text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY L. LIVENGOOD, JR., Defendant-Appellant.
    Fourth District
    No. 4 — 91—0414
    Opinion filed December 19, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The Adams County circuit court revoked defendant’s probation and sentenced him to three years’ imprisonment. Defendant appeals the sentence imposed. We affirm.

An information filed in February 1990 charged defendant, then 27 years old, with three counts of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)) and three counts of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16— l(aXl)). Defendant entered a plea agreement and in March 1990, pleaded guilty to one count of burglary. The court accepted the plea and, in June 1990, sentenced defendant to 18 months’ probation. The sen-tenting order stated defendant was not to consume alcohol and stated: “Evidence being held may be released to lawful owner with the exception of the defendant’s vehicle which shall be held pending forfeiture.”

In February 1991, the State filed a petition to revoke defendant’s probation. The petition alleged defendant violated probation when, in November 1990, he committed the offenses of driving under the influence (DUI) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(2)), illegal transportation of alcohol (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 502), and driving without taillights (Ill. Rev. Stat. 1989, ch. 95V2, par. 12— 201(b)). He also violated probation when he consumed alcohol that same date. (We note that in February 1991, the court had sentenced defendant to one year’s probation on the aforementioned traffic offenses, and ordered him to attend Alcoholics Anonymous (AA) meetings and complete DUI evaluation and classes at Recovery Resources.)

On April 24, 1991, defendant admitted to the allegations in the petition to revoke probation and the court revoked his probation.

At the sentencing hearing on May 30, 1991, Illinois State Police Officer Robert Ryan testified he had stopped defendant on May 3, 1991, after the car defendant was driving crossed the centerline of the highway several times. Defendant’s eyes were bloodshot, his speech slurred, and his breath smelled of alcohol. Defendant failed all three field-sobriety tests administered. Defendant informed Ryan his driver’s license had been revoked in February 1991 after a DUI arrest. Defendant informed the court he sold his car so he would not drive anymore.

After reviewing defendant’s presentence report, the court stated:

“I am not going to endanger the people that travel on the streets of this State for someone *** who knew he was in trouble, that he was on probation. It’s not enough that you got caught doing it once; you did it again, a second DUI in a short period of time. You, sir, pose a threat to the citizens of the State, and you don’t want to take the helping hand that is offered to you through counseling in alcohol, and how to straighten your life up through probation so you can lead a decent life, so I have got to show you what the other alternative is. You have been given the chance and didn’t take advantage of it. I wish you had.
Having regard to the nature and circumstances of the offense, and the history, character, and condition of the offender, the Court is of the opinion that imprisonment is necessary for the protection of the public, that additional probation or conditional discharge would deprecate the seriousness of his conduct and would be inconsistent with the ends of justice.”

The court sentenced defendant to three years’ imprisonment on the original burglary conviction. The court later denied defendant’s motion to vacate the admissions made on the petition to revoke probation. The defendant appeals.

The first issue on appeal is whether the court erred in failing to advise defendant of the possibility of treatment under the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1989, ch. lll@^, par. 6351 — 1 et seq.). Section 10 — 101 of the Act allows an addict or alcoholic convicted of a crime to elect treatment. (Ill. Rev. Stat. 1989, ch. HV-k, par. 6360 — 1.) Section 10 — 102 of the Act provides, in pertinent part:

“If a court has reason to believe that an individual who is charged with or convicted of a crime is an addict or alcoholic and the court finds that he is eligible to make the election provided for under Section 10 — 101, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a designated program.” Ill. Rev. Stat. 1989, ch. im/2, par. 6360-2.

An alcoholic is defined as:

“a person who suffers from an illness characterized by preoccupation with alcohol which is typically associated with physical disability and impaired emotional, occupational or social adjustments as a direct consequence of loss of control over consumption of alcohol and demonstrated by persistent and excessive use of alcohol such as usually leads to intoxication if drinking is begun; by chronicity; by progression; and by tendency toward relapse.” Ill. Rev. Stat. 1989, ch. HV-k, par. 6351 — 3.

The Illinois Supreme Court has held a similar provision of the predecessor statute, the Dangerous Drug Abuse Act (see Ill. Rev. Stat. 1979, ch. 91V2, par. 120.10), required the trial judge to inform eligible defendants of the possibility of treatment; the admonishment was deemed mandatory. (People v. Richardson (1984), 104 Ill. 2d 8, 17, 470 N.E.2d 1024, 1029.) The court also stated, however:

“The purpose of the statute is informational. But, unless the defendant already knows that he may be eligible for treatment under the Act, he will not know that he needs any consent. *** There seems little point to a statute which requires a judge to tell the defendant something he already knows. The statute is meaningful only if we assume that the defendant is unaware of his possible eligibility ***.” Richardson, 104 Ill. 2d at 16-17, 470 N.E.2d at 1028-29.

See also People v. Bean (1986), 145 Ill. App. 3d 863, 865, 496 N.E.2d 295, 296-97 (applying the above Richardson analysis in context of the Act).

Defense counsel in this case requested a residential treatment program for his client, though defendant had not yet been evaluated by the Treatment Alternatives to Street Crimes program. These statements indicate defendant was fully aware of the possibility of electing treatment under the Act, and was seeking such consideration by the court. The trial court was not, therefore, obligated to inform him of the option to elect treatment pursuant to the Act.

We note, however, that on appeal the parties have instead focused their arguments on what has been described as the threshold question in cases: “Was the information before the court sufficient to give the court ‘reason to believe’ defendant is an alcoholic?” (People v. O’Bannon (1990), 195 Ill. App. 3d 430, 431, 552 N.E.2d 397, 397.) The phrase “reason to believe” has been deemed the semantic equivalent of “probable cause.” (People v. Jones (1985), 132 Ill. App. 3d 764, 767-68, 477 N.E.2d 836, 839; People v. Santana (1987), 161 Ill. App. 3d 833, 515 N.E.2d 715.) “Whether there is reason to believe that an individual is an addict must be determined from the facts brought to the attention of the trial court.” (Santana, 161 Ill. App. 3d at 841, 515 N.E.2d at 720-21.) Accordingly, we will briefly address the issue from that perspective.

Defendant argues there was sufficient evidence to give the trial court reason to believe he was an alcoholic. The presentence investigation report and supplement indicate defendant was intoxicated on February 4, 1990, when he committed the burglary. His wife indicated they separated for a period of time in 1990 because of defendant’s alcohol consumption. Defendant was arrested for DUI in 1984 and subsequently completed four DUI classes. Defendant’s driver’s license was apparently revoked after his February 1990 DUI conviction. Although he attended the AA meetings as required, he did not complete evaluation and classes at Recovery Resources. Defendant contends this evidence should have led the trial court to conclude he was an alcoholic.

The State contends the evidence shows defendant had an alcohol problem, but did not provide the court with a reason to believe defendant was an alcoholic within the meaning of the Act. We agree.

The presentence investigation report and supplement indicate defendant is in good physical health. The amount of alcohol he consumed depended upon the amount of money he had to spend. Defendant never described himself as an alcoholic; indeed, he indicated he did not feel he had an alcohol problem. There was no evidence showing defendant had a “preoccupation with alcohol which is typically associated with physical disability and impaired emotional, occupational or social adjustments,” and thus he did not meet the statutory definition of an alcoholic. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 6351 — 3.) However, even if the trial court had specifically addressed the issue and concluded defendant was an alcoholic, as we have stated above, there would have been no error in failing to inform defendant of his eligibility to elect treatment as he already knew of this option. There would also be no error in refusing to order such treatment because the trial court here had ample evidence to conclude, and did so conclude, the defendant’s imprisonment was necessary for the protection of the public.

The second issue on appeal is whether the court abused its discretion in revoking defendant’s probation and sentencing him to three years’ imprisonment. We find no abuse of discretion.

Defendant argues the court failed to give adequate weight to mitigating evidence and to his rehabilitative potential. The mitigating evidence consisted of statements from employers describing defendant as hardworking and dependable, the positive relationship he shared with his children, and his problem with alcohol.

Burglary is a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 19— 1(b)), and the minimum sentence for a Class 2 felony is three years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aX5)). Another sentence of probation would, as the trial court stated, deprecate the seriousness of the offense and would not protect the public. Probation had proved ineffective. This did not speak well of his rehabilitative potential. While a defendant’s rehabilitative potential is one factor to consider in determining the appropriate sentence, it need not be regarded as outweighing other relevant factors militating against it. “Absent an abuse of discretion, a sentence within the statutory limits will not be disturbed.” (People v. Lucas (1991), 215 Ill. App. 3d 148, 154, 574 N.E.2d 850, 854.) The trial court did not abuse its discretion in refusing to order probation or in sentencing defendant to the minimum term of imprisonment for a Class 2 felony.

The sentence imposed by the Adams County circuit court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    MARY K. BREESE, as Parent and Guardian on behalf of Sean M. Breese, a Minor, Plaintiff-Appellee, v. JOHN C. DEWEY, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0323
    Opinion filed December 19, 1991.
    Jeffrey L. Fehrenbacher, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Lorette M. Pionke, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The plaintiff filed an action under the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.) requesting a finding of paternity; reasonable amounts for the continuing support, maintenance, education, and welfare of the minor, Sean M. Breese; and reimbursement for costs incurred in connection with his birth. The trial court entered a summary judgment of paternity upon the motion of plaintiff, finding the defendant, John C. Dewey, to be the father of Sean M. Breese. The defendant appeals from the trial court’s order granting summary judgment.

