd Dist., 1993) ...............................14, 17

People v. Orth , 124 Ill.2d 326,

530 N.E.2d 210 (Il. S. Ct.,1988)..............................14, 15, 17

• ii. The Defendant presented credible evidence of acid reflux and burping that established the inaccuracy of the breath test.

People v. Bavas , 251 Ill.App.3d 720,

623 N.E.2d 876 (Ill. App. 2 ^nd Dist., 1993) ............................18

People v. Bertsch , 183 Ill.App.3d 23,

538 N.E.2d 1306, 1309 (Ill. App. 2 ^nd Dist., 1989) ...............17, 18

People v. Bonutti , 338 Ill.App.3d 333,

788 N.E.2d 331 (Ill. App. 5 ^th Dist., 2003) ........................17, 18

People v. Lindmark , Ill.App.3d 638,

887 N.E.2d 606 (Ill. App. 4 ^th Dist., 2008) ............................17

People v. Orth , 124 Ill.2d 326,

530 N.E.2d 210 (Il. S. Ct.,1988)................................. 17, 18

II. THE TRIAL COURT IMPROPERLY EXCLUDED THOSE PORTIONS OF THE DEFENDANT'S MEDICAL RECORDS THAT CONTAINED HIS OWN STATEMENTS THAT WERE MADE FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. SUCH STATEMENTS ARE AN EXCEPTION TO THE HEARSAY RULE AND WERE HENCE IMPROPERLY EXCLUDED.

•A. The Defendant's statements that he made to his doctor about his acid reflux were made in the course of a medical diagnosis or treatment and are an exception to hearsay.

People v. Graney , 234 Ill.App. 497,

505 N.E.2d 574 (Ill. App. 2 ^nd Dist., 1992) ..............................................19

Raithel v. Dustcutter , 261 Ill.App.3d 904,

634 N.E.2d 1163 (Ill. App. 4 ^th Dist., 1994) .............................................19

Troyan v. Reyes , 367 Ill.App.3d 729,

855 N.E.2d 967 (Ill.App. 3 ^rd Dist., 2006) ...............................................19

•B. If the Court determines that portions of the medical records were admissible, then the Trial Court's ruling cannot be affirmed. Rather, the case must be remanded in light of the additional evidence, in order for the Trial Court to reconsider the weight and credibility of the additional evidence.

People v. Marsala , 376 Ill.App.3d 1046,

877 N.E.2d 1167 (Ill. App. 2 ^nd Dist., 2007) .............................................20

SUPREME COURT RULES

Supreme Court Rule 301, 155 Ill.2d R. 301...............................................................5

Supreme Court Rule 236, 145 Ill.2d R. 236..............................................................19

STATUTES

625 ILCS 5/2 - 118.1(b)................................................................................................................19

LEARNED TREATISES

Michael H. Graham, Cleary and Graham's Handbook of Illinois Evidence,

§803.8, 707 (8 ^th ed., 2004) .........................................................................19

NATURE OF THE CASE

This is an appeal by the Defendant from a final judgment denying his Petition to Rescind his Summary Suspension. (C. 46). The facts are undisputed. The Defendant was arrested on October 10, 2008 for DUI by Officer Cribaro of the City of Naperville and the Defendant filed a petition to rescind the summary suspension on October 21, 2008 (C. 18, see appendix 1). The Defendant's summary suspension hearing began on November 25, 2008 and was concluded on December 9, 2008. (C. 59 & C. 173).

At the hearing, the Defendant testified that he was pulled over by a Naperville Police Officer on his way home from work. (C. 106). The Defendant further testified that he was not under the influence of alcohol. (C. 107 & C. 122). He also testified that he felt his acid reflux medication wearing off and that he burped during the twenty minute observation period before his breath test. (C. 73 - 74). Officer Cribaro testified about what observations led him to believe that the Defendant was under the influence of alcohol and why he arrested the Defendant for driving under the influence of alcohol. (C. 115 - 134).

At the conclusion of the Defendant's case, the Court granted the State's motion for a directed finding because the Defendant had not made a prima facie case for a rescission. (C. 127). The Defendant argued that the burden should be shifted to the State because the Defendant had made a prima facie case that the breathalyzer result was inaccurate under the standard set forth in People v. Orth . (C. 122 - 123). The Court ultimately denied the Defendant's Petition to Rescind the Summary Suspension on December 8, 2008. (C. 46). The Defendant filed his timely Notice of Appeal on December 31, 2008. (C. 54)

ISSUE PRESENTED FOR REVIEW

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION FOR A DIRECTED FINDING AT A SUMMARY SUSPENSION HEARING WHEN THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE BREATHYLZER RESULT WAS INVALID.

