text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK CARUSO, Defendant-Appellant.
    Second District
    No. 2-89-0162
    Opinion filed August 23, 1990.

      Joseph M. Laraia and Kenneth D. Hubbard, both of Joseph M. Laraia & Associates, P.C., of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Frank Caruso III was charged with driving under the influence of alcohol, driving with a blood-alcohol concentration of .10 or more, and driving in the wrong lane. A jury found defendant not guilty of driving under the influence of alcohol but guilty of driving with a blood-alcohol concentration of .10 or more. The jury was unable to reach a verdict on the charge of driving in the wrong lane. Defendant was sentenced to one year’s probation, alcohol counseling, and fined $500 plus court costs.

On appeal, defendant contends (1) the verdicts of not guilty for driving under the influence of alcohol and guilty for driving with a blood-alcohol concentration of .10 or more are legally inconsistent; (2) the State failed to lay a proper foundation for admission of the breath test result; and (3) the State failed to prove defendant guilty beyond a reasonable doubt. For the reasons stated below, we affirm.

The evidence adduced at trial is summarized as follows.

Police officer Steven Weatherford testified he was on duty traveling north on Route 83 on December 5, 1987, at approximately 12:21 a.m., when he saw defendant’s car facing southbound in a northbound lane on Route 83. Route 83 had three lanes for through traffic and two left-turn lanes for each direction of traffic. Weatherford was stopped at the North Avenue light in the outside left-turn lane of Route 83, when he noticed defendant’s car stopped at the light in the north, left-through lane of Route 83, facing southbound. He activated his lights and pulled his car in front of defendant’s. When the light for the northbound through traffic turned green, the traffic in the left through lane merged to the center lane.

Weatherford approached defendant in his car and asked him what he was doing. Defendant responded that he was making a left turn. Weatherford detected a strong odor of alcoholic beverage coming from defendant’s breath and noticed defendant’s speech was slurred, his eyes were glassy and bloodshot, and his shirttail was untucked. Defendant used both hands to pull himself out of the car. When defendant walked to the back of the car, Weatherford did not notice any physical problems; defendant was not limping. Weatherford asked defendant if he had been drinking, and defendant told him “he had a couple.” When Weatherford asked defendant to perform some field-sobriety tests, specifically the walk-and-turn test and the one-legged-stand test, defendant responded that he could not do these tests because he had foot surgery on his right foot two weeks ago. Defendant said nothing about his knees at this time. Weatherford asked defendant to do the one-legged-stand test on his left foot. Defendant agreed and attempted the test, but he could only stand on this foot to a count of four instead of 30 as he was instructed. Believing that defendant was under the influence of alcohol, Weatherford placed defendant under arrest. On cross-examination, Weatherford stated he noticed nothing unusual about defendant’s walking as he walked while handcuffed from the squad car to the station, a distance of 20 to 40 feet.

Officer Kveton testified he responded to the scene and observed defendant with Officer Weatherford. He believed defendant was under the influence of alcohol due to a somewhat strong odor of alcohol, slurred speech, glassy and bloodshot eyes, a belligerent attitude, and poor balance. On cross-examination, Kveton stated he could not remember whether defendant performed the walk-the-line test.

Officer Wanderer testified that he performed the breath test on defendant at the police station. He had administered over 1,000 breath tests, and he was familiar with the Department of Public Health (Department) standards for testing of alcohol in blood and breath. The court took judicial notice of the Department’s standards. Wanderer received 40 hours of breath testing training in 1972 in compliance with the Department’s standards. He passed the practical and written tests and was certified in 1972. He has been recertified every year and has been certified to use the Breathalyzer 2000 for six years. His police department uses the Smith and Wesson Breathalyzer 2000, which is approved by the Department of Public Health, and the machine is regularly tested. Two pages in the breathalyzer logbook had been filled out by a Department inspector who tested the machine. One page stated that two tests were run on the machine on November 13, 1987, using a .10 simulator, and both tests came out -with .10 reading. On another page, the inspector wrote that on December 9, 1987, two tests were run with a .10 simulator and the tests came out with a .10 and a .09. The .09 reading, Wanderer testified, was in compliance with the Department standards, which allowed a variance for testing of .01. Along with the entries in the logbook, decals stating that the machine was accurate and precise within the limits prescribed by the Department had been affixed to the logbook pages. The logbook entries and the decals were admitted into evidence over defendant’s objection, though they have not been made a part of the appellate record.

In administering defendant’s test, Wanderer testified he followed a checklist in compliance with Department standards. The checklist was admitted into evidence. Wanderer completed the top part of the checklist, filling in the date, the instrument’s serial number, the name of the operator, and the name and driver’s license number of the subject. The checklist contained the following six steps that were checked off by Wanderer.

“(1) Check to insure power switch is on.
(2) Observe subject for twenty minutes prior to testing to prevent any oral intake.
(3) Insert test record ticket.
(4) Press start/test. Wait for ‘blow sample.’
(5) Take sample until ‘analyzing’ appears.
(6) When ‘analysis complete’ appears — remove test record ticket.”

Wanderer stated he did not have to turn on the machine because it is kept on 24 hours a day. Before defendant took the test, Wanderer observed defendant for 23 minutes. During that time he did not see defendant put anything in his mouth; nor did he see him belch, vomit, or regurgitate. Wanderer then inserted the ticket into the machine and pushed a button. The machine took a sample of the room air and purged that sample to come up with a reading of .00. At this point, Wanderer believed the machine was operating properly. When the machine said “blow sample,” he inserted a fresh mouthpiece and had defendant blow into the machine. The machine printed and displayed a reading of .18. The printout, which had defendant’s name on it, was admitted into evidence.

Wanderer testified he also completed an arresting officer’s checklist, which was admitted into evidence. Among other things, this checklist stated that the test was performed by an operator licensed by the Department of Health according to the Department of Health’s/manufacturer’s recommended testing procedures, and the instrument had been certified within 45 days of the date of the test as evidenced by a Department decal.

Defendant testified he had two vodka tonics from 6 to 7:30 p.m. Then, from approximately 8:30 to 11 p.m., he had three more vodka tonics at a restaurant. When he left the restaurant, he did not feel the effects of the alcohol; he was driving fine. He did not drive south in the northbound lane on Route 83 at the North Avenue intersection. Rather, he was in the south, inside left-turn lane of Route 83, preparing to make a left turn.

Defendant told the officer who arrested him that he could not perform a one-legged-stand test because he just had surgery on his foot. He also told the officer he could not do the test on the other leg because he had knee problems. Defendant testified he had Reiter’s syndrome, which caused atrophy in his leg and caused his leg to be unstable. He had knee surgery 10 months prior to the offense. Defendant testified the officer did not ask him to do the walk-and-turn test. He also testified that the other officer did not arrive to the scene until after he had been handcuffed.

Defendant’s father and sister testified that defendant had knee problems due to Reiter’s syndrome. They both saw defendant on December 5 at approximately 2 a.m., and they did not think he was under the influence of alcohol.

Richard Hall testified for defendant as an expert on the breathalyzer instrument. He is a retired village prosecutor and a chemist. As a prosecutor he became involved in studying and conducting experiments involving the testing of alcohol in blood and breath. He worked with the Department of Public Health to promulgate certification requirements for officers operating alcohol-testing instruments. He started the course for breath operators. He has been certified to operate breath-testing instruments and has administered over 1,500 tests. He has lectured and written articles on the subject of breath testing.

Hall stated that the requirement that the breath instrument be tested every 45 days does not insure the accuracy of the machine for those 45 days. He said the accuracy of the machine should be established by testing the machine for every test given to a motorist. He also stated that each motorist should be tested twice, not once, to obtain a reasonably accurate result. He stated it was quite common to have two tests show different results. The difference could be due to contamination caused by an unconscious belch, an upset stomach, or radio frequency interference. Also, there could simply be random error, where the machine temporarily malfunctions. Hall stated that the Smith and Wesson Breathalyzer 2000 can come very close to accurately identifying the concentration of alcohol if two room air tests and two breath tests are done for each subject.

Hall also stated that the test provides only, at best, an estimate of a person’s blood-alcohol concentration because the machine fails to take into account four variables. First, the machine fails to account for different partition ratios. Hall explained that the machine is set at a partition ratio of 2,100 to 1, meaning the machine assumes every person’s breath will contain one twenty-one one-hundredths the quantity of alcohol that will be found in the blood. Hall said people have different ratios. The vast majority fall within a ratio of 1,900 to 1 to 2,300 to 1, though there are remote possibilities that people could be outside this range. Hall did not know defendant’s partition ratio, but, assuming defendant’s partition ratio was 1,900 to 1, his test result would have dropped from .18 to .163. Second, the machine fails to take the actual temperature of the sample; this failure can result in the test being off 6% to 7%. Third, the machine fails to account for the fact that people have different levels of water content in their blood. The machine functions on the erroneous assumption that everyone’s blood has the same water content. Fourth, and most significant, the machine fails to account for the likelihood of contamination. The machine is based on the erroneous assumption that the alcohol air taken deep from the lung will remain unchanged as it comes up through the bronchial tree into the mouth and into the machine. Hall said contamination could cause the deep lung air to vary considerably from the air that enters the machine.