The plaintiff, in her motion for summary judgment, compiled an impressive amount of evidence to support her motion, to wit:

(1) A blood test which shows the statistical probability of paternity for John C. Dewey to be 99.99% and the accompanying affidavit of the performing doctor.
(2) The plaintiff’s uncontradicted statement that she had sexual intercourse with no man other than the defendant during the probable period of conception.
(3) A document which appears to be signed by both parties and names John C. Dewey as the father of Sean M. Breese.
(4) The defendant’s admission that he had sexual intercourse with the plaintiff approximately once per month over a 10-year period, although the defendant could not recall specifically whether he had sexual intercourse with the plaintiff during the probable period of conception.

In opposition, the defendant has only directly contested the issue of paternity. To all other relevant questions, the defendant states in various pleadings that he cannot recall or has insufficient knowledge to answer. The defendant at no time offered a scintilla of evidence by opposing affidavits or other pleadings and proof which would present the trial court with a genuine issue of material fact.

A motion for summary judgment should only be granted when the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) While the use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. (Purtill, Ill El. 2d at 240, 489 N.E.2d at 871.) In deciding whether to grant summary judgment, a court shall construe the pleadings, affidavits, depositions, admissions, and exhibits strictly against the movant and liberally in favor of the opponent. Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.

The defendant asserts that several issues exist for the trier of fact to determine. Among these are the qualifications of the expert and the validity of the chain of custody of the blood test evidence. However, the defendant fails to present any evidence or to controvert plaintiff’s allegations in any meaningful way which would support the existence of an issue. Mere conjecture on the part of the defendant will not be sufficient to create a question of fact absent any corroborating evidence by affidavit or deposition testimony.

The defendant primarily relies upon the decisions of the First District Appellate Court in Daubach v. Ishihara (1981), 103 Ill. App. 3d 750, 431 N.E.2d 1183, and the Fifth District Appellate Court in In re Paternity of Smith (1989), 179 Ill. App. 3d 473, 534 N.E.2d 669. However, we find both cases distinguishable. In Daubach, for example, defendant denied several relevant allegations by plaintiff, including her assertion that she had not socialized with any man other than defendant during the period of conception, as well as denying being the father of the child. In Smith, the petitioner had named someone else as the father of the child on several occasions, was married to another at the time of conception and had her husband’s name placed on the child’s birth certificate, and admitted she had engaged in sexual intercourse with three men (other than respondent) in the year the child was conceived. In addition, respondent’s cousin executed an affidavit stating he had received a letter from a person purporting to be the child, claiming he was her father. A paternity-testing supervisor testified by deposition that while the blood test would have excluded 99.94% of falsely accused men, it would have failed to exclude at least 20,000 men in the United States, only one of whom would not be falsely accused.

This court recognizes the drastic nature of a summary judgment order, especially in a paternity case where the credibility of the witnesses can be crucial. However, this does not relieve the defendant of his obligation to counter the plaintiff’s evidence so that an issue remains for the court to determine. Memory lapses and pleading “insufficient knowledge” will not create an issue of fact for the court to determine.

In the present case, the plaintiff had compiled a plethora of evidence supporting her motion for summary judgment which the defendant has not contradicted with any competent evidence of his own. Accordingly, the judgment of the circuit court is hereby affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE ex rel. DEBBIE J. PATRICK, Plaintiff-Appellant, v. MARK D. PATRICK, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0434
    Opinion filed December 19, 1991.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Petitioner Debra Patrick, a resident of McLean County, filed a petition for support pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1201 et seq.) to enforce a support order entered against respondent, Mark Patrick, a resident of Coles County, by the circuit court of Coles County in an earlier dissolution judgment. Respondent, after filing a verified response admitting a child support arrearage, filed a motion to dismiss the petition for want of subject-matter jurisdiction. The trial court granted the motion. Petitioner appeals, contending the Act is applicable, the circuit court of Coles County has subject-matter jurisdiction, and the trial court erred in dismissing her petition. We agree and reverse.

Appellee has not filed a brief, but the record is simple and the claimed error can be easily resolved without the aid of an appellee brief. The parties’ 1980 marriage was dissolved in 1987 by the circuit court of Coles County. Respondent was ordered to pay $65 per week for the support of his daughter, Gina, born June 16,1984.

Petitioner, now a resident of McLean County, filed a petition under the Act in the circuit court of McLean County in October 1990, alleging a court-ordered obligation on respondent’s part to pay child support and an arrearage. The circuit court of McLean County certified the petition, i.e., the court found the petition set forth facts from which it may be determined the obligor owes a duty of support and the circuit court of Coles County may obtain jurisdiction of the obligor or his property.

Shortly thereafter, the petition was transferred to Coles County. The State’s Attorney of Coles County served notice of the petition to respondent in March 1991. Respondent filed a verified response in April 1991, and then filed a motion to dismiss for want of subject-matter jurisdiction. The motion to dismiss was heard and allowed. This appeal followed.

In People ex rel. Legout v. Decker (1991), 209 Ill. App. 3d 882, 568 N.E.2d 459, the Fifth District Appellate Court concluded the Act does not apply when an Illinois resident of one county seeks to enforce the provisions of an Illinois judgment of dissolution and support order against an obligor in another county of the State of Illinois. The court determined the Act applies only in those instances where at least one element of the support equation is outside the State — the dissolution and support order, the obligor, or the obligee.

Respondent cited Decker to the trial court. There is no State supreme court decision on point, and no precedent in this appellate district. It was thus proper for the trial court to follow the precedent in Decker. We conclude, however, the Decker decision is erroneous, and we agree with the dissenting opinion of Justice Chapman.

While one purpose of the Act is to make it feasible for a person in one State to enforce the duty of support owed by a person residing in another State, the Act does not limit itself to this purpose alone. In fact, section 33 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 1233) specifically provides for intrastate application as well:

“This Act applies if both the obligee and the obligor are in this State but in different counties. If the court of the county in which the petition is filed finds that the petition sets forth facts from which it may be determined that the obligor owes a duty of support and finds that a court of another county in this State may obtain jurisdiction over the obligor or his property, the clerk of the court shall send the petition and a certification of the findings to the court of the county in which the obligor or his property is found. The clerk of the court of the county receiving these documents shall notify the prosecuting attorney of their receipt. The prosecuting attorney and the court in the county to which the copies are forwarded then shall have duties corresponding to those imposed upon them when acting for this State as a responding state.” (Emphasis added.)

Section 33 does not state that the Act applies only when an out-of-State judgment is involved.

The legislative policy here involved is to enforce the duty of support. Limiting the application of the Act only to situations involving an out-of-State or “foreign” element would simply thwart legislative policy. It would serve no legal, legislative, or social purpose to construe the Act as respondent requests, and to do so would also ignore the plain language of section 33 of the Act.

If the legislature did not intend for the Act to apply in the scenario presented here, it would have been a simple matter to limit its application. Simply because no Illinois case presenting this fact pattern had been adjudicated by a court of review prior to Decker does not mean the legislature intended to preclude the use of the Act in this situation. The Act provides a remedy for those who are legally entitled to support against those who are legally obligated to provide that support when the parties reside in different counties, States, or countries.

Reversed and remanded.

GREEN, P.J., and COOK, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESLIE W. VANLANDINGHAM, Defendant (Martha Vanlandingham, Intervenor-Appellant).
    Fourth District
    No. 4 — 91—0297
    Opinion filed December 19, 1991.

      Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Intervenor, Martha Vanlandingham, seeks to recover 20 weapons and personal property seized from her residence in connection with charges filed against defendant, Leslie Vanlandingham. The items were seized pursuant to two search warrants. When the seizures occurred, intervenor and defendant were roommates. At the time this appeal was filed, they were married. Defendant was charged with, and pleaded guilty to, unlawful possession of weapons by a felon. (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a).) The Champaign County circuit court entered an order forfeiting the weapons seized. At a separate hearing, it denied intervener’s request for the weapons seized to be returned to her, but ordered the State return all other personal property to her. The court later amended its oral order and required the State to return only personal property currently within its control.

On appeal, intervenor contests (1) the propriety of the forfeiture, with respect to denial of the motion in limine-, (2) the ruling permitting the State to contest her claim of ownership; (3) the rulings refusing to exclude as evidence in proceedings on her motion for return of the property (a) the weapons seized on executing a warrant which did not authorize the weapons’ confiscation, and (b) a second undated search warrant; as well as (4) the trial court’s alteration of its earlier order requiring all personal property to be returned to her. Intervenor contends because she owned the property, the court erred in forfeiting it. We reject her contentions and affirm.

To understand the nature of the issues intervenor raises, an overview of the relevant events which transpired follows.

I. Matters Leading To The Forfeiture Order

On February 16, 1989, based on information provided by a confidential source, a judge issued a warrant authorizing the search of the home in which defendant and intervenor lived. The warrant authorized seizure of evidence related to the offense of possession of controlled substances with intent to deliver. The complaint described a controlled cocaine purchase from defendant by a confidential source, and noted defendant had two previous drug-related arrests. The confidential source also reported seeing easily accessible firearms in defendant’s residence. Authorities also had tape-recorded conversations between defendant and the confidential source about weapons.