II. WHETHER THE TRIAL COURT ERRED BY EXCLUDING THE DEFENDANT'S STATEMENTS MADE FOR THE PURPOSE OF A MEDICAL DIANGOSIS OR TREATMENT.

JURISDICTIONAL STATEMENT

This appeal is taken as a matter of right under Supreme Court Rules 301 and 303(a)(1), which govern appeals from final judgments in civil proceedings. Supreme Court Rule 301 provides that every final judgment of a circuit court in a civil case is appealable as of right. 155 Ill.2d R. 301. Rule 303(a)(1) provides, in relevant part, that the notice of appeal from final judgments in civil cases "must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." 155 Ill.2d R. 303(a)(1).

The judgment denying the Defendant's Petition to Rescind was entered on December 9, 2008 (C. 46, see appendix 2). The Notice of Appeal was timely filed with the clerk of the circuit court on December 31, 2008. (C. 54, see appendix p. 3)

STANDARD OF REVIEW

When ruling on a motion for a directed finding, a court cannot "arbitrarily or capriously reject the testimony of an unimpeached witness," People v. Bavas , 251 Ill.App.3d 720, 724, 623 N.E.2d 876, 879 (Ill. App. 2 ^nd Dist., 1993) . Because the facts are not in dispute, whether court improperly granted the State's motion for a directed finding is wholly a question of law and should be reviewed de novo. People v. Krueger , 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996). Thus, this appeal should be reviewed under the de novo standard.

STATEMENT OF FACTS

On October 10, 2008, the Defendant-Appellant Craig Woods was arrested for Driving Under the Influence of Alcohol, Improper Turn, and Following Too Closely (C. 1 - 5). The Defendant's summary suspension hearing started on November 25, 2008 and concluded on December 9, 2008 (C. 59 & C. 107). At the hearing, the Defendant and Officer Cribaro were called to testify. (C. 62 & C. 115). The Defendant testified on direct examination that on October 9, 2008, he worked at Johnson and Quinn from approximately 12:00 or 1:00 PM, until about 10:45 PM. (C. 63 - 64). After work, the Defendant went with a couple co-workers to a local bar in Niles. (C. 64). At the bar, he had two Captain Morgan Rum and Cokes. (C. 65). While driving home to Naperville, the Defendant took Route 59 southbound and turned westbound onto North Aurora Road. (C. 65). After he was stopped by a Naperville police officer, the Defendant produced his driver's license and insurance without difficulty to the officer. (C. 66). The officer asked the Defendant if he had been drinking and the Defendant stated that he had "a couple Captain and Cokes." (C. 66). The Officer then asked the Defendant to exit his car and walk to the sidewalk to perform field sobriety tests. (C. 66 - 67).

On the first test, the Officer checked the Defendant's eyes by asking the Defendant to follow his finger. The Defendant did so without any problems. (C. 67 - 68). For the second test, the Officer requested the Defendant to walk a line, heal-to-toe, on the edge of the sidewalk. (C. 68). The Defendant testified that he had "pretty good" balance on the walk-and-turn test and that alcohol did not affect his performance on the walking test. (C. 68). Then, the Officer asked the Defendant to stand on one foot and count to thirty. (C. 69). The Defendant performed this test twice for the Officer. (C. 69 - 70). The first time, the Defendant put his foot down only twice when counting to thirty. (C. 69). While performing the test the second time, the Defendant did not put his foot down for the entire thirty seconds. (C. 70). Even though the Defendant did not put his foot down on the second performance, he still conceded that he had a little difficulty with the test because he does not balance on one leg very often. (C. 70).

The last test the Defendant performed was the alphabet test. (C. 71 - 73). The Officer requested the Defendant to recite the letters "C" through "W". (C. 71). The Defendant mumbled the letters "A" and "B" to himself and recited "C" through "W" without any problems on his first attempt. (C. 71). On the second attempt, the Defendant recited "C" through "W" again without reciting any of the letters out of sequence. (C. 72 - 73). After the alphabet test, the Defendant was arrested and taken to the police station. (C. 73). Despite the arrest, the Defendant testified that alcohol did not affect his ability to control his vehicle, that alcohol did not have any effect on any part of him that night, and that he was not under the influence of alcohol. (C. 69 & 90).