Hall concluded that a single test done on defendant could not determine with a reasonable degree of medical and scientific certainty that defendant’s blood-alcohol concentration was over .10. Hall also testified that it was not possible to determine whether defendant had an alcohol concentration of .10 or more at the time he was driving his vehicle one hour prior to the test because one could not extrapolate with any reasonable degree of certainty.

The State, in rebuttal, offered the testimony of John Baker, who testified he was called to tow defendant’s vehicle on December 5, 1987. When he got to the intersection of Route 83 and North Avenue, he saw defendant’s vehicle in the northbound lane of Route 83 facing south with a squad car in front of the vehicle.

Defendant’s first appellate contention is that the verdicts of not guilty of driving under the influence of alcohol under section 11— 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(2)) and guilty of driving with a blood-alcohol concentration of .10 under section 11 — 501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1)) are legally inconsistent.

Verdicts are legally inconsistent when a guilty verdict is premised on the existence of an element of the offense and a not guilty verdict is premised on the nonexistence of that same element. (People v. Frias (1983), 99 Ill. 2d 193, 198; People v. Scherzer (1989), 179 Ill. App. 3d 624, 648.) We do not agree with defendant’s contention that the guilty verdict of driving with a blood-alcohol concentration of .10 or more is premised upon a finding that defendant drove under impairment, a necessary element of driving under the influence. The State need not prove impairment to prove a violation of section 11 — 501(a)(1). (People v. Ziltz (1983), 98 Ill. 2d 38, 42-43.) As stated in People v. Ziltz, when the State has proved that defendant operated a vehicle and his blood-alcohol concentration was over .10%, the statutory violations have been proved. (Ziltz, 98 Ill. 2d at 43.) On the other hand, the State need not prove defendant drove with a blood-alcohol concentration of .10 or more to prove that defendant drove under the influence of alcohol. (See People v. Foley (1987), 152 Ill. App. 3d 354, 357.) Thus, the verdicts are not legally inconsistent; the guilty verdict is not premised on the nonexistence of an element in the not guilty verdict. Finally, we note that the jury’s decision not to convict on the driving under the influence charge in spite of the breath-test result of .18 could have been due to one of many factors, including compromise or an exercise of leniency, but this does not render the verdicts legally inconsistent. See Foley, 152 Ill. App. 3d at 357; People v. Munday (1985), 134 Ill. App. 3d 971, 975.

Defendant next contends the State failed to lay a proper foundation for admission of the result of the breath test. In People v. Clark (1989), 178 Ill. App. 3d 848, 855, this court noted the foundational requirements recently set out in People v. Orth (1988), 124 Ill. 2d 326, which include the following:

“(1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the tests was certified by the Department of Public Health, (3) evidence that the machine used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutes prior to the test and, during this period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that the results appearing on the ‘printout’ sheet can be identified as the tests given to the motorist.” (Orth, 124 Ill. 2d at 340.)

Along with Orth, defendant cites People v. Enrich (1986), 113 Ill. 2d 343, contending that it holds that, to lay a proper foundation, the State must prove all the Department of Public Health’s regulations as set out in sections 510.10 to 510.100 of the Illinois Administrative Code (77 Ill. Adm. Code, §§510.10 through 510.100 (1985)). Defendant then proceeds to argue that the State failed to prove compliance with several of the regulations, including: (1) that the breath instrument was listed in the qualified products list of evidential breath measuring devices prepared by the National Highway Traffic Safety Administration of the United States Department of Transportation (77 Ill. Adm. Code §510.40(c) (1985)); (2) that defendant did not smoke for 20 minutes before taking the test (77 Ill. Adm. Code §510.60(a) (1985)); (3) that the test was performed according to the operational procedures as recommended by the manufacturer and approved by the Department (77 Ill. Adm. Code §510.60(d) (1985)); (4) that the operating procedures approved by the Department were posted at the instrument when defendant took the test (77 Ill. Adm. Code §510.60(d) (1985)); (5) that the breath-test operator’s training consisted of a curriculum approved by the Department (77 Ill. Adm. Code §510.70(a)(4) (1985)); (6) that the operator passed the standard written examination provided, by the Department (77 Ill. Adm. Code §510.70(b) (1985)); (7) that the operator passed a practical proficiency examination on the Breathalyzer 2000 (77 Ill. Adm. Code §510.70(b) (1985)); and (8) that the breath instrument was certified before it was initially placed into operation or after having been repaired (77 Ill. Adm. Code §510.100(b) (1985)).

We do not agree that the State must prove compliance with every Department regulation regarding breath-alcohol testing from sections 510.10 to 510.100 of title 77 of the Administrative Code (77 Ill. Adm. Code §§510.10 through 510.100 (1985)). The case cited by defendant, People v. Emrich, does not support this position. In Emrich, the court reiterated the language in section 11 — 501.2(a) which provides in relevant part:

“1. Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Public Health in consultation with the Department of State Police by an individual possessing a valid permit issued by that Department for this purpose.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.2.)

Emrich determined that a blood test was inadmissible against a defendant charged with driving under the influence because the State failed to follow a Department standard for blood tests that required blood tubes used in testing to contain an anticoagulant/preservative. (Emrich, 113 Ill. 2d at 351-52.) Thus, in Emrich the court held that one standard promulgated by the Department was not followed, and this violated section 11 — 501.2 (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501.2). We do not believe this holding can be read to state that a proper foundation for blood or breath tests shall include proof of compliance with every regulation pertaining to testing in the Administrative Code. Section 11 — 501.2 does not state that this is required.

We believe Orth sets out all the elements required to lay a proper foundation, and we do not find that Orth requires proof of all the regulations on breath testing in the Administrative Code. In stating what was required to lay a proper foundation, Orth could have, if that was the court’s intent, specifically required proof of all the regulations set out in the Administrative Code; however, it did not. Instead, Orth listed five factors. As we shall explain, proof of these five factors does not require proof of all the regulations regarding breath testing. Furthermore, we shall explain why we find the Orth factors were met in this case.

The first factor mentioned in Orth states that a foundation shall include evidence that the tests were performed according to the uniform standard adopted by the Department of Public Health. There are two possible interpretations to this factor. One is that it refers to the Department’s regulations on operational standards (77 111. Adm. Code §510.60 (1985)), entitled “Standards for the Operation of Approved Breath Analysis Instruments,” which requires the following:

“(a) Continuous observation of the subject for at least twenty (20) minutes prior to collection of the breath specimen, during which period the subject must not have ingested alcohol, food, drink, regurgitated, vomited or smoked.
(b) A breath test shall consist of only one (1) breath analysis.
(c) Before a breath analysis, a room-air analysis must be conducted, the results of which must be less than 0.01% reading.
(d) Each test shall be performed according to an operational procedure approved by the Department which shall be based upon the manufacturer’s recommended testing procedure.” (77 Adm. Code §510.60 (1985).)

The other possible interpretation is that Orth was referring only to the last requirement stated above, section 510.60(d), which requires that the test be performed according to a procedure approved by the Department based on the manufacturer’s recommended procedure. We base this interpretation on the fact that Orth mentioned one of the factors listed above, section 510.60(a), the 20-minute observation period, as a separate factor. Since we believe the court did not intend to be redundant, we find the first factor in Orth only refers to section 510.60(d). Thus, the first factor under Orth requires proof that the test was performed according to an operational procedure approved by the Department and based upon the manufacturer’s recommended testing procedure. We note that in Clark this court held that where there was proof that the operator had followed a checklist that he had used for 16 years, but he did not know whether the checklist had been devised by the city or by the Department, and he did not testify that it was based on the manufacturer’s recommended testing procedure, the test result was nonetheless admissible. (Clark, 178 Ill. App. 3d at 854.) By our opinion today, we do not intend to overrule Clark. We continue to recognize that, under some circumstances, as in Clark, where there was evidence that the test was administered according to the Department’s procedure, and there was no evidence that the procedure followed was contrary to the recommended procedures of the Department or the manufacturer, the failure to offer proof that the procedure was according to the manufacturer’s recommended procedure may not necessarily require exclusion of the breath test result. See Clark, 178 Ill. App. 3d at 854.

In the case at bar, we find the State offered sufficient proof to meet the first factor. Officer Wanderer testified that, in administering the test, he followed a checklist used by the police department that was in compliance with the Department of Public Health. Two checklists were admitted into evidence, an operational checklist and an arresting officer’s checklist. The operational checklist consists of six steps that are all checked off in the appropriate space to indicate that the step was followed. The same is true of the arresting officer’s checklist. The arresting officer’s checklist states, among other things, that the test was performed according to the Department of Public Health’s/manufacturer’s recommended testing procedures. It also states that the instrument had been certified within 45 days, that the motorist was observed for 20 minutes prior to testing and did not ingest anything, did not regurgitate, vomit, smoke or put anything in his mouth, that a room air analysis resulted in a reading less than 0.01%, and that one complete test was given. We believe the officer’s testimony and the checklists provide sufficient proof that the test was performed according to the standards adopted by the Department of Public Health based on the manufacturer’s recommended procedures.

The second Orth factor requires evidence that the operator of the instrument is certified by the Department of Public Health. This factor is self-explanatory. Contrary to defendant’s contention, we do not believe it requires the State to prove all the Department regulations in regard to licensing of an operator set forth in section 510.70 of the Administrative Code (77 Ill. Adm. Code §510.70 (1985)). Proof of certification, unless there is evidence to show that the certification is not valid, is sufficient. In this case, the officer testified that he had been certified for 16 years and was presently certified when he administered the test. The officer’s testimony is sufficient proof of his certification.