When authorities executed the warrant on February 17, 1989, they seized 20 weapons and items related to controlled substances. Defendant Leslie Vanlandingham was charged by informations with unlawful possession of a controlled substance with intent to deliver and unlawful possession of weapons by a felon. Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(b)(2); ch. 38, par. 24 — 1.1(a).

On February 21, 1989, pursuant to a second warrant, authorities again searched the residence of defendant and intervenor. A different judge issued this warrant. It was supported by information related to the offenses of burglary, possession of stolen property, and unlawful possession of firearms by a felon. The warrant complaint was dated February 21, 1991, but the warrant itself did not specify the day it was issued.

Pursuant to the two search warrants executed on February 17 and 21, authorities confiscated a total of 20 weapons, ammunition, and other personal property from the home in which intervenor and defendant lived, including property located in a safe which had been confiscated in executing the February 17 warrant.

On July 18, 1990, defendant pleaded guilty to the unlawful possession of weapons by a felon charge. As part of the plea agreement, the State dismissed the charge of unlawful possession of controlled substances with intent to deliver. Defendant agreed not to object to forfeiture of the weapons, and was sentenced to 12 months’ probation. Although defense counsel stated defendant merely agreed not to object to forfeiture, the trial court observed defendant agreed to the forfeiture.

The trial court entered an order, pursuant to section 24 — 6(b) of the Criminal Code of 1961 (Code), forfeiting the weapons seized to the Champaign County Interagency Task Force (ITF). Ill. Rev. Stat. 1989, ch. 38, par. 24 — 6(b).

II. Proceedings Related To Intervenor’s Motion For Return Of Property

On July 27, 1990, intervenor filed a motion for return of the items seized, contending she owned the property forfeited. She argued defendant had no interest in the property.

Intervenor later filed a motion to compel the State to produce a document confiscated from the safe seized from her home. She claimed the document proved she owned the weapons. The State’s record of items seized February 17, 1989, suggested such a document may have existed. However, the State could not locate any such document when intervenor requested a copy. After a hearing January 10, 1991, the court reserved ruling on the motion to compel until the hearing on return of the property.

Intervenor also filed a motion in limine. She argued (1) the State should be barred from contesting her ownership of the 20 weapons; and (2) in ruling on the propriety of the forfeiture order, the court should exclude evidence obtained by the February 17 and 21 search warrants. Hearings on the intervenor’s motion took place on January 28 and 31, 1991. The court denied intervenor’s motion in limine. It refused to bar the State from contesting who owned the weapons and property seized. In addition, it rejected her argument evidence from the searches should be excluded.

At the hearing on intervenor’s motion, she testified she has been a licensed firearms dealer since late 1983. She stated she was the sole proprietor of a firearm’s dealership called “Urban Arms,” and defendant held no interest in the dealership. The record indicates the 20 weapons seized included one XM-15 E2 rifle, one AK47 assault rifle, 10 Mil pistols, and eight M10 pistols.

The State produced a handwritten receipt dated September 25, 1988, and signed by intervenor in which she transferred the inventory of Urban Arms to defendant. At the hearing on intervenor’s motion, intervenor admitted executing this document, but contended the transfer was temporary. She testified it was executed because she planned to travel. Her relationship with defendant was strained and he feared she would not return. The transfer would have enabled him to sell Urban Arms’ inventory if she died in a plane crash or did not return.

Intervenor testified she and defendant executed a second document when she returned from her trip in early October 1988. This document purportedly transferred the entire interest of Urban Arms back to intervenor. Intervenor stated these documents were kept in the safe confiscated by authorities on February 17, 1989.

Kent Shove, intervenor’s friend since childhood, and defendant’s employee at the time in question, testified he had seen a document transferring Urban Arms back to intervenor. The document puzzled him because he knew intervenor owned the guns. He stated intervenor told him she owned Urban Arms as an asset to liquidate quickly if something happened to defendant. Intervenor later explained to Shove the earlier transfer to defendant occurred only because she was travelling.

In addition, a report made by an Urbana police officer responsible for inventorying all items seized from defendant’s home February 17, stated:

“The contents of the safe include, but are not limited to, the following: *** handwritten receipts placing the entire inventory of weapons and ammunition belonging to ‘Urban Arms’ in the possession of [defendant]. Also, handwritten receipts placing the entire inventory of weapons and ammunition belonging to ‘Urban Arms’ to [intervenor].” (Emphasis added.)

However, the State could not locate any document by which defendant transferred his interest in Urban Arms back to intervenor when she requested a copy in preparation for her motion for return of the forfeited property. During the January 10 hearing on intervenor’s motion to compel the document’s production, Officer Haig, author of the report, described the likelihood that the document existed and had been lost as “remote.” He stated that while inventorying the papers seized he may have misinterpreted one as a receipt in which Urban Arms was transferred to intervenor.

Officer Haig testified all items removed from the safe were photographed. None of the photographs represented any document transferring ownership of Urban Arms from defendant to intervenor. Neither the ITF nor the Federal Bureau of Alcohol, Tobacco, and Firearms (Bureau) had received a copy of such a document, though each had received copies of all documents relevant to the investigation.

Vanessa Horsman, a sergeant with the University of Illinois police department, testified she was present when the items were removed from the safe and photographed. She did not recall seeing any such document. She did, however, remember seeing a document in which intervenor transferred all interest in Urban Arms to defendant. In addition, the evidence log, which provides descriptions of all items seized February 17, does not list any document wherein defendant transferred Urban Arms to intervenor.

Intervenor testified she collected weapons as a “nest egg” for her future. Because she and defendant were not married at the time, the weapons were an investment which would provide needed assets if defendant died. According to her testimony, the “MAC-lO’s” were no longer produced, and were her private collection. Because the Mil’s were plentiful and not as valuable, she sold these.

On cross-examination, intervenor identified her signature on five forms which are to be completed when an individual purchases weapons from a firearms dealer. The forms did not include the identity of, or any other information about, a purchaser. On two forms, intervenor noted she personally knew the purchaser, although the forms did not yet identify the purchaser.

The State asked intervenor why she had a great deal of literature describing how to alter weapons from semiautomatic to automatic if she merely collected weapons. Although she seemed unwilling to recognize this information had been among the materials seized, she contended she kept all information she received. She also testified on cross-examination that her collection included a large inventory of holsters and accessories to better serve her Urban Arms’ customers.

Charles Sharp and Paul Vido, special agents with the Bureau, testified that during the February 17 search of intervenor’s home, she told them the weapons in the home belonged to defendant. Special Agent Vido stated that during the February 17 and the February 21 searches, intervenor seemed unfamiliar with the location and contents of the records which a federally licensed firearms dealer must retain. According to Agent Vido, during the February 21 search, intervenor told him she was not interested in buying or selling weapons. She stated defendant asked her to become a firearms dealer because he was prohibited from obtaining a firearms dealer’s license. Agent Vido and Troy Daniels, an investigator for the Champaign County sheriff’s department, testified intervenor told them defendant was extremely interested in weapons.

Intervenor denied telling agents defendant owned the weapons or that she was a licensed firearms dealer only upon defendant’s request. She also stated she appeared unfamiliar with the requisite records because the agents used different terminology to describe them.

The State introduced evidence defendant participated in operating Urban Arms. Urban Arms’ records contained letters sent by defendant to other arms dealers, and correspondence from dealers to defendant. Under cross-examination, intervenor admitted correspondence from other arms dealers, other than invoices and receipts, was addressed to defendant. In addition, defendant was listed as the customer on a receipt received from another dealer.

At the close of the hearing, the court denied intervenor’s motion for the return of the weapons and ordered the State to return other confiscated personal property to her. In announcing its order on January 31, the court stated: “With respect to the other personal articles which are obviously identifiable, specifically to Martha Vanlandingham — and there is no suggestion by the State here to the contrary — those items must be returned to her ***.”

The State later informed the court it did not possess all the property which intervenor sought to have returned. The court altered its original oral order by written order filed March 14, 1991. This order required the return of personal property which “remain[ed] under the control and jurisdiction” of the authorities.

III. Propriety Of Forfeiture Order

Intervenor first argues the court erred by approving the forfeiture of the weapons because its order was based on section 24 — 6 of the Code, and the State failed to establish the requisite elements. Section 24 — 6 states:

“(a) Upon conviction of an offense in which a weapon was used or possessed by the offender, any weapon seized shall be confiscated by the trial court.
(b) Any stolen weapon so confiscated, when no longer needed for evidentiary purposes, shall be returned to the person entitled to possession if known. After the disposition of a criminal case and when a confiscated weapon is no longer needed for evidentiary purposes, and when in due course no legitimate claim has been made for such weapon, the court may transfer such weapon to the sheriff of the county who shall proceed to destroy it, or may in its discretion order such weapon preserved as property of the governmental body whose police agency seized the weapon, or may in its discretion order such weapon to be transferred to the Department of State Police ***.” Ill. Rev. Stat. 1989, ch. 38, par. 24-6.

To justify forfeiture, the State must prove (1) defendant was convicted, (2) of an offense in which a weapon was used or possessed, and (3) intervenor did not show a legitimate claim to the weapons. Ill. Rev. Stat. 1989, ch. 38, par. 24 — 6.