Approximately twenty minutes before the breath test at the police station, the Defendant waited alone in a small holding cell for the Officer to return. (C. 73). The officer was in the Defendant's presence for only a portion of the mandatory twenty minute observation period, and during that portion the officer was completing paperwork. (C. 73). During this twenty minute period, the Defendant felt his acid reflux medicine, Prilosec, wearing off. (C. 73 - 74). As a result, the Defendant felt a burning sensation in his chest and stomach. (C. 74). Shortly thereafter, the Defendant started burping during the twenty minutes before the breath test. (C. 74).

Continuing, the Defendant testified that he had previously seen two physicians, Dr. Gallagher and Dr. Fury from the DuPage Medical Group, about this condition and that they had prescribed the Defendant 40 milligrams of Prilosec. (C. 75). Prior to this arrest, the Defendant had been complaining about his acid reflux to a physician for about ten years and has been using medication to treat his acid reflux for about nine to ten years as well. (C. 84). The Defendant brought his medical records to court and testified that the records accurately contained his complaints to his doctors about acid reflux. (C. 84).

After the Defendant's testimony about his physical condition, the Defense moved for that portion of medical records which contained his acid reflux complaints to be admitted into evidence for the limited purpose of showing the Defendant's then existing physical complaints, as an exception to the rule of hearsay. (C. 86). The State objected to the admission of the records, arguing that the medical records were business records and no foundation was properly laid. (C. 86 - 87). The Trial Court sustained the State's objection, but were sealed and made a part of the trial record. (C. 90 & see C. 49).

On the State's cross-examination of the Defendant, the Defendant stated that he did not have anything to drink before arriving at the bar in Niles, but could not recall the name of the bar because he had only worked at his job for a couple of weeks. (C. 90 - 91). At the bar, the Defendant's co-workers ordered the drink and the Defendant testified that it was served in a "big glass." (C. 91). The Defendant elaborated that twenty-five minutes had passed before the Defendant drank his second Captain and Coke and that the second drink was the same size as the second drink (C. 91 - 92). It took the Defendant about fifteen minutes to drink his second drink. (C. 92 & C. 93). He did not mix the drink, therefore, he could not say with certainty exactly how much alcohol was in both drinks. (C. 91).

On his way home, the Defendant took I-294 South to I-88 West to Route 59. (C. 93). Although the Defendant could not recall which time he left the bar, he stated that he did not make any stops and was on the road about a half hour before he was pulled over a few minutes after 12:00 AM. (C. 93). The Defendant admitted that during his entire drive from Niles to Naperville, he could not say with certainty that he did not ever violate a single traffic law. (C. 93). However, while in Naperville (the City where he was arrested) the Defendant testified that he was driving the speed limit of 40 mph and that the nearest car in front of him was between three and four car lengths ahead of him. (C. 98 - 99). Upon further cross-examination by the prosecutor, the Defendant stated that he had experienced other events in his life since the incident and therefore could not recall many of the smaller details about that night. (C. 100 - 101).

In the Defendant's backseat of his car, an Igloo zip insulated lunch bag contained an open bottle of Captain Morgan's Rum that was almost empty. (C. 102 & 103). In addition, a co-worker left a cup of Captain Morgan's and Coke in the front seat of his car after the Defendant dropped his co-worker off at the office on his way home from the bar. (C. 103).

Officer Cribaro testified after the Defendant. (C. 115). On direct examination, he testified that the first field sobriety test he administered on the Defendant was the HGN (Horizontal Gaze Nystagmus) test. (C. 116). The officer then confirmed that the Defendant's recollection of the alphabet test was accurate. (C. 119 - 120). The police officer also admitted that he could not "recall" whether he had testified on the day prior to the Defendant's hearing that the alphabet test was or was not a valid test of intoxication. (C. 119 - 120; C. 140). Regarding the one-legged stand test, the officer also confirmed that the Defendant' recitation of the test was accurate; the officer further stated that he considered the Defendant to have successfully passed the one-legged stand test on the second attempt. (C. 121).