The third factor stated under Orth requires the State to prove three things: that the instrument used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly. Concerning the first requirement, section 510.40(b) lists several machines which have been approved by the Department (77 Ill. Adm. Code §510.40(b) (1985)). We believe the State can satisfy proof of this requirement with testimony that the machine is one listed in section 510.40(b). In this case, the court took judicial notice of the Department’s regulations. The evidence showed that the instrument in this case was a Smith and Wesson Breathalyzer 2000. The Breathalyzer model 2000 is listed as one approved by the Department. (77 Ill. Adm. Code §510.40(b) (1985).) Thus, where the court took judicial notice of the regulations, there was sufficient proof that the instrument was approved by the Department.

The State must also show that the machine was regularly tested for accuracy. Section 510.100 explains that an instrument must be accurate within ± 0.01% W/V (weight of alcohol in the volume of breath) to be certified. (77 Ill. Adm. Code §510.100 (1985).) It also explains the procedure an inspector must take to inspect an instrument. We do not believe, however, that the State must prove these factors to lay a foundation. Orth stated only that the State must show that the machine was tested regularly for accuracy and was working properly. We find the State need show only that the instrument was inspected and certified within the time prescribed in section 510.100(a), which states that the machine must be tested at least once a month at intervals not to exceed 45 days. (77 Ill. Adm. Code §510.100(a) (1985).) As for the third requirement within this third factor, that the machine was working properly, we believe the State must show that it was certified within 45 days and that the machine did not exhibit any malfunctions at the time of the test.

The second and third elements of the third factor were met in this case where the logbook entries and decals indicated that the machine had been inspected within 45 days of the test date, and where Officer Wanderer testified that the machine had purged itself and was working properly.

The fourth Orth factor requires proof that the motorist was observed for 20 minutes prior to testing and did not smoke, regurgitate, or drink during this period. The State must show that defendant did not ingest anything during the 20-minute period or regurgitate in any manner during this time. This factor was met in this case by Officer Wanderer’s testimony that defendant put nothing in his mouth and did not belch, vomit, or regurgitate during the 20-minute period.

The fifth factor mentioned in Orth requires evidence that the results on the printout sheet can be identified as the test given defendant. This also is self-explanatory. We find Officer Wanderer’s testimony and the printout sheet from the breathalyzer, which included defendant’s name and the test result, sufficient proof of this factor.

In summary, the State has offered sufficient proof of the five factors set out in Orth to lay a foundation for a breath-test result; thus, we conclude that the court properly allowed admission of the defendant’s breath test result.

Defendant’s final contention is that he was not proved guilty beyond a reasonable doubt. An appellate court will not reverse a defendant’s conviction unless it is concluded that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Defendant contends the testimony of his expert witness, who testified that a breath test cannot give an accurate determination of the defendant’s blood-alcohol concentration at the time defendant was driving an hour earlier, establishes reasonable doubt of defendant’s guilt. We disagree.

In People v. Newman (1987), 163 Ill. App. 3d 865, the court addressed this argument in a case with very similar circumstances. In Newman, the jury convicted defendant of driving with an alcohol concentration of .10 or more but acquitted defendant of driving under the influence of alcohol. In response to defendant’s challenge that it was impossible to determine defendant’s blood-alcohol concentration at the time he was stopped from where he took a breath test 30 minutes later, the court held that, despite the jury’s acquittal on driving under the influence of alcohol, evidence of defendant’s intoxication at the time of his arrest was relevant to the charge that he had an alcohol concentration of .10 or greater at that time. (Newman, 163 Ill. App. 3d at 868-69.) The court concluded that evidence that defendant drove erratically, had an odor of alcohol and glassy eyes, failed various field sobriety tests, and admitted drinking four alcoholic beverages on an empty stomach was sufficient to prove defendant had a blood-alcohol concentration of .10 at the time of arrest. (Newman, 163 Ill. App. 3d at 868-69.) Likewise, in this case we find evidence that defendant’s car was facing south in a northbound lane of traffic, that he had an odor of alcoholic beverage, slurred speech, and glassy eyes, and that he admitted drinking five vodka tonics during the evening was sufficient to prove defendant had a blood-alcohol concentration of .10 or more at the time he was stopped by the officer.

Finally, we are not persuaded that the jury could not have found defendant guilty because defendant’s expert testified that the breath test was unreliable where, among other things, the operator did not take two samples of the air and two samples of the subject. A similar type of challenge was raised in People v. Gustafson (1990), 194 Ill. App. 3d 910, 922, where we recently stated that we would not substitute our judgment for that of the fact finder, which apparently rejected the scientific testimony presented by defendant.

The judgment of the circuit court is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. WILLIAM WALLACE, Petitioner-Appellant.
    Second District
    No. 2-88-1086
    Opinion filed August 23, 1990.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, William Wallace, appeals from an order of the circuit court of Lake County dismissing his amended petition for post-conviction relief. On appeal, defendant argues that this order should be reversed because he received ineffective assistance of counsel during the post-conviction proceedings. We affirm.

In October 1984, defendant was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14). He was originally sentenced to a 20-year term of imprisonment. This court affirmed defendant’s conviction on direct appeal but remanded the cause for resentencing. (See People v. Wallace (1986), 145 Ill. App. 3d 247.) Upon remand, the trial court sentenced him to a 12-year term of imprisonment, and this court affirmed the sentence on appeal. See People v. Wallace (1988), 170 Ill. App. 3d 329.

On October 4, 1985, while his initial appeal was pending, defendant filed a petition for post-conviction relief. Defendant alleged in the petition that, prior to his trial, Randall Stewart, the assistant State’s Attorney who prosecuted the case, agreed to have the charges dismissed if defendant passed a polygraph examination and the complaining witness either refused to take one or failed one. The petition further alleged that defendant passed a polygraph test but the complaining witness never took such a test.

The trial court determined that defendant’s petition was not frivolous and appointed counsel to represent him. At the July 31, 1986, hearing on the petition, defendant testified that his trial attorney, Joseph Moscov, told him that the prosecuting attorney had agreed to have the charges dismissed if defendant passed a polygraph examination and the complaining witness either failed one or refused to take one. Randall Stewart testified that he never entered into such an agreement with Moscov. Moscov testified that Stewart had stated he would give strong consideration to having the charges dismissed under such circumstances but had not actually promised to do so.

The trial court denied the post-conviction petition, and defendant appealed. The court reversed and remanded on the basis of post-conviction counsel’s failure to comply with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)), which requires a showing on the record, by certificate or otherwise, that post-conviction counsel has consulted with petitioner, has examined the record of the proceedings at trial, and has made any necessary amendments to the petition. (People v. Wallace (1988), 164 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23).) We further stated, however, that the issue litigated at the post-conviction hearing should not be relitigated upon remand.

The trial court appointed Alex Rafferty, a private attorney, as defendant’s post-conviction counsel upon remand. Rafferty filed an amended post-conviction petition which alleged that defendant’s trial counsel provided ineffective assistance in three respects. The first such allegation was that the prosecuting attorney methodically eliminated all black individuals from the jury in violation of defendant’s sixth amendment right to trial by an impartial jury, but trial counsel failed to call this to the court’s attention. The second allegation was that trial counsel failed to bring to the jury’s attention “the discrepancy between the testimony of the complaining witness and the scientific reports with respect to the presence of semen.” The third allegation was that trial counsel “misrepresented the facts of his negotiations with the prosecuting attorney.” Rafferty filed a certificate of compliance with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)) along with the amended petition.

At an August 26, 1988, status hearing on the petition, Rafferty told the trial judge that the court had to make an initial determination as to whether the amended petition was frivolous. When questioned about the lack of affidavits or supporting documentation filed with the amended petition, Rafferty stated that defendant told him there was a medical or laboratory report with regard to the second issue raised, but Rafferty had been unable to obtain a copy from defendant’s trial counsel. Rafferty then asked the State to provide him with copies of any such scientific reports. When the trial judge asked if he would need to see such reports, Rafferty stated it would not be necessary because the first issue raised was sufficient to sustain the amended petition.

With regard to the first issue, the trial judge stated that it would be impossible to determine from the record which members of the jury venire were black. Rafferty agreed but stated that defendant had taken notes concerning the race of the venire members. No affidavits or supporting documents were ever presented to the trial court, however, concerning any of the issues raised in the amended post-conviction petition.

The trial court issued an order on October 7, 1988, dismissing the amended petition. The court stated that the amended petition was patently without merit but only addressed the first issue raised therein. At a subsequent hearing, Rafferty did not advise the court of its failure to address the other two issues but, instead, merely asked that a notice of appeal be filed and that the Appellate Defender be appointed to represent defendant.

Defendant now contends that he received ineffective assistance of post-conviction counsel for the following reasons: (1) Rafferty incorrectly advised the trial judge that an initial determination had to be made as to whether the amended petition was frivolous; (2) he failed to advise the trial court that, in dismissing the amended petition, it apparently failed to consider two of the three issues presented therein; and (3) he failed to file any supporting documents or affidavits with the amended petition. In order to establish ineffective assistance of counsel, a defendant must demonstrate that his attorney’s performance “fell below an objective standard of reasonableness” (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525) and a reasonable probability exists that, were it not for counsel’s errors, the result of the proceeding would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d at 525.) A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” (466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The Strickland test has been applied to determine whether post-conviction counsel was ineffective. See People v. Rogers (1986), 147 Ill. App. 3d 1, 3-4.