Although the trial court concluded the State met this test by clear and convincing evidence, the parties agree the State only had to provide evidence sufficient to meet the civil standard of a preponderance of the evidence. (People v. LeShoure (1986), 143 Ill. App. 3d 839, 844, 493 N.E.2d 687, 690.) The State contends it not only met the preponderance standard, but proved each element by clear and convincing evidence.

In evaluating whether the forfeiture order was proper, the trial court viewed as most important whether intervenor had established a legitimate ownership claim to the seized property. It reasoned defendant had waived any interest in the property by agreeing to forfeit it as part of his negotiated plea. The court found defense counsel’s semantics in stating defendant agreed not to object to forfeiture did not affect the defendant’s agreement to the forfeiture order.

Because defendant waived his interest to the property, the court reasoned, it was not necessary to determine whether there was a conviction of an offense in which the weapon was used or possessed, or whether a close nexus was established between the offense and the weapon.

The court concluded forfeiture was proper because evidence established defendant owned the weapons. It viewed intervenor’s interest as, at best, “tangential,” and concluded she disclaimed an ownership interest during the searches when she told law enforcement officials defendant owned the weapons.

The State’s evidence established the statutorily mandated elements. Defendant pleaded guilty to unlawful possession of weapons by a felon. The requirement of conviction and possession of the weapons by the offender is therefore met. (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 6(a).) Defendant’s conviction is based on his possession of the 20 weapons at issue. In addition, Kent Shove, who was called by intervenor as a witness, testified he saw weapons in her residence. Because defendant resided with intervenor, this, too, is evidence he possessed weapons.

Additional evidence which proved defendant possessed the weapons was testimony by two law enforcement officials that during the home searches intervenor had informed each of them independently that defendant owned the weapons.

Intervenor argues the weapons could not be forfeited because the State did not prove possession of the specific weapons was unlawful per se, or that they were used in the offense for which the owner was convicted. She contends People v. Earl (1984), 121 Ill. App. 3d 254, 459 N.E.2d 342, supports this view.

The trial court found it unnecessary to characterize the weapons as contraband per se, or derivatively based on use, as the Earl court discusses, because the crux of this case was whether intervenor could make out a legitimate claim to the weapons and establish she owned them. Earl simply provides no support for her.

In Earl, the court reasoned the rightful owner had a legitimate claim because the weapons were stolen. Other weapons which the court concluded should be returned were weapons not related to the offense of which defendant was convicted. (Earl, 121 Ill. App. 3d at 258, 459 N.E.2d at 345.) Intervenor does not contend the weapons were stolen from her or confiscated without her knowledge. It is also noteworthy that intervenor did not initiate a claim to the weapons until after defendant had pleaded guilty, agreed to the forfeiture, and received a sentence of probation.

As the State notes, intervenor incorrectly directs this court to two of its previous rulings. People v. Gant (1986), 150 Ill. App. 3d 180, 501 N.E.2d 355, addressed forfeiture of items under the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 561/2, par. 1505(a)(5)), and not under the Code (Ill. Rev. Stat. 1989, ch. 38, par. 24-6). (Gant, 150 Ill. App. 3d at 190-91, 501 N.E.2d at 363.) In LeShoure, the State did not seek forfeiture because of any connection between the weapons seized and the offense for which defendants were convicted. LeShoure, 143 Ill. App. 3d at 845, 493 N.E.2d at 690-91.

In this case, contrary to intervenor’s contentions, the State established a connection between defendant’s conviction for unlawful possession of weapons by a felon and the weapons he possessed. These weapons formed the basis for defendant’s conviction. The weapons were unlawfully possessed by defendant and were forfeited because he agreed to that forfeiture. The agreed forfeiture helps to establish the connection. Intervenor had to prove she owned the weapons.

The State established, by at least a preponderance of the evidence, that intervenor had no legitimate claim to the weapons seized. (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 6(b); LeShoure, 143 Ill. App. 3d at 844, 493 N.E.2d at 690.) The trial court concluded the State’s evidence convinced it “beyond a doubt” she had no ownership claim to the weapons. It is well settled the trial court determines the credibility of witnesses and the sufficiency of evidence. (People v. Ellis (1978), 74 Ill. 2d 489, 384 N.E.2d 331.) The trial judge was in a superior position to evaluate the evidence and the credibility of witnesses. People v. Cooper (1977), 66 Ill. 2d 509, 363 N.E.2d 817.

Law enforcement officials testified intervenor disclaimed any ownership interest in the weapons during the searches. This testimony was in contrast with the testimony of intervenor and her witness as to her ownership. However, intervenor’s only witness was a longtime friend of hers and a previous employee of defendant. We note defendant did not testify on behalf of his wife’s ownership interest in the weapons.

Intervenor contended the weapons collection was an investment to provide her with money if defendant died. One might envision a collection of weapons displayed in an illuminated glass case to emphasize unique qualities of each weapon. Or perhaps a single, secured location to protect the collection and its future value. However, the record indicates the weapons were scattered throughout the house. Six of the 20 weapons were concealed under couches or tables, in coffee table drawers, and behind doorways. Two of the weapons which were scattered about were MIOs — the weapons which intervenor testified she specifically collected to retain as investments. In addition, the document in which intervenor transferred her interest in Urban Arms to defendant proved he owned the weapons.

Other compelling evidence that intervenor’s interest was only to enable defendant to traffic in weapons lies in the sales forms signed by her with no purchaser identified. This would allow defendant to sell weapons without intervenor's further participation. The trial court could reasonably infer from the evidence defendant owned all the weapons. The intervenor did not establish a legitimate ownership claim to the weapons.

IV. Motion In Limine Ruling Refusing To Bar State From Contesting Intervenor’s Ownership Of Weapons

Intervenor next argues the court erred in permitting the State to contest ownership of the weapons because it had lost or destroyed evidence which proved she owned the weapons. She contends the State lost or destroyed a receipt which showed that in October 1988, after she transferred her interest in Urban Arms to defendant, he transferred all interest in Urban Arms back to her. She contends the evidence conclusively established this document existed and was in the State’s possession after the searches. The document would have established intervenor owned the weapons, and she thus had a legitimate claim to have the weapons returned to her. She argues Graves v. Daley (1988), 172 Ill. App. 3d 35, 526 N.E.2d 679, presents a similar scenario. The court, she contends, should have presumed the document existed and had been seized because this was established by Officer Haig’s testimony.

The State argues the evidence proves the document never existed. Assuming it did exist, the State contends the court properly refused to sanction it because, unlike the party in Graves, it did not intentionally destroy the document.

The trial court reasoned it would not sanction the State by barring it from contesting intervenor’s ownership interest because, even if the document existed and had been seized, there was no evidence the State intentionally destroyed it. It reserved ruling until all evidence was presented and did not rule otherwise at the close of the hearing.

Whether to impose sanctions on a party for noncompliance with a discovery order is a matter within the discretion of the trial court. A court of review will not disturb that decision unless it is a clear abuse of discretion. (Lubbers v. Norfolk & Western Ry. Co. (1986), 147 Ill. App. 3d 501, 518, 498 N.E.2d 357, 369.) Sanctions should not be imposed unless the party’s noncompliance was unreasonable. Applegate v. Seaborn (1985), 132 Ill. App. 3d 473, 474, 477 N.E.2d 74, 76.

The evidence did not establish the document existed and was seized. Officer Haig testified he did not remember the document and he may have mistakenly recorded such a document existed when inventorying the items seized in the February 17 search. No such document appeared in the photographs of all items seized. In addition, Sergeant Horsman did not see such a document when the seized items were removed from the safe and photographed. The law enforcement agencies which participated in the search and received copies of all documents did not have a copy of such a document. Another factor which indicates the document did not exist or was not seized is the fact it was not listed in the evidence log. The only witnesses who testified the document existed were intervenor and a longtime friend of hers who was also previously employed by defendant.

The record supports the trial court’s conclusion the disappearance of the alleged document — if it ever existed — was not intentional. The court’s decision not to sanction the State by barring it from even disputing intervenor’s claim was not an abuse of its discretion.

Y. Ruling Refusing To Exclude From Proceedings On Intervenor’s Motion For Return Of Property Weapons Obtained In Executing, But Not Specified In, Warrant

Intervenor next argues the court erred in concluding that, although the February 16 search warrant authorized only the seizure of items related to the offense of possession of controlled substances, the plain view doctrine permitted seizure of the weapons. The trial court found authorities came upon the weapons in the process of executing a valid warrant to confiscate items related to controlled substances. The court reasoned that because the weapons became apparent during the search, the weapons were inadvertently discovered and were therefore subject to seizure under the plain view doctrine. It concluded the information provided by the confidential source about weapons afforded authorities only an “impression” that weapons might be on the premises. The possible presence of weapons is always of interest to law enforcement officials in executing warrants for any offense.

Intervenor argues because the warrant did not authorize the seizure of the 20 weapons, the State should not have been permitted to use the weapons as evidence against her in her attempt to reclaim the weapons. She contends because the State knew weapons would likely be found, the discovery of the weapons during the search was not inadvertent. She cites testimony by Walter Wolfe, a captain with Champaign County sheriff’s department. She contends he stated the weapons found were “exactly” the type expected to be found. However, he testified some of the weapons found in defendant’s residence were of the type which authorities could have expected to find considering information provided by the confidential source. Intervenor contends the Bureau participated in the search because authorities knew about weapons in the residence. She also argues information gleaned from tape-recorded conversations between defendant and the confidential source about weapons informed authorities about the weapons.