While testifying about the walk-and-turn test, the officer stated that the Defendant stepped off the line three times and missed heel-to-toe four times throughout the entire 18 steps of the test. (C. 121 - 122). However, the officer admitted that the Defendant did not raise his arms, did not begin the test before being instructed to do so, and that the defendant maintained the starting position while the entire instructions were given for 15 - 30 seconds. (C. 122 - 123). Further, the officer stated that the Defendant performed the turn correctly, and took the correct number of steps during the test. (C. 122 - 123). The officer ultimately arrested the Defendant based on his observations of glassy eyes, slurred speech, the odor of alcohol, the Defendant's statements that he drank a Captain and Coke, the open bottle of Captain Morgan Rum in the vehicle, an open alcoholic container of Captain Morgan Rum in the backseat, and his performance on the field sobriety tests (C. 124).

The officer never addressed the Defendant's burping or acid reflux during the twenty minute observation period prior to the breath test.

On cross-examination, the officer opined that the Defendant failed the walk-and-turn and repeated his prior observations about the Defendant's person (C. 134 - 135). The officer also testified that the Defendant claimed he drank half the bottle of Captain Morgan's Rum but did not indicate when the Defendant claimed he drank it. (C. 138).

At the close of the Defendant's case, the State made a motion for a directed finding. (C. 143). The State argued that the odor of alcohol, the Defendant's glossy eyes, the admission of drinking a Captain and Coke, the failed field sobriety tests, and the failed alphabet test gave the officer probable cause to arrest the Defendant for driving under the influence of alcohol. (C. 144). The State further argued that the Defendant's testimony was not credible because he could not recall, with certainty, whether he violated any traffic laws from the time he left the bar to when he was stopped, that the Defendant had difficulty recalling some of the minute details about the night in question, and that the Defendant "changed his stories." (C. 146 - 148).

Regarding the validity of the breath test, the State argued that the Defendant did not present a prima facie case because there was no testimony as to the effects of GERD, no expert testified, and that the case People v. Lindmark removed regurgitation as a basis for invalidating the breath test under the Illinois Administrative Code, which governs the procedure on breathalyzer tests. (C. 149 - 150).

The Defendant argued that he had made a prima facie case because he presented sufficient evidence that was unrebutted by the State. (C. 152). The Defendant met his burden under People v. Orth by presenting evidence about the Defendant's sobriety during the arrest, as well as evidence of acid reflux and burping in the twenty minutes before the breathalyzer test. (C. 154 - 156). In response to the State's argument about the Defendant's credibility, the Defense reminded the Court that even though the Defendant is not a trained witness, he was still able to recall and elaborate about the important facts of the night in question. (C. 151). Furthermore, the defense argued that even if regurgitation is no longer listed as a violation of Illinois Administrative Code, any action that may invalidate the accuracy of a breath test under purely scientific principles is an appropriate basis to cast doubt on the accuracy of the test, and is at least enough to shift the burden to the State to prove the accuracy of the test under People v. Orth . (C. 157 - 158). As an example, the defense pointed out to the trial court that even burping is not listed under the Code; yet it is considered an act that can invalidate a test result according to People v. Bertsch . The Defense argued that, when taking the evidence in the light most favorable to the petitioner, the Defendant's unrebutted and unimpeached evidence constituted a prima facie case for a rescission and the State's motion for a directed finding should have been denied. (C. 163).

The Trial Court granted the State's motion for a directed finding and confirmed the Defendant's summary suspension. (C. 46). The Court stated that the officer had reasonable grounds to stop the vehicle because the Defendant did not testify that he did not violate any traffic laws. (C. 169 - 170). Furthermore, the Court had concerns about the Defendant's recollection of the events because he testified that the events happened "a long time ago," and could not recall some specific details about the night. (C. 168). In addition, the Court found that the officer had probable cause to arrest the Defendant based on the officer's testimony that the Defendant had glassy eyes, slurred speech, admitting drinking rum, and found rum in his car. (C. 170). The Court also ruled that the Defendant failed to present a prima facie that the breathalyzer results were invalid because the Defendant did not testify that contents from his stomach were brought up into this mouth, there was no testimony that the Defendant's acid reflux (or GERD) would invalidate the test, and no testimony was offered by any medical personnel. (C. 172 - 173). Thus, the Court ruled that the Defendant had not made a prima facie case for a rescission and granted the State's motion for a directed finding. (C. 173).