The State concedes that Rafferty was incorrect when he advised the trial court that it had to make an initial determination as to whether the amended post-conviction petition was frivolous. The proceedings on the amended petition were a continuation of the proceedings on defendant’s original post-conviction petition, which was filed on October 4, 1985. A post-conviction petition may not be dismissed as frivolous pursuant to section 122 — 2.1 of the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1) unless this is done within 30 days of the filing and docketing of the petition. (People v. Porter (1988), 122 Ill. 2d 64, 85.) In the case at bar, the trial court determined that defendant’s original post-conviction petition was not frivolous and appointed counsel to represent him pursuant to section 122 — 2.1(a)(1) of the Act (Ill. Rev. Stat. 1989, ch. 38, par. 122— 2.1(a)(1)). In such circumstances, appointed counsel is expected to consult with the petitioner, review the trial record, and make any necessary amendments to the petition. (107 Ill. 2d R. 651(c).) Section 122— 2.1 does not provide trial courts with any authority to dismiss such amended petitions as “frivolous” or “patently without merit.” Rafferty was clearly mistaken when he advised the trial court that it was necessary to make an initial determination pursuant to section 122— 2.1 as to whether the amended petition was frivolous when nearly three years had passed since defendant’s original post-conviction petition was filed.

This does not mean, however, that the amended petition was not subject to dismissal. Even if the trial court initially determines a petition to be nonfrivolous, section 122 — 5 of the Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 5) permits the State to file a motion to dismiss the petition, and the trial court may grant such relief (see, e.g., People v. Silagy (1987), 116 Ill. 2d 357, 373; People v. Saunders (1989), 187 Ill. App. 3d 734, 738-39). In order to prevail on a post-conviction petition, defendant must establish a substantial deprivation of his or her rights under the United States Constitution or the Illinois Constitution. (People v. Caballero (1989), 126 Ill. 2d 248, 258-59.) The trial court may dismiss a post-conviction petition without an evidentiary hearing unless the allegations of the petition, together with accompanying affidavits or the trial record, make a substantial showing that defendant’s constitutional rights have been violated. (Caballero, 126 Ill. 2d at 259; Saunders, 187 Ill. App. 3d at 738-39.) Since defendant’s amended petition, together with the trial record, clearly fails to make such a showing, we conclude it would have been dismissed even if the trial court had followed the correct procedures under the Act, and defendant therefore was not prejudiced by his attorney’s error in advising the trial court to make an initial ruling as to whether the petition was frivolous.

The first ground for relief urged by defendant in the amended petition was that the prosecutor methodically eliminated all black members from the jury venire in violation of his sixth amendment right to trial by an impartial jury, but defendant’s attorney failed to bring this to the trial court’s attention. As the State points out, however, the United States Supreme Court has recently held that a prosecutor’s use of peremptory challenges to eliminate black potential jurors does not violate the sixth amendment right to trial by an impartial jury. (Holland v. Illinois (1990), 493 U.S. 474, 478-83, 107 L. Ed. 2d 905, 915-18, 110 S. Ct. 803, 806-09.) Defendant could not have been prejudiced by his trial attorney’s failure to raise such a claim when he could not have prevailed.

The amended petition also alleged that defendant’s trial attorney failed to call to the jury’s attention “the discrepancy between the testimony of the complaining witness and the scientific reports with respect to the presence of semen.” There were no supporting affidavits filed with the amended petition, and the record does not support this allegation. The parties stipulated at trial that semen was found on the victim’s bikini bottom after she was allegedly attacked and that a vaginal swab taken from her immediately afterward contained spermatozoa cells. Scientific tests revealed that the semen and sperm cells were from a male with blood type “O,” secreter status. Defendant and the victim’s husband both fit within this classification. The stipulation referred to a statement from the victim that she had sexual intercourse with her husband the day before the alleged attack. The physician who took the vaginal swab testified that the only conclusion that could be drawn from the testing was that the victim had engaged in sexual intercourse during the preceding 24 hours.

The only possible discrepancy we can discern from the record between the victim’s testimony and the scientific reports with respect to the presence of semen involves the victim’s testimony that defendant ripped off her bikini bottom and then had sexual intercourse with her. This testimony might seem to conflict with the stipulation that semen was present on the bikini bottom when it was tested. However, it is not clear from the victim’s testimony where the bottom ended up after it was ripped off by the defendant. If defendant merely ripped the bottom away from her vaginal area so that he could have intercourse, but it was still around the victim’s legs, it is conceivable he could have ejaculated onto the bottom. It is also quite possible that the victim put the bikini bottom back on after the attack, and the semen could have gotten on the bottom that way. Since this possible discrepancy is easily explainable, bringing it to the jury’s attention at trial would not have changed the result. Based upon the record, defendant could not have prevailed on this allegation.

The final allegation in the amended petition is that defendant’s attorney misrepresented facts concerning his negotiations with the prosecuting attorney. The only such negotiations mentioned in the record were the discussions between defendant’s attorney, Moscov, and the prosecutor, Stewart, concerning polygraph examinations. At the hearing on his initial post-conviction petition, defendant testified that Moscov told him prior to trial that the prosecuting attorney had agreed to have the charges dismissed if defendant passed a polygraph examination relating to the charges and the complaining witness either failed one or refused to take one. Moscov testified at the same hearing that Stewart only said he would give strong consideration to having the charges dismissed under such circumstances. Therefore, there is support in the record for the allegation in the amended petition that Moscov made misrepresentations to defendant regarding the status of his negotiations with the prosecutor.

Even if such misrepresentations were made, however, it is inconceivable that they could have affected the result at trial. While the alleged misrepresentations may have caused defendant to take two unnecessary polygraph examinations, the results of such tests are not even admissible at trial. (People v. Baynes (1981), 88 Ill. 2d 225, 244.) Therefore, defendant could not have prevailed on this allegation. Since the three claims raised in the amended post-conviction petition could not have withstood a motion to dismiss, defendant could not have been prejudiced by Rafferty’s mistake in advising the trial court to make an initial determination as to whether the amended petition was frivolous. For the same reason, the failure of Rafferty to seek a specific ruling concerning the last two allegations of the amended petition could not have prejudiced defendant.

Defendant also contends that Rafferty provided ineffective assistance of counsel because he failed to file affidavits and supporting documentation with the amended post-conviction petition. With regard to the first issue raised in the amended petition, trial counsel’s failure to raise the prosecutor’s exercise of peremptory challenges to strike black members of the jury venire and argue that this was a sixth amendment violation, the Holland decision foreclosed any possibility of success on this issue regardless of the amount of supporting documentation. We shall therefore only consider Rafferty’s failure to provide supporting documentation for the other two issues raised in the amended petition.

In People v. Orange (1988), 121 Ill. 2d 364, defendant asserted that his attorney was ineffective because no mitigating evidence was presented during the sentencing hearing. Our supreme court held that defendant failed to establish ineffective assistance of counsel when the record contained no indication as to what mitigating evidence defense counsel could have introduced or argued and thereby failed to show the attorney failed to present evidence of which he was aware. (Orange, 121 Ill. 2d at 389-90.) Similarly, in the case at bar, the record contains no indication as to what evidence Rafferty could have presented in support of the amended petition. We emphasize that a defendant alleging ineffective assistance of counsel has the burden of showing prejudice from counsel’s deficient performance and the prejudice allegedly suffered by defendant cannot be based upon mere speculation or conjecture. (People v. Borges (1984), 127 Ill. App. 3d 597, 602.) Defendant has not established that Rafferty failed to present evidence or supporting documentation of which he was aware or should have been aware when he filed the amended petition. His final allegation of ineffective assistance must therefore fail.

The case at bar is distinguishable from People v. Allen (1986), 151 Ill. App. 3d 391. In Allen, defendant’s post-conviction petition alleged that his trial attorney incorrectly advised him that, if he testified, the prosecuting attorney could impeach his credibility with evidence of his juvenile adjudications. (Allen, 151 Ill. App. 3d at 394.) The trial court dismissed the petition. (151 Ill. App. 3d at 394.) On appeal, this court held that post-conviction counsel was ineffective because it is obvious that had counsel amended the petition by having defendant swear he would have testified were it not for his trial attorney’s incorrect advice and swear to what he would have testified, defendant would have been entitled to an evidentiary hearing. (151 Ill. App. 3d at 394.) In the instant case, it would be sheer speculation to conclude that Rafferty could have provided supporting documentation with the amended petition that would have entitled defendant to an evidentiary hearing.

For the above reasons, the order of the circuit court of Lake County dismissing defendant’s amended petition for post-conviction relief is affirmed.

Affirmed.

UNVERZAGT, P.J., and McLAREN, J., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARY G. BUGBEE, Defendant-Appellee.
    Second District
    No. 2-89-0758
    Opinion filed August 23, 1990.

      Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Gary G. Bugbee, was charged with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 501(a)), driving while his driver’s license was revoked (Ill. Rev. Stat. 1987, ch. 95%, par. 6 — 303) and improper lane usage (Ill. Rev. Stat. 1987, ch. 95%, par. 11— 709). Pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), the State appeals the trial court’s order granting defendant’s oral motion to suppress evidence. We reverse and remand.

The record provides the following facts. On behalf of the State, Deputy Tom Lehman testified that on July 20, 1987, at 4 a.m., he was on patrol and driving westbound on Route 30, west of U.S. 251, when he observed headlights coming at him in his own lane. Lehman pulled off of the road, and the other car drove eastbound past Lehman while in the westbound lane. Lehman turned his patrol car around and pursued the other car. In approximately two miles he caught up with the other car and paced it at a speed in excess of 80 miles per hour.

Lehman then activated his lights and siren, and the other vehicle stopped approximately one-half mile farther down the road. After the other vehicle pulled over to the shoulder of the road, Lehman approached it and asked the driver, whom he identified as defendant, for his identification and driver’s license.

Lehman testified that upon his first contact with defendant, he smelled a strong odor of alcohol and observed defendant’s eyes to be very bloodshot and watery. Defendant fumbled through his wallet and told Lehman that his driver’s license had been revoked. Lehman noticed that defendant had a hard time speaking and that his speech was very slurred, mumbled and thick-tongued. Lehman asked defendant’s name and birthdate in order to confirm the revocation of defendant’s license and, at that point, placed defendant under arrest for driving with a revoked license. Lehman testified that he then advised defendant, “since I smelled the strong odor of alcohol on his breath and person I would have to give him some field sobriety tests to determine if he was fit in my opinion to drive a motor vehicle.”

At this point in the trial, defense counsel asked to approach the bench and, in a side-bar conference, stated that since defendant was under arrest and had not been advised of his Miranda rights, anything he said thereafter was inadmissible.

Out of the jury’s presence, defense counsel requested that the trial court suppress any statements defendant made following his arrest until such time as he was read his rights. Deputy Lehman resumed the stand for purposes of an offer of proof and testified that he did not read defendant his Miranda rights until just before questioning him on an alcohol influence report while at the police station.

Defense counsel renewed his request for suppression of the evidence, and the trial court found that, since defendant was under arrest, any statements made by him thereafter, without Miranda warnings, would be suppressed. The court further ruled that the results of the field sobriety tests would not be suppressed as they were nontestimonial in nature. Following some additional argument, the trial court reiterated its ruling and clarified it by characterizing defendant’s recitation of the alphabet as testimonial evidence and thus included in the suppression order.

The State’s Attorney indicated that the State would proceed with the trial; however, before the trial could resume, defense counsel posed the question of whether the suppression order included defendant’s refusal to take a breathalyzer test. The trial court found that the deputy’s reading of the warning to motorists constituted custodial interrogation and that defendant’s response thereto was testimonial in nature; thus, defendant’s refusal to take the breathalyzer test would be suppressed. At this point, the State’s Attorney asked that the question be certified for purposes of appeal, and the trial court declared a mistrial. The State filed a certificate of impairment and a timely notice of appeal.

The issues presented in this appeal are whether the trial court erred in suppressing evidence of: (1) defendant’s refusal to take a breath test; and (2) defendant’s recitation of the alphabet during a field sobriety test.

At the outset, we note that defendant has not submitted an appellee’s brief in this case. We review the State’s appellate contentions in accordance with the holding of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

We first consider the State’s contention that the trial court should have denied defendant’s motion to suppress, which was presented orally at trial over two years after defendant’s arrest, as being untimely. (See People v. Hughes (1989), 181 Ill. App. 3d 300, 303-04.) The State concedes, as it must, that it failed to object to defendant’s motion on this basis at trial. Nevertheless, appellate counsel argues that we should consider the timeliness of defendant’s motion as a matter of plain error, citing People v. Oswald (1982), 106 Ill. App. 3d 645. In Oswald, we observed that the waiver rule applies to the State as well as to defendants. (106 Ill. App. 3d at 649.) Although we agree with the State’s contention that defendant certainly had the opportunity to make such a motion at any time prior to trial, we nevertheless conclude that the State waived any objection it might have had regarding the timeliness of defendant’s motion by failing to make any objection whatsoever on the record.

We next consider whether the trial court’s order suppressing evidence in this case was erroneous. With respect to defendant’s refusal to take a breathalyzer test, both the United States Supreme Court, in South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916, and the Illinois Supreme Court in People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, have conclusively answered the question of whether a motorist’s refusal to submit to a chemical test is an act protected by the constitutional privilege against self-incrimination. Relying in large part on its earlier decision in Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, the Supreme Court in Neville held that the admission into evidence of a motorist’s refusal to submit to a blood-alcohol test did not constitute a fifth amendment violation and thus was not protected by the privilege against self-incrimination. Neville, 459 U.S. at 564, 74 L. Ed. 2d at 759,103 S. Ct. at 923.

In Rolfingsmeyer, the Illinois Supreme Court considered the constitutionality of section 11 — 501.2(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.2(c)), which provided that a motorist’s refusal to submit to a chemical test was admissible in civil and criminal proceedings which were based on acts the motorist allegedly committed while driving under the influence of alcohol and/or drugs. Following the holding of Neville, the court concluded, inter alia, that the statute did not violate a defendant’s privilege against self-incrimination because a motorist’s right to remain silent did not give him a right to refuse a breath test; thus, evidence of a refusal was not constitutionally protected. (Rolfingsmeyer, 101 Ill. 2d at 141-42.) In view of the explicit holdings in Neville and Rolfingsmeyer, the trial court’s order suppressing evidence of defendant’s refusal to submit to a breath-analysis test was clearly erroneous and must be reversed. See also People v. Thomas (1990), 199 Ill. App. 3d 79, 96.

With respect to the order suppressing defendant’s recitation of the alphabet, the law is not so clear. In fact, the Supreme Court has declined to address this issue in two recent decisions. In Pennsylvania v. Bruder (1988), 488 U.S. 9, 102 L. Ed. 2d 172, 109 S. Ct. 205, a police officer stopped the defendant motorist and asked him to perform various field sobriety tests, including recitation of the alphabet. The officer also asked the defendant whether he had been drinking. The defendant failed all of the tests and answered that he had been drinking. The officer then arrested the defendant and gave him his Miranda warnings. The defendant was later convicted of DUI. The Pennsylvania superior court reversed the defendant’s conviction on the ground that the defendant’s statements were testimonial utterances that should have been suppressed since the defendant had not yet been read his rights. The Supreme Court reversed, holding that ordinary traffic stops do not involve custody for purposes of a defendant’s rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. (Bruder, 488 U.S. at 11, 102 L. Ed. 2d at 176-77, 109 S. Ct. at 207.) In a footnote, the Court noted that it did not reach the issue of whether the defendant’s recitation of the alphabet in response to custodial questioning was testimonial and thus inadmissible under Miranda. (Bruder, 488 U.S. at 11 n.3, 102 L. Ed. 2d at 177 n.3, 109 S. Ct. at 207 n.3.) This court reached a similar result in People v. Saturday (1985), 135 Ill. App. 3d 1052, where we held that a police officer administering sobriety tests to a motorist before placing him under arrest did not violate the motorist’s right to privacy or his privilege against self-incrimination. Saturday, 135 Ill. App. 3d at 1055.

More recently, the Supreme Court declined to consider whether a DUI defendant’s counting backward from 10 as a field sobriety test was testimonial and thus protected by the privilege against self-incrimination. (See Pennsylvania v. Muniz (1990), 496 U.S._,_n.17, 110 L. Ed. 2d 528, 553 n.17, 110 S. Ct. 2638, 2651 n.17.) Muniz was arrested for DUI but was not advised of his Miranda rights prior to being videotaped in two interviews at police headquarters. The police asked Muniz numerous “routine booking questions” (his name, address, etc.) as well as the date of his sixth birthday. Muniz was not able to answer the latter question. Police also had Muniz perform several sobriety tests which involved both verbal and physical coordination and asked him to submit to a breath test, which he refused. Muniz was then read his Miranda rights. At trial, the prosecution introduced and the trial court accepted the audio and visual portions of the two taped interviews, and Muniz was subsequently convicted.

The Pennsylvania superior court reversed the conviction, holding that all of Muniz’s verbalizations were testimonial and, thus, the audio portions of the tapes should have been suppressed in their entirety. On review, the Supreme Court held that only Muniz’s response to the “sixth birthday question” should have been suppressed because his other verbalizations were either merely physical evidence (e.g., his slurred speech showed a lack of muscular coordination) or were simply responses to “carefully scripted instructions” which were not “ ‘words or actions’ constituting custodial interrogation.” (Muniz, 496 U.S. at _, 110 L. Ed. 2d at 553, 110 S. Ct. at 2651.) Nevertheless, Justice Brennan, writing for a plurality of the court, indicated in footnote 17 his willingness to conclude that Muniz’s counting or failure to count was testimonial and therefore protected; Justice Brennan, however, found it unnecessary to answer this question. 496 U.S. at_n.17, 110 L. Ed. 2d at 553 n.17, 110 S. Ct. at 2651 n.17.