Intervenor relies on People v. Madison (1988), 121 Ill. 2d 195, 520 N.E.2d 374, in arguing the weapons could not be confiscated under the plain view doctrine because the officers entered the premises searching for precisely the firearms they found, i.e., the finding was not inadvertent. In Madison, the court held the plain view doctrine applies only when three conditions are met: first, the police must be properly on the premises through a warrant or an exception to the warrant requirement; second, the police must discover the evidence inadvertently, not knowing in advance the location of the evidence; and finally, the item must appear to be evidence of a crime, contraband, or otherwise subject to seizure. (Madison, 121 Ill. 2d at 208, 520 N.E.2d at 380-81.) The officers in Madison conducted an administrative search of a licensed salvage yard and confiscated business records which they deliberately searched for before obtaining a search warrant. Madison, 121 Ill. 2d at 199, 520 N.E.2d at 376.

As the trial court correctly noted, unlike Madison, authorities here entered defendant’s home on February 17 pursuant to a valid warrant for items related to controlled substances. Information provided by the confidential source did not conclusively establish where weapons would be found. Authorities found additional illegal items, in plain view, in the course of a lawful search, and there is no reason to exclude those items.

Moreover, even if the weapons were not inadvertently discovered by authorities, the trial court ruled properly because inadvertency is no longer a requirement of the plain view doctrine. After Madison, the United States Supreme Court removed inadvertency as a requirement for the seizure of items in plain view. In Horton v. California (1990), 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301, the Court ruled a warrantless seizure of items in plain view is valid if two conditions are met. First, the incriminating character of the item seized must be “ ‘immediately apparent.’ ” (Horton, 496 U.S. at 136, 110 L. Ed. 2d at 123, 110 S. Ct. at 2308, quoting Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 29 L. Ed. 2d 564, 583, 91 S. Ct. 2022, 2038).) As intervener aptly notes, Captain Wolfe testified the ITF knew defendant had prior felony convictions. Once the weapons were seen in defendant’s home, the officers had reason to seize the weapons. Since defendant was a felon, he could not have weapons in his home.

The second condition for finding items seized from plain view should not be excluded is that the officer has a lawful right of access to the items. The Horton Court stated:

“[I]f [the officer] has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first.” (Horton, 496 U.S. at 139, 110 L. Ed. 2d at 124,110 S. Ct. at 2309.)

In this case, the officers entered defendant’s home pursuant to a search warrant. Both conditions outlined in Horton to permit seizure of items in plain view were met.

The trial court could consider the weapons as evidence in the hearing on intervenor’s motion. The weapons were properly seized under the plain view doctrine as described in Horton. The weapons were discovered during a lawful search authorized by a search warrant. In addition, when the weapons were discovered, it was immediately apparent to the officers the weapons constituted incriminating evidence.

VI. Ruling Refusing To Exclude From Proceedings On Intervenor’s Motion, Evidence Obtained In Executing An Undated Warrant

Intervenor next attacks the February 21 search warrant. She argues the warrant executed on February 21 was invalid because it did not include the specific day of the month in which it was issued. She contends the Urban Arms’ records seized pursuant to the defective warrant should have been excluded as evidence in proceedings on her motion for return of property. She argues People v. Taylor (1990), 198 Ill. App. 3d 667, 555 N.E.2d 1218, is dispositive because it held section 108 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 108 — 4) requires properly executed warrants to include the time and date issued.

The trial court concluded the warrant was valid because the complaint was properly dated, and is typically presented to the judge the same day the warrant is issued. Similarly, the State contends because the warrant was executed on February 21 and the complaint contained the date, an omitted technicality should not bar the evidence. According to the State, the defects in Taylor were serious, unlike the defect here.

In Taylor, the warrant was issued over the phone, there was no record made of the phone conversation between the officer and the judge who orally authorized the warrant, and the judge could not have determined the complaint was written and under oath. Taylor, 198 III. App. 3d at 670, 555 N.E.2d at 1220.

A defect in a search warrant is immaterial if the search is otherwise justified. (People v. Brinn (1965), 32 Ill. 2d 232, 241, 204 N.E.2d 724, 730; People v. Cox (1971), 49 Ill. 2d 245, 248, 274 N.E.2d 45, 47.) The complaint in this case was dated February 21, 1991. The search was executed February 21, 1991. Common sense shows the warrant was also issued February 21, 1991. The warrant was executed within the requisite time period. In addition, intervenor does not contend probable cause was lacking in the issuance of the warrant, or that there was police misconduct.

Although the specific day the warrant was issued was absent from the warrant, the purpose of the exclusionary rule would not have been served by prohibiting evidence related to ownership of Urban Arms. The evidence established the warrant was not stale and there was no police misconduct. In these circumstances, the trial court did not err in determining business records seized pursuant to the undated search warrant sought and executed on February 21, 1989, could be used in the proceeding on intervenor’s motion involving forfeiture and confiscation, which was civil in nature.

VII. The Court’s Modification Of Its Order

Intervenor’s final argument is the court improperly altered its January 31 order, which had required the State return all personal property to her, to only require the State to return all personal property it currently possessed. The court’s written March 14 order directed the State to return all items “[wjhich remain[ ] in the custody of the Interagency Task Force and/or the Urbana Police Department.”

Intervenor contends the evidence was unrebutted that all items of personal property outlined in her exhibit No. 2 were confiscated from her home during the searches; she testified all items listed in exhibit No. 2 were taken from her home during the searches. The State objected to the relevance of the testimony. The court overruled the objection, however, after intervenor’s counsel explained the motion requested the return of all personal property confiscated. Intervenor also correctly notes the State did not file a motion for reconsideration and it never explained what happened to the missing property.

The State concedes that after the January 31 hearing, it informed the court of certain items which it could not return to intervenor because it did not have the items in its control.

It is impossible to determine from the record which items have not been returned or why. The descriptions of the items differ between intervenor’s exhibit and the State’s exhibit, which list the items the court ordered returned to intervenor in its written order filed March 14,1991.

We therefore find it necessary to remand this case to the trial court to determine what items were not returned, why the items were not returned, and intervenor’s remedy (if any) as to items of unreturned personal property which should have been returned.

The trial court did not err in ruling the weapons were properly-forfeited. It also correctly ruled the State could contest intervenor’s claim she owned the weapons. In addition, although not listed as to be seized in the February 17 search warrant, the weapons were properly seized. Intervenor’s business records were also correctly considered as evidence although the February 21 search warrant was undated.

Accordingly, we affirm the trial court’s rulings on all substantive issues raised. We remand, however, for further consideration of the State’s obligation to return certain personal property to intervenor.

Affirmed, and cause remanded with directions.

GREEN, P.J., and LUND, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KANE, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0485
    Opinion filed December 31, 1991.

      Michael J. Zopf, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial in Champaign County circuit court, defendant, James T. Kane, was convicted of improper lane usage on a one-way street (111. Rev. Stat. 1989, ch. 951/2, par. 11 — 708(b)) and driving under the influence of alcohol (DUI) (111. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)). He was sentenced to 24 months’ conditional discharge and 14 days in the Champaign County Correctional Center, and ordered to perform 200 hours of community service. Defendant was also ordered to receive 10 hours of alcohol remedial education, 20 hours of outpatient alcohol treatment, and to attend three Alcoholics Anonymous meetings per week for 12 weeks. Defendant’s incarceration was stayed pending appeal.

He appeals his DUI conviction. He argues the trial court abused its discretion in denying him an opportunity to present an expert’s testimony about his blood-alcohol level when he was arrested for DUI. We disagree and affirm.

On February 23, 1991, at approximately 2:45 a.m., defendant was stopped by police after he turned his vehicle and drove the wrong way on a one-way street in Champaign. Ted Turner, a University of Illinois police officer, testified that when he approached defendant’s vehicle, he smelled alcohol on defendant’s breath. He also observed defendant’s eyes were glassy and somewhat bloodshot, and his speech was slightly slurred. Defendant initially denied he had been drinking, but later admitted he had consumed several drinks several hours earlier. When defendant exited the vehicle, Officer Turner noted defendant leaned on his vehicle to balance himself.

According to Officer Turner, defendant experienced difficulties while performing two coordination tests. The tests administered to defendant were the walk-and-turn test and the one-legged stand test. Three times during the walk-and-turn test, defendant could not maintain heel-to-toe contact, and on one occasion he counted out an incorrect number of steps. Officer Turner also observed defendant had difficulty balancing himself. During the one-legged stand test, defendant’s balance was poor, he was unable to count in sequence, and he put his foot down three times by the time he reached the count of 1017 — the test requires the person being tested to hold up one foot while counting from 1001 to 1030. Although on cross-examination Officer Turner agreed defendant did not fall down, stumble, or need help in standing or walking, he characterized defendant’s imbalance as “greater than normal.” Officer Turner concluded defendant was under the influence of alcohol and arrested him. Defendant told Officer Turner he would take the breathalyzer test.

Another University of Illinois police officer, Mike Kurlakowsky, testified he was called to defendant’s traffic stop to assist Officer Turner. His testimony corroborated Officer Turner’s testimony regarding defendant’s difficulty in balancing himself. Officer Kurlakowsky described defendant’s balance as slightly off while he performed the walk-and-turn test. He characterized defendant’s balance during the one-legged stand test as very poor. He too, agreed defendant did not require help in standing and defendant never fell. Despite this, he, too, thought defendant was under the influence of alcohol.