ARGUMENT

In this case, the Court erred when it granted the State's motion for a directed finding, ruling that as a matter of law, the Defendant failed to make a prima facie case for a rescission. (C. 173). In order to make a prima facie case at a summary suspension hearing, the Defendant must present evidence that is sufficient to establish a fact that will remain sufficient to rescind if it remains rebutted. People v. Stanton , 269 Ill.App.3d 654, 656, 646 N.E.2d 957, 959 (Il. App. 2 ^nd Dist., 1995) . To prove that a breath test is unreliable, the Defendant may present " any circumstance which tends to case doubt on the test's accuracy, including, but not limited to, credible testimony by the motorist that he was not under the influence of alcohol [emphasis added]," People v. Orth , 124 Ill.2d 326, 341, 530 N.E.2d 210, 212 (Il. S. Ct.,1988). Once the Defendant meets his burden of presenting a prima facie case that the breathalyzer is inaccurate, then the State must demonstrate the accuracy of the breathalyzer test. Id. at 332. At the summary suspension hearing, the Defendant presented evidence that he was not under the influence of alcohol, evidence of acid reflux, and evidence of burping during the twenty minute observation period. (C. 62 - 114). Because this evidence was unrebutted, the Defendant easily met its burden of making a prima facie case for a rescission.

• i. The Defendant presented credible and unrebutted evidence that he was not under the influence of alcohol.

According to People v. Orth , the Defendant's testimony that he was not under the influence of alcohol may be used to cast doubt on the accuracy of the breathalyzer. Orth , 124 Ill.2d at 341. At the summary suspension hearing, the Defendant provided numerous examples of his sobriety. (C. 62 - 115). Furthermore, both the State's cross-examination of the Defendant and the testimony of the arresting officer failed to contradict or impeach the Defendant's testimony. (C. 61 - 145). Since the Defendant's testimony was unimpeached and uncontradicted, the court is bound by the rules of accepting unrebutted testimony when ruling on a motion for a directed finding. Bavas , 251 Ill.App.3d at 724.

At the summary suspension hearing, the Defendant was able to recall when he left work, where we went after work, what he had to drink at the bar (2 Captain and Cokes) and was able describe the route he took when driving home. (C. 64 - 66). After the officer stopped the Defendant, the Defendant produced his driver's license and insurance without difficulty, and answered the officer's questions truthfully by telling the officer that he drank a couple Captain and Cokes. (C. 66). Upon the officer's request to exit his car, the Defendant complied, stepped outside his car, and walked up a hill without any difficulty balancing. (C. 66 - 67). None of these facts were rebutted or impeached by the cross-examination of the Defendant or the officer's testimony.

The Defendant then provided specific details about his field sobriety tests. On the first test, he described that the officer had him walk heel-to-toe on the edge of a sidewalk. (C. 68). Despite wearing soccer-style shoes with bad soles, the Defendant's balance on the walking test was "pretty good." (C. 68). Although the officer scored the Defendant's walk-and-turn test as a "fail," the Defendant performed a substantial portion of the test correctly: he performed the correct number of steps, did not raise his arms to balance, maintained the heel-to-toe position during the instructions, and only stepped off the line three times out of a total of eighteen steps. (C. 122 - 123). Therefore, both the Defendant's and the officer's testimony about the walk-and-turn test were consistent. Given the different standard the officer uses to score the test, having the officer score the test a "fail" is not inconsistent with the Defendant's belief that his performance on the test was "pretty good."

In addition, the Defendant's recollection of the two one-legged stand tests he took was unrebutted by the officer's testimony. (C. 68 - 70; C. 121). Both witnesses testified that the Defendant put his foot down twice during the first performance and zero times during the second performance of the test. (C. 69 - 70; C. 121). Furthermore, the fact that the Defendant definitively passed the test on his second try is strong evidence of his sobriety. First, he did not acknowledge that he was too intoxicated to pass the test despite putting his foot down twice in the entire thirty seconds. Second, after balancing on one leg for thirty seconds, it is fair to infer that his leg was likely fatigued by the performance of the first one-legged stand test. However, the Defendant passed the test the second time despite this fatigue. Third, standing on one leg for thirty seconds is not something that an average person does on an every-day basis, yet, the Defendant still passed the second test. Therefore, the Defendant's performance on the one-legged stand is supportive evidence of his sobriety and should have been considered by the Trial Court in its determination of whether any evidence (in this case the Defendant's testimony) casted doubt on the accuracy of the breathalyzer test under People v. Orth . 124 Ill.2d at 341.