In a separate opinion, Chief Justice Rehnquist noted that “[t]he need for the use of the human voice does not automatically make an answer testimonial.” (Muniz, 496 U.S. at_, 110 L. Ed. 2d at 555, 110 S. Ct. at 2653 (Rehnquist, C.J., concurring in part and dissenting in part).) Reaching a similar conclusion, the Texas court of appeals has stated:

“[A] recitation of the alphabet and counting backward are not testimonial in nature because these communications are physical evidence of the functioning of appellant’s mental and physical faculties. The performance of these sobriety tests shows the condition of a suspect’s body. Any indication of intoxication comes from a suspect’s demeanor, the manner in which he speaks, and whether he has the mental ability to perform the tests correctly. These communications do not amount to an admission of guilt by appellant nor do they indicate a knowledge of facts which incriminate him or tend to incriminate him.” Chadwick v. State (Tex. App. 1988), 766 S.W.2d 819, 821.

Similar results have been reached by courts in several other jurisdictions. (See State v. Superior Court (Ariz. App. 1987), 154 Ariz. 275, 278, 742 P.2d 286, 289; Oxholm, v. District of Columbia (D.C. App. 1983), 464 A.2d 113, 114; Commonwealth v. Carey (1988), 26 Mass. App. Ct. 339, 340-41, 526 N.E.2d 1329, 1331; People v. Burhans (1988), 166 Mich. App. 758, 762, 421 N.W.2d 285, 288; State v. Medenbach (1980), 48 Or. App. 133, 138, 616 P.2d 543, 545; State v. Meek (S.D. 1989), 444 N.W.2d 48, 50; State v. Haefer (1982), 110 Wis. 2d 381, 386-87, 328 N.W.2d 894, 897.) As the Medenbach court noted, a defendant motorist’s manner of speech and his ability or inability to recite the alphabet correctly were not testimonial in nature. Rather, a motorist’s response to such a test was simply physical evidence “having nothing to do with what the motorist may admit or confess.” (Medenbach, 48 Or. App. at 139, 616 P.2d at 545.) The District of Columbia Appellate Court similarly reasoned that a defendant’s recitation of the alphabet did not reveal the defendant’s personal knowledge but simply tested his physical coordination. (See Oxholm, 464 A.2d at 114.) Likewise, the Arizona Appellate Court concluded that tests in which a motorist must recite the alphabet or count were intended to reveal evidence of the motorist’s physical condition and were not intended to reveal the motorist’s subjective knowledge or thought processes. (State v. Superior Court, 154 Ariz. at 278, 742 P.2d at 289.) The Haefer court determined that the defendant’s utterances disclosed the physical manifestations of the defendant’s intoxication. (110 Wis. 2d at 386-87, 328 N.W.2d at 897.) The Massachusetts Appellate Court summarized this issue as follows:

“Performance of field sobriety tests does not implicate the Fifth Amendment to the Constitution of the United States because it involves no ‘testimonial evidence’ in the sense that phrase is understood. [Citation.] As is the case with fingerprinting, photographing, measuring, or asking a suspect to stand, walk, or talk, a sobriety test requires the suspect to permit himself to be observed; it does not ask the suspect to reveal his mind.” Carey, 26 Mass. App. at 340-41, 526 N.E.2d at 1331.

We concur with the opinions of numerous appellate courts in other jurisdictions that have held that a defendant motorist’s response to a request to recite the alphabet or count does not constitute a testimonial response, even if the motorist is in police custody at the time the response is sought. As Chief Justice Rehnquist noted, the mere use of the human voice does not automatically render a defendant’s answer testimonial. (See Muniz, 496 U.S. at_, 110 L. Ed. 2d at 555, 110 S. Ct. at 2653 (Rehnquist, C.J., concurring in part and dissenting in part).) Whether defendant in this case recited the alphabet correctly would merely provide physical evidence of the functioning of his mental and physical faculties. (See Chadwick, 766 S.W.2d at 821.) It would reveal nothing more than coordination on his part and would not reveal any subjective knowledge or thought processes which might tend to incriminate him.

It is well settled that the privilege against self-incrimination does not preclude the State from compelling a defendant to produce real or physical evidence. (Schmerber, 384 U.S. at 764, 16 L. Ed. 2d at 916, 86 S. Ct. at 1832.) Thus, we conclude that the trial court improperly suppressed as testimonial evidence defendant’s response to Deputy Lehman’s request that he recite the alphabet. Defendant’s response to this inquiry constitutes physical evidence pertaining to the degree of his intoxication at the time he was arrested. The suppression order must be reversed.

In view of the foregoing, the order of the circuit court of Lee County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE WOODWARD

text:
    PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, f/k/a Bankers Life Company, Plaintiff-Appellee, v. INGRID DOHM, Defendant-Appellant.
    Second District
    No. 2-89-0839
    Opinion filed August 23, 1990.
    Ingrid Dohm, of Rockford, appellant pro se.

    Holmstrom & Green, P.C., of Rockford, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Ingrid Dohm (Ingrid), appeals from an order of the circuit court which denied her special appearance and motion to quash service of summons. Ingrid raises one issue on appeal, namely, that the trial court erred in denying same.

On January 22, 1987, plaintiff filed a complaint for foreclosure against numerous defendants, including Mrs. Dohm. Summons were issued by the circuit clerk, and summons were eventually returned. Ingrid alleges that the summons demonstrates that she was not personally served and that the form makes no such indication regarding her. Ingrid -filed no general appearance or order, and, on July 27, 1987, the trial court entered a default order against her. A judgment of foreclosure was entered on June 9, 1988. A sheriff’s sale was conducted on July 26, 1988, and plaintiff was the successful bidder at said sale.

On July 13, 1989, J. Patrick Dohm, Ingrid’s husband and a defendant in the abovementioned foreclosure action, filed, on her behalf, a special and limited appearance and a motion to quash service of summons. On August 10, 1989, the trial court ordered J. Patrick Dohm’s special and limited appearance on behalf of Ingrid stricken. On the same day, Ingrid, in her own person, filed a special and limited appearance and motion to quash service of summons and also a motion to vacate the order of default, vacate the decree of foreclosure, and to set aside the sheriff’s sale.

On August 17, 1989, the trial court denied Ingrid’s motion to quash service of summons and struck her special and limited appearance. On the same date, the court below denied her motion to stay her eviction from the subject premises. This appeal followed.

Ingrid contends that the return of the sheriff did not declare that a copy of the summons was left with her; that the return did not describe her by sex, race, and approximate age, or the street address at which she was allegedly served with a summons; and that the date and time of service were not stated in said return.

A review of the summons indicates that it was issued by the clerk of the trial court on January 22, 1987. On the sheriff’s return portion of the summons, the following language is found:

“I certify that I served this summons as follows:
(a) — (Individual defendants-personal):
(The officer or other person making service shall (a) identify as to sex, race, and approximate age of the defendant with whom he left summons, and (b) state the place where (whenever possible in terms of an exact street address) and the date and time of the day when the summons was left with the defendant.)”

On the lines following this paragraph, the names of Ingrid Dohm and Lennart Forsgren (another defendant) are printed in ink. Next to these names, there was no language identifying them either by sex, age, or race, nor is there a street address at which the summons was served or the date and the time of said summons.

The form’s paragraph (b) for individual defendant’s abode service requires the identity of the person upon whom the summons is served as to approximate age, sex, and race, as well as the street address where service was had along with the date and time. In the lines following this paragraph, the names J. Patrick Dohm and Ingrid Dohm are printed in ink with the date of 1-29-87.

Under paragraph (b) there is a subsection in which the server is to verify that a copy of the complaint was sent to each individual defendant at his/her mailing address, along with the date of mailing. This section is blank.

Under section (c), which involves service upon corporations through their registered agents, the server listed three corporate entities, the registered agent served, and the date of service.

In the upper left-hand corner of the return page is the imprint of a rubber stamp (Imprint A) which states the following:

“Sex F F F M
Race W W W W
Age (Approx.) 38 48 48 60
Address 2303 Chamber Street
Time 2:08 p.m.
Date of Service: 1-28-87.”

In the lower left-hand comer of the return, there is an identical imprint of a rubber stamp (Imprint B) which states as follows:

“Sex F
Race W
Age (approx.) 47
Address: 4620 E. State St.
Time: 2:47 p.m.
Date of Service: 1-22-87.”

There is no indication which, if any, column relates to Ingrid. Any attempt to discern who has been served and at what location leads to further confusion. For example, from the part of the return cited as Imprint B, we glean the following: a 38-year-old white woman, two 48-year-old white women, and a 60-year-old white man were served at 2303 Chamber Street (no city, town, or village listed) on January 22, 1987, at 2:08 p.m. As to who these defendants are, we have no idea. There is no attempt by the process server to link a defendant’s name with his or her description. There are no arrows or other marks tying a defendant with his or her characteristics.

Ingrid argues that the sheriff’s return fails to identify her as to age, race, and sex and that it does not state the address, date, and time of the alleged service. She further maintains that she never made a general appearance, and, therefore, the trial court could only acquire personal jurisdiction by service of process in the manner defined by statute. (State Bank v. Thill (1986), 113 Ill. 2d 294.) She further contends that, because the return is facially invalid, service of process was never effected upon her person.

Plaintiff argues that Ingrid failed to present clear and satisfactory evidence to rebut the presumption of service to the sheriff’s return.