Sharon Little, a Champaign County correctional officer and a certified breathalyzer-test operator, testified she was called about 3 a.m. to administer a breath test to defendant. She explained to defendant a properly conducted breath test cannot be performed before observing the party for 20 minutes during which the party cannot eat, smoke, drink, vomit, or belch. She began the 20-minute observation period of defendant. Ten minutes into the observation period, defendant informed her he had belched. She started the observation period over. Fifteen minutes later, however, defendant again informed her he had belched. She did not see defendant belch on either occasion. After defendant said he had belched a second time, Officer Little told him he was not cooperating with the testing procedure. She concluded his actions represented a refusal to take the breath test. Officer Little agreed with defense counsel’s statements that defendant never fell off his chair nor exhibited any strange behavior and he did not cry or swear during the observation period. She concluded defendant was under the influence of alcohol because his eyes were glassy, he smelled of alcohol, and he was uncooperative.

During the defense case, University of Illinois police officer Mike Kurlakowsky was examined anew. Officer Kurlakowsky explained Laura Canham, the passenger in defendant’s vehicle, had remained at the scene to drive defendant’s car home. He denied telling Canham he had not smelled alcohol on defendant’s breath. He explained he had not noted an alcoholic smell on defendant’s breath, because during the testing and communicating with defendant, he was either to the side of or behind defendant.

Defendant’s roommate, Steve Goldman, a 20-year-old University of Illinois student, testified he and defendant played a drinking game the evening of February 22, 1991. Goldman testified defendant drank three to four beers during the game, which lasted from 8 p.m. until 9:45 p.m. Defendant took a shower and he, Goldman, and others went out to bars at 10:20 p.m. Goldman stated each of them bought a quart of beer when they reached a bar called “Cochran’s.” According to Goldman, they stayed there until midnight and defendant spent 80% of his time dancing. At midnight, he and defendant proceeded to another bar called “O’Malley’s” to play foosball, a table soccer game which Goldman characterized as requiring a great deal of skill and coordination to play. Neither he nor defendant consumed alcohol while at O’Malley’s. They went home at 1 a.m. Defendant was drinking another beer at home when Goldman went to bed around 1:30 a.m. Before retiring to bed, Goldman talked with defendant about the foosball game and their evening. Goldman stated he knew when someone, including defendant, was under the influence of alcohol. Common characteristics of someone in this state, according to Goldman, are slurred speech, lack of coordination, and somewhat incoherent speech. Although he agreed defendant drank three to four beers before leaving home, and a quart of beer at Cochran’s, Goldman did not think defendant was under the influence of alcohol because he had been acting normally, talking intelligently, and had no difficulty with his balance.

Laura Canham, a 21-year-old University of Illinois student, was the passenger in defendant’s vehicle the night defendant was arrested. She testified defendant arrived at her sorority house at approximately 2:20 a.m. to pick her up. She had called him because she could not sleep after seeing a movie which frightened her. Canham had not consumed any alcohol that evening. She spoke with defendant on the phone for 15 minutes before he came to pick her up. According to Canham, defendant spoke clearly on the phone and showed no coordination problems negotiating the stairs to her sorority house. He was also able to parallel park his vehicle and had no difficulty shifting his manual transmission. Canham testified defendant performed both field coordination tests properly. Defendant walked heel-to-toe and took the number of steps which he was asked to take without loss of balance or walking unusually. She noted his knees were shaking slightly, but explained this was because he was wearing shorts and he was cold. She noted during the one-legged stand test, defendant put his foot down after reaching the count of 12 or 15. She said his ankle buckled slightly. When the officer told defendant to try the test again, he lasted slightly longer before dropping his foot again. Canham did not think defendant was under the influence of alcohol. She did not smell alcohol on defendant’s breath or notice him slurring his speech. In addition, she testified she did not think his eyes were glassy. However, she did not look at his eyes.

Defendant testified that on February 22, 1991, he drank a lite beer around noon with his macaroni and cheese lunch. He drank another lite beer at 5 p.m. while cleaning his house. At 7 p.m. he drank another can of lite beer and ate the remaining macaroni and cheese for dinner. He drank a glass of beer with a higher alcohol concentration than a lite beer shortly after 7 p.m. when he went out with a friend and the friend’s uncle. Defendant stated, as his roommate had testified, he drank three to four beers while he played the drinking game with Goldman between 8 p.m. and 9:45 p.m. Defendant agreed he bought a quart of beer at Cochran’s about 10:40 p.m., but stated he only drank a fourth of it because someone took the quarts from the table while defendant and his friends were dancing. Defendant then bought a genuine draft beer around 11 p.m., but stated he drank only about four-fifths of it. At around 11:30 p.m. he bought another beer, but drank only about five ounces of it before they decided to leave to play foosball elsewhere. Defendant stated he had no difficulty dancing while at Cochran’s, and did not feel the alcohol which he had consumed was affecting him. Defendant testified that while at O’Malley’s neither he nor his roommate purchased alcoholic drinks. He also felt they played foosball quite well.

According to defendant, he did not finish the beer he opened when they returned home at 1 a.m. February 23. He was tired of drinking. When he went to pick Laura Canham up he parallel parked his vehicle without difficulty. Defendant described the pavement where he performed the coordination tests as having a grade of 4 to 5 inches along a distance of approximately 8 to 10 feet. He indicated he was very cold and he had weak ankles resulting from high school sports.

According to defendant, his belches during the breath test observation period were involuntary. When he gets nervous and upset, his stomach gets knotted and he vomits sometimes and most often he belches. Defendant denied he was under the influence of alcohol. On cross-examination, although he agreed he had approximately 11 drinks during a 10-hour period, defendant denied his alcoholic consumption affected his coordination.

Defendant’s mother, Bonita Kane, testified defendant phoned her from the police station after his arrest and after the terminated breath analysis. She described defendant’s speech over the phone as normal for him and explained defendant had a slight lisp which was caused by orthodontal work and from wearing a retainer after this work. She would not, however, characterize his speech as slurred. She stated defendant speaks slowly when he wants to be certain someone understands what he is saying. Defendant told his mother he did not refuse to take the breath test. Mrs. Kane also stated her son has a weak stomach which causes him to either vomit or to belch involuntarily when he becomes upset. She also explained her son had weak ankles from playing sports in high school. In addition, she said her son’s eyes get bloodshot when he is extremely tired.

Defendant sought to introduce expert testimony about his blood-alcohol concentration the night he was arrested. Outside the presence of the jury, Dr. Roy Schenk testified about his qualifications and method for determining defendant’s blood-alcohol level. Dr. Schenk testified he was a research chemist. He had done his undergraduate work at Purdue University and graduated in 1951 with a major in soil chemistry. He did his graduate work at Cornell University in New York, where he obtained his Ph.D. in 1954 in organic chemistry. He testified he taught general, analytical, organic, and biochemistry at the college level. He has been employed by Bio-Energetics Incorporated for 12 years as a consultant and expert witness in DUI cases. His prior expert testimony in court involved examining instrumentation used for breath and blood-alcohol testing. His evaluations dealt primarily with the accuracy of these instruments. Dr. Schenk testified he applies chemistry to solve problems related to chemical analysis, toxicology, and calculation of breath-alcohol concentration in DUI cases.

Dr. Schenk would testify about what he called defendant’s blood-alcohol curve. A curve is calculated by considering the amount of alcohol a person drank; his size, height, weight, and sex, and the amount of food the person has eaten; the amount of water in his body; and whether the person had taken medication. He had testified as an expert in 125 DUI cases in the past 10 years. He stated he had obtained the necessary information from defendant to construct defendant’s alcohol curve on February 23, 1991. He also explained his results were dependent on information provided by defendant. Dr. Schenk used a mathematical formula developed in approximately 1930 to compute alcohol curves. However, he had adapted the formula to fit his needs. He also stated this formula was commonly used by other professionals in his field.

During the offer of proof, defense counsel stated Dr. Schenk would testify defendant’s blood-alcohol level the morning of February 23 was .057. She further stated Dr. Schenk would not explain this measurement further, nor would defendant request a jury instruction about the significance of the measurement.

The State asked Dr. Schenk what formal education he received to enable him to establish a blood-alcohol level by evaluating individual characteristics such as a person’s metabolism rate, the amount of water in a person’s body, a person’s bone structure and the amount of fat in a person’s body. He responded he had not had a great deal of formal training, but explained this evaluation only required applying basic chemistry.

The State objected to considering Dr. Schenk as an expert because Schenk stated that being able to formulate an alcohol curve required only a general chemistry background. It argued Schenk was not an expert. In addition, it objected to the speculative nature of an alcohol curve and contended Schenk’s testimony was not relevant. The trial court ruled Dr. Schenk’s testimony was irrelevant and a proper foundation was not laid because of assumptions he had to make to arrive at defendant’s alcohol curve.

A court of review will not disturb a trial court’s ruling regarding admissibility of evidence absent a clear abuse of discretion. (People v. Enis (1990), 139 Ill. 2d 264, 281, 564 N.E.2d 1155, 1161; People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.) Defendant argues the court abused its discretion by restraining him from fully defending himself. He contends his defense was substantially prejudiced because testimony he presented about his alcohol consumption, combined with the expert testimony which was not permitted, would have established he had no motive to belch to avoid the breath test because he was not under the influence of alcohol.