The last field sobriety test administered on the Defendant was the alphabet test. Again, the Defendant's recollection of his performance on the alphabet test was unrebutted by the officer's testimony. (C. 71 - 73; C. 119 - 120). The Defendant performed two alphabet tests without stating any letters out of sequence. (C. 71 - 73; C. 119 - 120). The Defendant did recite the letters "A" and "B" before starting the first test, however, the error of these recitations are de minimus when analyzing the totality of his performance on test. (C. 71). In addition, although the Court found that the Defendant's testimony lacked credibility because he could not remember a few specific details about the events that occurred over a month ago, the officer could not recall what he previously testified to the day before. (C. 140). When the officer was asked whether he recalled testifying the day before that he "believed the alphabet was not a valid test of intoxication?" his response was "I don't recall, sir." (C. 120). Which is more credible: When the Defendant, as a lay witness, states under oath that he cannot remember every minut detail of his arrest? Or when a police officer, who testifies frequently as a professional witness, cannot remember his testimony on a simple topic from the day before? However, the Trial Court completely ignored this significant impeachment of the police officer in its ruling. (C. 168 - 173).

When the entire interaction between the Defendant and the police officer is analyzed in its entirety, the Defendant presented credible evidence that he was not under the influence. He answered the officer's questions truthfully and coherently, did not have any balance or coordination problems consistent with intoxication, and performed well on all the field sobriety tests. Any memory recall problems the Defendant may have had were miniscule compared to all the other facts he was able to recall. In addition, the officer's own memory was significantly impeached when he could not recall a small part of his testimony when only a day had passed. Most importantly, the Defendant's testimony was never impeached or contradicted by the officer's testimony. Therefore, under People v. Bavas , when ruling on the State's motion for a directed finding, the Trial Court should have found that the Defendant sufficiently presented a prima facie case for a rescission and denied the State's motion. 251 Ill.App.3d at 724. Also, combined with the testimony about the Defendant's acid reflux, the Defendant presented sufficient evidence of his sobriety to shift the burden under People v. Orth . 124 Ill.2d at 341.

• ii. The Defendant presented credible evidence of acid reflux and burping that established the inaccuracy of the breath test

In order to make a prima facie case for a rescission based on an inaccurate breathalyzer result, the court must consider any evidence that casts doubt on the accuracy of the breathalyzer result. Orth , 134 Ill.2d at 341. In addition, evidence that the Defendant had "GERD" or acid reflux is a valid basis for suppressing the results of a breathalyzer test. People v. Bonutti , 338 Ill.App.3d 333, 334 788 N.E.2d 331, 334 (Ill. App. 5 ^th Dist., 2003) . Although "burping" during the twenty minute observation is not considered to violate the Illinois Administrative Code for administering a breath test, ( see People v. Lindmark , Ill.App.3d 638, 660, 887 N.E.2d 606, 624 - 625 (Ill. App. 4 ^th Dist., 2008 )), "burping" is an affirmative defense "which tends to establish the inaccuracy of the breathalyzer results in spite of compliance with the departmental regulations for purposes of establishing admissibility," People v. Bertsch , 183 Ill.App.3d 23, 27, 538 N.E.2d 1306, 1309 (Ill. App. 2 ^nd Dist., 1989) . Therefore, the Defendant made a prima facie case that the breathalyzer was inaccurate because he presented unrebutted and unimpeached testimony about his acid reflux during the twenty minute observation period.

In the instant case, the Defendant provided unrebutted testimony that casted doubt on the accuracy of the breathalyzer. (C. 73 - 75). The Defendant stated that he has been taking 40 mg of Prilosec everyday for nine or ten years for his acid reflux. (C. 75 & 84). He also told the court that two doctors, Dr. Gallagher and Dr. Fury, had seen him for the purpose of treating his acid reflux. (C. 74). During the twenty minute observation period before the Defendant took the breathalyzer test, the Defendant testified that he felt his Prilosec, "wearing off." (C. 73). Because his medicine was wearing off, the Defendant started "getting a lot of burning in the chest and in the stomach," and then started burping. (C. 73). The Defendant felt these burning sensations in his stomach and chest during the twenty minute observation period. (C. 73).