It is well settled that the sheriff’s return is prima facie evidence that process was properly served upon defendant, unless said return is impeached by clear and satisfactory evidence. (Four Lakes Man agement & Development Co. v. Brown (1984), 129 Ill. App. 3d 680.) Moreover, an appellate court is required to indulge every presumption in favor of a sheriff’s return of service of process. (Mitchell v. Tatum (1982), 104 Ill. App. 3d 986.) Ingrid argues that she needed no more proof of the invalidity than it did not identify her by sex, age, race, address, and date and time of service.

We do not agree. Here, Ingrid did not maintain that she had not been served with process, nor did she present any other evidence to corroborate her contention. A sloppy sheriff’s return gives some indication that a party may not have been served, but a party denying service must offer more to rebut the presumption of validity than Ingrid has put forward here. See, e.g., Mitchell v. Tatum (1982), 104 Ill. App. 3d 986; Aetna Casualty & Surety Co. v. Sanders (1973), 15 Ill. App. 3d 573.

Accordingly, we affirm the judgment of the circuit court denying Ingrid’s motion to quash service of summons. In so holding, we do not mean to condone the virtually inscrutable manner in which the instant sheriff’s return was completed.

Affirmed.

UNVERZAGT, P.J., and GEIGER, J., concur.


text:
    JUDITH A. HALEY, Plaintiff, v. KEITH J. POSDAL, Defendant and Third-Party Plaintiff-Appellant (Illinois Farmers Insurance Company, as Subrogee of Judith A. Haley, Plaintiff-Appellant; Tate Haley, Defendant-Appellee and Third-Party Defendant-Appellee).
    Second District
    Nos. 2-89-0906, 2-89-0968 cons.
    Opinion filed August 28, 1990.

      D. Kendall Griffith and Stephen R. Swofford, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Bruce L. Carmen, of counsel), for appellant Illinois Farmers Insurance Company.
    James T. Ferrini and Thomas H. Ryerson, both of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, Carl F. Schroeder, of Carl F. Schroeder, Ltd., of Wheaton, and Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora (Sonia V. Odarczenko and John R. Wienold, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Two appeals arising from the same automobile accident have been consolidated for review by this court. Illinois Farmers Insurance Company (Farmers) appeals from a trial court order dismissing its subrogation action against Tate Haley (Tate). Keith Posdal (Posdal) appeals from a trial court order dismissing his claim for contribution from Tate. A review of the parties and the pleadings is necessary for a complete understanding of the issues involved in this appeal.

On November 7, 1986, Judith Haley (Haley) and Judith Allport (Allport) were passengers in an automobile driven by Haley’s son, Tate, when it was involved in a collision with an automobile driven by Posdal. The following actions emanated from that collision:

1. Haley and Allport v. Posdal (for personal injuries);
2. Posdal v. Tate (for personal injuries, property damage);
3. Haley v. Tate (for personal injuries); and
4. Farmers, as subrogee of Haley v. Posdal and Tate (subrogation action).

In the Haley suit, Posdal was represented by the law firm of Clausen, Miller, Gorman, Caffrey & Witous, P.C. (Clausen Miller), which also filed a contribution action on Posdal’s behalf against Tate in the Haley suit. In Posdal’s action against Tate, Posdal was represented by attorney Richard Levin (Levin).

APPEAL NO. 2-89-0906

Haley had a policy of insurance with Farmers which covered her for injuries caused by underinsured motorists. That policy provided in pertinent part as follows:

“In the event of any payment under this policy, we are entitled to all the rights of recovery of the person to whom payment was made against another. That person must sign and deliver to us any legal papers relating to that recovery, do whatever else is necessary to help us exercise those rights and do nothing after loss to prejudice our rights. When a person has been paid damages [emphasis in original] by us under this policy and also recovers from another, the amount recovered from the other shall be held by that person in trust for us and reimbursed to us to the extent of our payment.”

Haley made an underinsured motorist claim against Farmers because Posdal had only $15,000 in liability insurance. Farmers initially paid Haley $15,000 and then was granted leave to intervene as a party plaintiff in the suit filed by Haley against Posdal. Farmers sued in subrogation to recover the $15,000 paid to Haley. Count I of the suit sought recovery from Posdal, and count II sought recovery from Tate.

Tate moved to dismiss count II of Farmer’s subrogation action, arguing that Farmers could only subrogate against the underinsured motorist, Posdal. Farmers relied on the above-cited language in Haley’s policy. On September 27, 1988, the trial court granted Tate’s motion and dismissed count II of the subrogation action with prejudice.

On October 7, 1988, Haley filed her own action for personal injuries against her son, Tate. On October 13, 1988, upon receiving the additional sum of $125,000 from Farmers, Haley released her claim against Farmers. The release stated in pertinent part as follows:

“The undersigned hereby assigns, transfers and sets over to [Farmers] any and all claim or causes of action for bodily injury which the undersigned now has, or may hereafter have, to recover against any person or persons as the result of said accident and loss above stated to the extent of the payment made above; the undersigned agrees that [Farmers] may enforce the same in such manner as shall be necessary or appropriate for the use and benefit of [Farmers], either in its own name or in the name of the undersigned.”

After the trial court denied its motion to reconsider the dismissal of its subrogation claim against Tate, Farmers filed an amended complaint against Posdal (count I) and Tate (count II), alleging a total payment to Haley of $140,000. Tate’s motion to dismiss was again granted with prejudice. Haley then moved to voluntarily dismiss her suits against Posdal and Tate, and Farmers moved to dismiss the remaining count of its subrogation action which was against Posdal. Both motions were granted, and notices of appeal were filed. After it was discovered that Allport’s suit against Posdal, which had been set-tied, had not been dismissed, an order was entered dismissing Allport’s lawsuit. New notices of appeal were filed.

On appeal, Farmers contends that the trial court erred in dismissing the subrogation action as to Tate. Farmers argues that under policy provisions dealing with underinsured motorist coverage, it may recover the $140,000 paid out to Haley from Tate even though he was not the underinsured motorist. Tate argues that the release signed by Haley was in actuality an assignment of her cause of action for personal injuries, which, in fact, are nonassignable under Illinois law, rather than a subrogation action as Farmers maintains.

In Remsen v. Midway Liquors, Inc. (1961), 30 Ill. App. 2d 132, 143-44, the court noted the differences between “subrogation” and “assignment,” stating:

“Subrogation presupposes an actual payment and satisfaction of the debt or claim to which the party is subrogated, although the remedy is kept alive in equity for the benefit of the one who made the payment under circumstances entitling him to contribution or indemnity while assignment necessarily contemplates the continued existence of the debt or claim assigned. Subrogation operates only to secure contribution and indemnity, whereas an assignment transfers the whole claim.”

Farmers relies heavily on Remsen. In that case, as a result of a fatal automobile collision with an uninsured motorist, the administrator and the decedent’s widow initiated a dramshop action against Midway Liquors, Inc. (Midway), and Town Hall Tavern (Town). The estate and widow settled with Midway and Town, and Employers Mutual Liberty Insurance Company (Employers) intervened on the basis that it had paid monies to the administrator and the widow under the uninsured motorist provision of the decedent’s insurance policy with Employers and that the releases were signed by the administrator and the widow. The trial court held that Employers was entitled to be reimbursed from the settlement monies. The administrator and the widow appealed.

On review, the court commented:

“Under the uninsured motorists endorsement the insurance company agrees to pay the insured all sums that he shall be legally entitled to recover as damages for bodily injury sustained by accident arising out of the ownership, maintenance and use of an insured automobile.
In the event of payment to any person under the subject endorsement the policy provides by its endorsement conditions entitled ‘Trust Agreement’ that the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any right of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made, and further provides that the person receiving payment shall execute and deliver to the company such instruments as may be appropriate to secure the rights and obligations of such person and the company.” (Emphasis in original.) Remsen, 30 Ill. App. 2d at 142.

The Remsen court concluded that the “trust agreement” was one of subrogation not assignment and was, therefore, not void on that basis. The decision of the trial court was affirmed. Thus, as Farmers is attempting to do here, the insurance company was able to recoup its monies from a party other than the uninsured or, as in the case before us, the underinsured motorist.

We are of the opinion that Remsen is distinguishable from the case at bar. We believe, first, that unlike the “trust agreement” in Remsen, the release executed by Haley in the present case is an assignment of a bodily injury claim and is, therefore, void. (See Remsen, 30 Ill. App. 2d at 144.) “ ‘An advance by insurer of the amount of insurance to insured, under a loan agreement reciting that the amount was received as a loan to be repaid only from such recovery as might be had from a third person, does not constitute an assignment ***.’” (Remsen, 30 Ill. App. 2d at 145, quoting from 46 C.J.S. Insurance §1209(l)(e), at 156 (1946).) Put another way, where the language in the release “assigns” the claim or cause of action to the insurer without the necessity of recovery, an assignment rather than a subrogation exists.

In the case before us, the use of the term “assigns” plus the absence of any recovery by Haley against Tate (due, of course, to the fact that Haley dismissed her suit against Tate) establishes an assignment not a subrogation action. In contrast, in Remsen, the parties received monies from the settlement with the dramshop defendants.

The other cases relied on by Farmers are likewise distinguishable from the case at bar. In Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, the insurance company sought subrogation of monies recovered. In Ackermann v. Prudential Property & Casualty Insurance Co. (1980), 83 Ill. App. 3d 590, again the insurance company was entitled to reimbursement from either the uninsured motorist or the other driver, if a recovery was made.