However, defendant presented testimony by his friends Laura Canham and Steve Goldman. Each testified defendant was not under the influence of alcohol on February 23. Defendant’s mother also testified defendant did not speak as if he were under the influence of alcohol when she spoke to him from the police station. His mother provided additional testimony about her son’s weak ankles, bloodshot, tired eyes, and his tendency to belch when nervous. In addition, defendant testified he was not under the influence of alcohol February 23. This evidence supported defendant’s argument that he was not under the influence of alcohol the morning in question. Defendant was provided an opportunity to attack each facet of the State’s case against him. He was not substantially prejudiced by the exclusion of Dr. Schenk’s testimony.

In addition, the trial court correctly excluded that testimony. The State argues defendant did not establish his expert was qualified to provide an opinion about defendant’s alcohol level or that Dr. Schenk’s opinion was based on generally accepted principles. In addition, the State argues Schenk’s testimony would not have assisted the jury. We agree.

Expert testimony is allowed where the individual has experience and qualifications which provide the expert with knowledge not commonly known to laypersons. (Enis, 139 Ill. 2d at 288, 564 N.E.2d at 1164; People v. Jordan (1984), 103 Ill. 2d 192, 208, 469 N.E.2d 569, 576.) The burden of establishing an expert’s qualifications rests with the proponent. (Jordan, 103 Ill. 2d at 208, 469 N.E.2d at 576; People v. Groth (1982), 105 Ill. App. 3d 244, 246, 434 N.E.2d 65, 66.) Defendant likens Dr. Schenk’s expertise to the expert in Rock v. Pickleman (1991), 214 Ill. App. 3d 368, 574 N.E.2d 682. In Rock, a medical malpractice action, the court ruled a nonsurgeon could testify as an expert about the proper standard of care for a surgeon when the non-surgeon’s testimony relied on a surgeon’s view. The medical procedure at issue was not a surgery.

The State correctly argues Dr. Schenk’s expertise in determining a persons’ blood-alcohol level at a particular time in the past was suspect. His prior experience primarily addressed sources of error in breathalyzer equipment. Although Dr. Schenk was experienced in chemistry, defendant did not show what Dr. Schenk’s knowledge was regarding metabolism or how alcohol is absorbed in humans.

Defendant correctly contends an individual may qualify as an expert based on experience alone. (Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 481 N.E.2d 1037.) According to defendant, Dr. Schenk’s knowledge, skill, training and education established he was an expert in the field in which his testimony would be directed. He cites Webster Manufacturing Co. v. Mulvanny (1897), 168 Ill. 311, 48 N.E. 168, to show the low threshold required to permit even a layperson to testify about the percentage of alcohol in a specific beverage. This expert qualified due to his individual experience in consuming alcohol. Defendant argues this case supports his contention that Dr. Schenk was qualified to testify about issues related to the breathalyzer and its methodology. However, this was not the basis for Dr. Schenk’s testimony during the offer of proof. Rather, he was to testify about defendant’s blood-alcohol curve, not about the breathalyzer or its methodology.

Defendant fails to consider the added variables in his case as compared to Duffy. Dr. Schenk stated a person’s height, weight, size, metabolism, et cetera, would affect a person’s alcohol level. A lay expert testifying about the alcohol content of one particular beverage does not present such specialized variables as defendant’s case. Defendant did not establish a foundation for admitting Dr. Schenk’s testimony as that of an expert.

The expert must also rely on scientific theories which are generally accepted in the relevant field. (Jordan, 103 Ill. 2d at 208, 469 N.E.2d at 576.) Although Dr. Schenk testified the mathematical formulation which he used and which was developed in the 1930’s was commonly used in the field, he had varied this formulation. Defendant did not provide evidence this variation was generally accepted. In addition, no testimony showed this mathematical computation was commonly recognized as reliable or accurate in the field. More importantly, defendant failed to show the variation of the mathematical computation as to him was scientifically reliable.

Expert testimony must also assist the trier of fact. (Enis, 139 Ill. 2d at 288, 564 N.E.2d at 1164; Jordan, 103 Ill. 2d at 208, 469 N.E.2d at 576.) The State correctly notes evidence of a defendant’s refusal to submit to a test designed to determine whether he is under the influence of alcohol is admissible as circumstantial evidence. (People v. Roberts (1983), 115 Ill. App. 3d 384, 387-88, 450 N.E.2d 451, 453; People v. Miller (1983), 113 Ill. App. 3d 845, 847-48, 447 N.E.2d 1060, 1061.) This evidence was helpful to the trier of fact. The jury could have inferred defendant’s actions during the observation period showed he refused the test because he knew it would have confirmed he was driving under the influence.

Dr. Schenk’s testimony, on the other hand, would not have assisted the jury. Dr. Schenk would have testified defendant’s blood-alcohol level was .057. However, he was not going to provide an evaluation about this blood-alcohol level. In addition, defendant was not going to request a jury instruction about the significance of a .057 blood-alcohol level. Absent additional explanation about the meaning of Dr. Schenk’s opinion that defendant’s blood-alcohol level on February 23 was .057, his testimony would not have helped the jury decide whether defendant was driving under the influence of alcohol. In addition, an alcohol level of .057 does not create any presumption or inference about whether defendant was under the influence of alcohol. Ill. Rev. Stat. 1989, ch. 951/2, par. 11-501.2 (b)(2).

The trial judge did not abuse his discretion by refusing to allow Dr. Schenk to testify as an expert about defendant’s blood-alcohol level the morning he was arrested for DUI. Defendant failed to establish a foundation for this testimony. In addition, the testimony lacked relevancy. We affirm the trial court.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    AIRCO INDUSTRIAL GAS DIVISION, THE BOC GROUP, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0313
    Opinion filed December 30, 1991.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellant.
    H. Randolph Williams and Michael J. Garvey, both of Baker & McKenzie, of Chicago, and Patrick V. Reilly, of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On April 20, 1988, defendant Illinois Department of Revenue (Department) issued plaintiff Aireo Industrial Gas Division, the BOG Group, Inc., a notice of tax liability assessing a deficiency which included $227,192 plus penalties and interest thereon, under the Retailers’ Occupation Tax Act (Act) (Ill. Rev. Stat. 1989, ch. 120, par. 440 et seq.). The assessment covered a period from January 1, 1982, to December 31, 1986. On June 20, 1990, plaintiff filed a complaint in the circuit court of Sangamon County for administrative review (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 104) of the Department Director’s decision of April 5, 1990, to adopt the assessed deficiency under the Act. The circuit court reversed and the Department appeals. We affirm.

The parties have stipulated to the following facts. Plaintiff is engaged in the business of selling industrial gases, which are manufactured in either gaseous or liquid form. The liquid gases, which are pertinent here, are manufactured on plaintiff’s premises and must be stored at temperatures below zero Fahrenheit to remain in liquid form. In order for plaintiff’s customers to take possession of liquid gases, they must have insulated storage facilities on their premises. Plaintiff’s customers primarily use the liquid gases in their manufacturing operations. If the customers need to use the liquid gases in a gaseous form, they must have vaporizing equipment on their property to convert the liquid gas to a gaseous form.

Plaintiff’s customers can either purchase their own storage tanks and/or vaporizing equipment, or rent the equipment from plaintiff. If a customer rents the equipment from plaintiff, they must pay plaintiff an additional facility fee. Plaintiff utilizes a bulk product agreement for the purchase of their liquid industrial gases and the rental of their storage and/or vaporizing equipment. The bulk product agreement contains two separately negotiated prices. One price is for the purchase of the liquid gas, which is a standard unit price on the quantity of the liquid gas. The other price is a facility fee for the rental of the storage and/or vaporizing equipment. The bulk product agreement provides that if a customer rents storage and/or vaporizing equipment from plaintiff, plaintiff retains title to that equipment. In addition, the agreement provides that plaintiff reserves the right to substitute equipment for the equipment already located on the customer’s premises, and the right to remove all equipment at the termination of the agreement.

The retailers’ occupation tax (ROT) assessment in question here was based on $4,938,960 of facilities fees which plaintiff collected from its customers during the assessment period.

On May 10, 1988, plaintiff protested the assessment of a deficiency, which included the ROT assessment. A hearing was held before an administrative law judge (ALJ). Thomas F. Sullivan, plaintiff’s regional manager of administration, testified at the hearing as follows: (1) the customer is charged for the industrial gas at the time of delivery ; (2) the facility fee is billed monthly; (3) the facility fee is not dependent upon the quantity of liquid gas purchased, but strictly on the contracted price; (4) plaintiff utilizes a facilities fee schedule which stipulates the rental per month for each size storage system, and the rental per month for the vaporizing equipment; and (5) 30% of plaintiff’s sales are for carbon dioxide, and because of a prior antitrust judgment, it utilizes separate contracts for the sale of that gas and for the rental of storage equipment.

Sullivan also testified: (1) if a customer purchases liquid gas from plaintiff, the customer must either purchase its own storage equipment or rent from plaintiff; (2) the customer can purchase the storage equipment from an outside vendor; (3) the customer cannot rent storage equipment from any other vendor but must rent the equipment from plaintiff to ensure product quality; (4) plaintiff does not manufacture storage tanks, but purchases the equipment from outside vendors; (5) plaintiff cannot sell liquid gas to a customer who does not have the special storage tank available on its premises; and (6) the facilities fees are based on plaintiff’s cost of the storage tanks and/or vaporizing equipment.