Under People v. Bertsch , the Defendant's testimony about his burping is an affirmative defense and could have caused in inaccurate breathalyzer test. 183 Ill.App.3d at 27. In addition, acid reflux has been found to cause inaccurate breath tests. Bonutti , 338 Ill.App.3d at 333. However, most importantly, the Defendant's testimony regarding his doctor's visits, acid reflux, burping, and stomach and chest pain was never rebutted, impeached, or contradicted by the State. The State did not even introduce whether the Defendant's breath test was .08 or more. According to the standard in People v. Bavas , the court cannot disregard the Defendant's unrebutted testimony when ruling on the State's motion for a directed finding. Bavas , 251 Ill.App.3d at 721. Therefore, under People v. Orth , the Defendant's evidence of acid reflux and burping during the twenty minute observation period, alone, sufficiently casts doubt on the accuracy of the breath test under People v. Orth . 134 Ill.2d at 341. When evidence of the Defendant's acid reflux is taken together with the evidence of his sobriety, the Defendant has more than met its burden of presenting a prima facie case for rescission. Id. Accordingly, the Trial Court erred and should not have granted the State's motion for a directed finding.

II. THE TRIAL COURT IMPROPERLY EXCLUDED THE DEFENDANT'S MEDICAL RECORDS BECAUSE THEY WERE ADMISSIBLE AS STATEMENTS FOR PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT.

•A. The Defendant's statements that he made to his doctor about his acid reflux were made in the course of a medical diagnosis or treatment and are an exception to hearsay.

Statutory summary suspensions proceed in the same manner as other civil proceedings and, therefore, civil rules govern the admissibility of evidence. 625 ILCS 5/2 - 118.1(b); People v. Graney , 234 Ill.App. 497, 505, 599 N.E.2d 574, 580 (Ill. App. 2 ^nd Dist., 1992) . Specifically, medical records are admissible under the business-record exception to the hearsay rule. 145 Ill.2d R. 236. In order to lay the foundation for the admissibility of medical records, "all that is required is that someone familiar with the business and its mode of operation testify...as to the manner in which the record was prepared." Raithel v. Dustcutter , 261 Ill.App.3d 904, 909, 634 N.E.2d 1163, 1167 (Ill. App. 4 ^th Dist., 1994) . However, another exception to hearsay are "statements describing medical history, or past or present symptoms, pain, or sensations...if made for purposes of medical diagnosis or treatment," Michael H. Graham, Cleary and Graham's Handbook of Illinois Evidence, §803.8, 707 (8 ^th ed., 2004) . Furthermore, medical records are "inherently reliable," because they " they are generated by those who have no reason to prevaricate and must rely on their accuracy," Troyan v. Reyes , 367 Ill.App.3d 729, 734, 855 N.E.2d 967, 972 (Ill.App. 3 ^rd Dist., 2006) .

In the instant case, the Defendant attempted to admit medical records about the Defendant's GERD and acid reflux. (C. 86, see C. 49). However, the Defendant was not attempting to admit the records as a whole; but for the limit purpose of admitting the statements made by the Defendant to his physicians in the course of his treatment. (C. 86). Ultimately, the court prevented the Defendant from admitting the medical records, even for this limited purpose, and was silent as to the basis for the ruling. (C. 87). Given the inherent trustworthiness of medical records and the purpose for which the Defendant was admitting those records, the Trial Court erred by precluding the Defendant from admitting his hospital records at the summary suspension hearing.

Because the Defendant bears the burden of presenting a prima facie case for a rescission, he must present enough evidence to survive a motion for a directed finding. People v. Marsala , 376 Ill.App.3d 1046, 1048, 877 N.E.2d 1167, 1170 (Ill. App. 2 ^nd Dist., 2007) . In this case, the Defendant was attempting to corroborate the Defendant's testimony that he has acid reflux. (C. 86). However, not only was the Defendant attempting to corroborate the Defendant's testimony, but the Defendant was also seeking to admit evidence that the Defendant complained of acid reflux prior to his arrest and his testimony in court. By providing evidence that the Defendant had made statements about his acid reflux to medical physicians prior to his arrest, the Defendant's intent was to provide more credibility to the fact that the Defendant had acid reflux. (see C. 46). Given the court's factual findings that the Defendant lacked credibility in his testimony, it is clear why the Defendant intended to admit the hospital records for the limited, and admissible, purpose of showing that the Defendant had previously complained about acid reflux. Furthermore, these statements would also show that the Defendant had repeatedly complained about acid reflux and would have provided a chronological time-line of these statements. (see C. 46). By excluding otherwise admissible evidence, the Trial Court prevented the Defendant from fully presenting its case during the hearing. (C. 87).

Therefore, if the medical records are admissible, the Trial Court's ruling cannot be affirmed. The appropriate remedy is to remand the case to the Trial Court with instructions to admit the Defendant's statements contained in his medical records as an exception to hearsay. Remanding the case is the only proper remedy because one can only be able to speculate as to what the Trial Court's ruling would have been had the evidence been admitted during the hearing. Once the previously excluded evidence has been admitted, then the Trial Court can rule on the Defendant's prima facie case in light of the newly admitted evidence.

CONCLUSION

WHEREFORE, the Defendant would pray that this Honorable Court reverse the granting of the State's motion for a directed finding, and in its stead remand the case to the trial court with instructions to admit the Defendant's statements in his medical records and any other instructions this Court may deem appropriate.

CERTIFICATION OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the appendix, is _ 23__ pages.

Respectfully Submitted,

RAMSELL & ASSOCIATES, L.L.C.

Stephen J. Klein

COUNSEL FOR DEFENDANT-APPELLANT

RAMSELL & ASSOCIATES, L.L.C.

128 S. County Farm Road, #F

Wheaton, IL 60187

(630) 665-8780

INDEX TO THE RECORD

C0000001 10-11-08 Complaint with Tickets

C0000006 Law Enforcement Sworn Report

C0000008 Warning to Motorist

C0000009 10-11-08 Bail Bond

C0000010 10-21-08 Notice of Filing

C0000011 10-21-08 Motion for Discovery

C0000015 10-21-08 Notice to Produce at Summary Suspension Hearing Breath Test

C0000014 10-21-08 Motion to Produce Confessions

C0000018 10-21-08 Petition to Rescind Statutory Summary Suspension

C0000019 10-21-08 Subpoena

C0000021 10-21-08 Appearance

C0000022 10-21-08 Notice of Filing

C0000023 10-21-08 Civil Motion for Substitution of Judge

C0000024 10-22-08 Protective Order

C0000027 10-23-08 Notice of Filing

C0000028 10-23-08 Subpoena Duces Tecum

C0000030 10-23-08 Protective Order

C0000033 10-28-08 Confirmation of Statutory Summary Suspension

C0000034 11-18-08 Transfer and Re Assignment Order

C0000035 11-18-08 Subpoena

C0000036 11-18-08 Subpoena

C0000037 11-18-08 Notice of Filing

C0000038 11-20-08 Notice of Filing

C0000039 11-20-08 Subpoena

C0000040 11-20-08 Subpoena

C0000041 11-25-08 Order

C0000042 12-03-08 Notice of Motion

C0000043 12-03-08 Verified Application to Modify the Defendant's Bond

C0000045 12-09-08 Transfer and Re Assignment Order

C0000046 12-09-08 Order Summary Suspension

C0000047 12-09-08 Transfer and Re Assignment Order

C0000048 12-09-08 Order

C0000049 12-09-08 Confidential Envelope

C0000050 12-10-08 Continue Summary Suspension

C0000051 12-31-08 Letter

C0000052 12-31-08 Notice of Filing

C0000053 12-31-08 Writ of Praecipe

C0000054 12-31-08 Notice of Appeal

C0000055 07-29-08 Report of Proceedings from 12-09-08

C0000056 01-08-09 Letter

C0000057 01-16-09 Appellate Court Order

C0000058 Copy of File Jacket

C0000059 01-08-09 Report of Proceedings From 11-25-08

C0000107 12-31-08 Report of Proceedings From 12-09-08

INDEX TO THE REPORT OF PROCEEDINGS

PAGE

C0000059 01-08-08 Report of Proceedings From 11-25-08

Witness: Defendant-Appellant Craig Woods

C0000062 01-08-08 1. Direct Examination.....................................................4

C0000090 01-08-08 2. Cross Examination....................................................32

C0000107 09-04-08 Report of Proceedings From 12-09-08

Witness: Defendant-Appellant Craig Woods

C0000111 01-08-08 1. Cross Examination......................................................5

Witness: Officer Cribaro

C0000115 01-08-08 1. Direct Examination.....................................................9

C0000133 01-08-08 2. Cross Examination....................................................27

C0000111 01-08-08 3. Re-direct Examination................................................34

C0000142 01-08-08 4. Re-Cross Examination................................................36

APPENDIX

ITEM EXHIBIT

Petition to Rescind 1

Order Denying Summary Suspension Hearing (12-9-2008) 2

Notice of Appeal (12-31-2008) 3

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