The sole issue here is whether the facilities fees charged by the plaintiff for the rental of storage equipment and/or vaporizing equipment are subject to the ROT. Section 2 of the Act imposes a tax

“upon persons engaged in the business of selling tangible personal property.” (Ill. Rev. Stat. 1989, ch. 120, par. 441.) The tax is measured by gross receipts from the sales. (Ill. Rev. Stat. 1989, ch. 120, par. 441.) Section 1 of the Act provides that “ ‘Gross receipts’ from the sales of tangible personal property at retail means the total selling price or the amount of such sales.” Ill. Rev. Stat. 1989, ch. 120, par. 440.

The Department argues that the definition of “selling price” or “amount of sale” provided in section 1 of the Act is dispositive. Section 1, in part, provides:

“ ‘Selling price’ or the ‘amount of sale’ means the consideration for a sale valued in money whether received in money or otherwise *** and shall be determined without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost or any other expense whatsoever ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 120, par. 440.

The Department points out that plaintiff is singularly engaged in the business of selling liquid industrial gases and, in order to complete a sale of that product, plaintiff must rent storage tanks and/or vaporizing equipment to those of its customers who do not own their own equipment. Accordingly, the Department maintains the facilities fees plaintiff charges those customers are actually reimbursements for expenses it incurs in selling them gas. The Department then asserts that under those circumstances, plaintiff cannot properly deduct those facilities fees from the total charges obtained from those customers for the gas and the use of the equipment in determining its revenue subject to the Act, but those fees must be included in its ROT base. Under this theory, plaintiff is wrong in treating the facilities fees as revenues derived from an independent service provided to its customers.

The Department contends the findings of the ALJ were correct. She found that the facilities fees charged plaintiff were not “rental” fees “but rather separately stated costs to reimburse [plaintiff] for certain expenses necessary to sell its product.” The ALJ concluded plaintiff’s “customers are buying tangible personal property in an incomplete form that mandates [plaintiff] maintain storage tanks and/or vaporizing equipment on customer premises in order to complete the transfer of a useable product.”

The Department maintains the instant case is analogous to a line of cases where charges for certain services provided in conjunction with the sale of tangible personal property, and which were separately charged to the customer, were found to be a cost of completing the sale which should be included in the vendor’s taxable gross receipts. For example, in Gapers, Inc. v. Department of Revenue (1973), 13 Ill. App. 3d 199, 300 N.E.2d 779, a caterer, who arranged parties at the homes of his customers, deducted the cost of transporting the food and equipment to its customers’ homes from his gross receipts. The transportation costs were negotiated for separately from the customer’s other costs and were separately shown on the caterer’s invoices.

On review, the circuit court upheld the Department’s assessment under the Act on the caterer’s revenues from transportation charges. The appellate court affirmed. The Gapers’ court noted that the caterer not only agreed to prepare the food, but also agreed to carry out the contract at the customer’s home. Under those circumstances “ ‘the delivery becomes as important to the seller as to the buyer; it becomes an inseparable link in the chain of events leading to the completion of the sale of meals to purchasers and not merely incidental to the purpose of the [caterer’s] business.’ ” Gapers, 13 Ill. App. 3d at 203, 300 N.E.2d at 782.

Plaintiff argues Gapers is distinguishable, because the court there based its conclusion on the parties’ contract, which also required that the caterer prepare the meals and perform the contract in the customer’s home. Plaintiff claims, here, it agreed only to deliver the liquid gas to its customers’ premises, and to be analogous to Gapers plaintiff would have had to agreed to provide industrial gas to the customer in a form ready for use, rather than in a storable liquid form.

In Velde Ford Sales, Inc. v. Department of Revenue (1985), 136 Ill. App. 3d 589, 483 N.E.2d 721, a motor vehicle retailer furnished its customers with a service where it would prepare and deliver to the Secretary of State the customer’s application for license plates and a title certificate. The customer had the option of applying to the Secretary of State himself. The motor vehicle retailer failed to include the charges for the above service in the amount of its gross receipts, upon which the ROT was calculated. On administrative review, the circuit court reversed the decision of the Department which upheld the assessment of a tax liability on those services under the Act. This court reversed the circuit court. On appeal, the motor vehicle retailer argued that the application service was an independent nontaxable service furnished to its customers after the sale of the automobile. The Department maintained that the application service was an integral part of the sales, and revenues derived from the service should be included in the sales price.

There, the Department relied on the decision in Gapers to support its position that the vehicle retailer’s revenues should be subject to taxation under the Act. This court noted the motor vehicle retailer was not attempting to deduct sales expenses from the sales price, as in Gapers, but was merely charging its customers for a service made available to them. Nevertheless, this court deemed the situation more analogous to Gapers than to those decisions where taxable sales of tangible personal property were found to exist in conjunction with independent nontaxable services. This court concluded the application service was substantially “ ‘ “an inseparable link in the chain of events” ’ ” involved in the sale of automobiles, even though the service was provided after the sales of the automobiles were concluded. Velde, 136 Ill. App. 3d at 591, 483 N.E.2d at 723, quoting Gapers, 13 Ill. App. 3d at 203, 300 N.E.2d at 782.

This court’s decision in Velde was based, in part, on certain sections of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, pars. 3 — 104(b), 3 — 113(a)), which imposed substantial responsibility upon motor vehicle retailers to aid the automobile purchasers in the application of license plates and title certificates. Consequently, this court concluded that at least some of the fees charged for the application service was for service the motor vehicle retailer was required to perform.

In Keystone Consolidated Industries, Inc. v. Allphin (1977), 45 Ill. App. 3d 714, 359 N.E.2d 1202, Keystone contracted with Chemetron to build an on-site plant to provide Keystone with industrial gases. The gas was produced on Keystone’s premises by a system built and owned by Chemetron. Keystone paid Chemetron $14,000 in facility charges on a monthly basis, and a $2,000 storage charge in addition to a base price of $0.025 per 100 cubic feet of industrial gas. After concluding the contract was for a sale of tangible personal property, the Keystone court considered the question of whether the separately stated facility charges and storage charges should be included in the taxable selling price under section 2 of the Use Tax Act (Ill. Rev. Stat. 1989, ch. 120, par. 439.2). This section of the Use Tax Act contains the exact language of section 1 of the Act, prohibiting the deduction of expenses from the “selling price.” The Keystone court concluded the charges were part of the taxable selling price and noted: “Here the facility and storage charges are for the purpose of compensating Chemetron for some of the costs of producing and storing the oxygen and nitrogen supplied to Keystone. Under the statute, these charges are a part of the selling price.” Keystone, 45 Ill. App. 3d at 719, 359 N.E.2d at 1205.

Plaintiff maintains the instant case is distinguishable from Keystone because Keystone did not involve a merchant customer, but rather an on-site customer. In addition, Chemetron did not sell and deliver the industrial gases to Keystone, but produced and stored the gases on Keystone’s property.

Plaintiff argues that the instant case is more analogous to those decisions where sales provided in conjunction with nontaxable services were deemed sufficiently independent of the nontaxable services to be taxed under the Act. In Snite v. Department of Revenue (1947), 398 Ill. 41, 74 N.E.2d 877, the court concluded that the operator of a country club was, in addition to providing social services, engaged in the business of selling food and drink to the members, and those revenues derived from the sales were subject to the Act. The court noted:

“If the service rendered in connection with the article sold does not enhance its value and there is a fixed or ascertainable relation between the value of the article and the value of the service rendered in connection therewith, then the vendor is engaged in the business of selling at retail and also engaged in the business of furnishing service, and is subject to tax as to the one business and tax-exempt as to the other.” (Snite, 398 Ill. at 46, 74 N.E.2d at 880.)

Similarly, in Lake View Memorial Gardens, Inc. v. Department of Revenue (1984), 123 Ill. App. 3d 120, 462 N.E.2d 1000, the court found that plaintiff, who primarily provided interment services, was also a retailer as to cement burial vaults. There, the customer could purchase vaults from another source and still obtain plaintiff’s interment services.

Plaintiff argues that the “inseparable link” language used in Gapers and Velde can be applied too broadly and lead to inconsistent decisions. Plaintiff suggests that the best method for distinguishing between a nontaxable service charge rendered in conjunction with the sale of tangible personal property, and taxable services which are essential to the production of the property sold, is to ask, “Can the product that the customer has agreed to buy be sold to the customer without rendering the service?” If “yes,” then the service should not be included in the selling price of the sale of tangible personal property.

We agree with plaintiff that the most important element of the situation here is that plaintiff’s customers are not required to rent equipment from it but can purchase and use their own if they wish. Accordingly, we hold that for this reason no “inseparable link” exists between the sale of the gas and the furnishing of the storage facilities. The closest case to that presented by the situation here is Velde, where the customer was not required, as a part of the sales contract, to accept and pay for the title services. However, there, unlike here, the seller was required to make those services available.

We agree with the circuit court that the deficiency should not have been assessed. We affirm the decision of the circuit court setting aside the deficiency assessment.

Affirmed.

STEIGMANN and LUND, JJ., concur.