We conclude that the trial court did not err in granting Tate’s motion to dismiss Farmer’s subrogation action as to him. Concluding as we do, we need not reach Farmer’s argument as to the effect of section 143a — 2(7) of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a — 2(7)) on subrogation actions.

APPEAL NO. 2-89-0968

Posdal, represented by Clausen Miller, had filed a contribution action against Tate in the Haley suit. Posdal had also filed a suit for personal injuries and property damage against Tate in which he was represented by Levin.

Posdal settled his suit for personal injuries and property damage against Tate and executed a “release of all claims” document. The release provided in pertinent part as follows:

“I *** ¿q hereby release, acquit and forever discharge Tate J. Haley and Country Mutual Insurance Company of and from any and all actions, causes of action, claims, demands, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from an accident that occurred on or about the 7th day of November 1986.”

A subsequent provision of the release stated in pertinent part as follows:

“It is mutually understood and agreed that this settlement is the compromise of a doubtful and disputed claim.”

Tate then moved to dismiss Posdal’s contribution action against him on the basis of the release Posdal had executed. In response, Posdal argued that the release did not expressly release the contribution claim and that it was not the intent of the parties to release the contribution claim. Posdal argued further that the language of the release clearly released only those actions arising out of personal injuries and property damage. Finally, Posdal argued that no notice of the proposed settlement was given to Clausen Miller as Posdal’s attorneys on the contribution action. Posdal’s response was supported by his own affidavit and that of Levin, both of which stated that there was no intent to release the contribution action. Following argument, the trial court dismissed Posdal’s action for contribution against Tate, as well as Posdal’s action for personal injuries and property damage against Tate. Posdal timely appeals from the dismissal of his action for contribution.

On appeal, Posdal contends that the trial court erred in dismissing his action for contribution from Tate. Posdal argues that it was not his intention to include the contribution claim within the purview of the release and that the language of the release itself does not encompass the contribution claim. He points out that the release specifically refers to “personal injuries and property damage” as the claims which are being released.

In dismissing the contribution claim, the trial court relied on Rakowski v. Lucente (1984), 104 Ill. 2d 317. In that case, following an automobile accident, Lucente, one of the drivers, executed a general release in favor of Rakowski, the other driver. Rakowski and his two passengers then sued Lucente for personal injuries suffered in the accident. Lucente counterclaimed against Rakowski seeking contribution for the injuries sustained by the passengers. Rakowski moved to dismiss the contribution claim on the basis that it was barred by the general release. In opposition to the motion, Lucente filed an affidavit stating that he did not intend to give up his right to seek contribution from Rakowski. The trial court dismissed the claim for contribution, and the appellate court affirmed.

The supreme court affirmed the dismissal of the contribution claim. The court examined the language of the general release which provided in pertinent part as follows:

“ ‘[T]he undersigned hereby releases and forever discharges Leo Rakowski, his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of actions or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 7th day of Sept., 1981 ***.
* * *
Undersigned hereby declares that the terms of this settlement have been *** voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned ***.’ ” (Emphasis in original.) 104 Ill. 2d at 319-20.

In determining that the contribution action was within the scope of the general release, the court first noted that the language of the release was “comprehensive, precise and unambiguous.” (104 Ill. 2d at 323.) The court further noted that where a written contract is in evidence, the parties’ intentions must be determined from the contract, not what the parties thought. (Rakowski, 104 Ill. 2d at 323, quoting from Saddler v. National Bank (1949), 403 Ill. 218, 228.) The court then stated as follows:

“The claims to be released are described in comprehensive language as ‘any and all claims, demands, damages, actions, causes of action or suits of any kind or nature ***, and particularly on account of all injuries, known and unknown, *** which have resulted or may in the future develop from an accident which occurred.’ There is no basis for Lucente’s argument that the release did not include a specific type of action, that is, his right against Rakowski for contribution, because that action was not expressly enumerated. When employing a release as broad as the one used here, any attempt to list the specific types of action included in the release might have detracted from its broad and general scope.” (104 Ill. 2d at 323.)

Therefore, regardless of what Posdal’s intent was, as evidenced by his affidavit and that of his attorney, Levin, the language of the contract determines whether the release in this case encompassed the contribution claim.

Posdal argues that Rakowski is factually inopposite to the case at bar. He points out that the language of the Posdal release does not release actions or suits “of any kind or nature whatsoever” arising from the accident. Rather, he maintains, it releases only those claims “on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage.” Posdal further points out that the stated purpose of the Posdal release was the “compromise of a doubtful and disputed claim.” According to Posdal, the use of the word “claim” in the singular is indicative of the fact that the separate contribution claim was not a part of this release. Finally, Posdal notes that, unlike the release in Rakowski, the Posdal release makes no representation whatsoever that its express purpose is to preclude forever any further claims.

We see very little difference between the language used in Rakowski and that used in the case before us. Nothing in Rakowski requires that exact same language to be used when drafting a release that will be deemed general enough so as not to require that the claims be specifically identified before they will be considered encompassed by the release. Moreover the language in the Posdal release “release, acquit and forever discharge *** from any and all actions, causes of action, claims *** on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage” clearly indicates that the contribution claim was encompassed by the Posdal release. The contribution action was a “cause of action” which grew out of the personal injuries suffered by Haley in the accident of November 7, 1986. Posdal’s argument as to the use of the singular “claim” is not persuasive since Posdal himself had made “claims,” i.e., for personal injuries and property damage. Finally, we note that although the release in Rakowski “specifically” referred to personal injuries and property damage, this did not put the contribution action beyond the purview of the release.

We have examined the cases relied on by Posdal, namely, Ahn Brothers, Inc. v. Buttitta (1986), 143 Ill. App. 3d 353, Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, and Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, appeal after remand (1987), 158 Ill. App. 3d 639, and determined, in light of the above discussion, that they are either inapplicable or distinguishable from the case at bar.

Posdal also argues that the decision in Rakowski v. Lucente deviates from the supreme court’s prior decision in Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196. In Alsup, the court held that a release does not cover a joint tort-feasor not specifically identified in the release. (101 Ill. 2d at 201.) The Rakowski court acknowledged the above holding in Alsup but concluded that nothing in Alsup required that a claim, particularly one for contribution, had to be individually and specifically described to be released. Further, Alsup dealt with section 2(c) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(c)), which was not an issue in Rakowski. Therefore, we reject Posdal’s position that Rakowski must be narrowly read in light of Alsup.

Next Posdal argues that Tate’s counsel’s failure to notify Clausen Miller of the negotiations precludes release of the contribution claim.

Posdal’s reliance on Kazale v. Kar-Lee Flowers (1989), 185 Ill. App. 3d 224, is misplaced. In Kazale, this court reversed a trial court order enforcing a settlement agreement. This court found that defendant failed to prove that plaintiff’s attorney had authority to enter into a settlement on her behalf. In the case before us, Posdal attacks Tate’s attorney for failing to notify Posdal’s other counsel, Clausen Miller, of the release and the negotiations which led up to it. However, no issue has been raised as to Levin’s authority to enter into the release. Nowhere in his affidavit does Levin state that he was not authorized to settle Posdal’s action against Tate. In fact, unlike Kazale, Posdal does not seek to set aside the settlement but only the effect of the release signed in conjunction with that settlement.

Posdal also relies on Home Insurance Co. v. Hertz Corp. (1978), 71 Ill. 2d 210. In that case, our supreme court reversed a line of appellate authority and held that a general release by an insured of all claims against a tort-feasor does not bar the subrogation action by an insurer-subrogee against that tort-feasor, where the tort-feasor procures the release from the injured-subrogor with knowledge of the insurer’s interest. (See also Country Mutual Insurance Co. v. Transit Casualty Co. (1978), 59 Ill. App. 3d 283.) Posdal concedes that Home is not dispositive of the issue before us but contends that its reasoning in that decision has a direct bearing on it. In Home, the supreme court reasoned that the prior rule permitted the tort-feasor and his own liability insurer to escape payment while the tort victim was effectively denied payment from his own carrier and the tort-feasor. The court stated in pertinent part:

“The Andersen rule in these circumstances constitutes a trap for the unwary insured plaintiff. While no fraud is alleged here, the rule itself encourages fraud or, at the very least, sharp practice on the part of the tortfeasor or his insurance carrier. The insured may be an unsophisticated, unrepresented party presented with a full and final release which he is told he must sign in order to effect a needed settlement. To require him to execute a release of all claims, even though the tortfeasor has knowledge at the insurer’s interest and the probable existence of a standard insurance policy provision obligating the insured to protect the insurer’s subrogation rights, is simply not consistent with fair dealing and ought not to be encouraged.” (Home Insurance, 71 Ill. 2d at 214.)

In the case at bar, Posdal was not “an unrepresented party” as envisioned by the Home court. Quite the contrary, he was represented by counsel and entered into a settlement agreement which he does not seek to overturn on the basis his attorney did not have authority to settle the case. Moreover, the decision in Rakowski v. Lucente had been the law for several years prior to Posdal’s execution of the release in this case, so that if Posdal and Levin had intended not to release the contribution claim, the appropriate language could have been inserted in the release.

Finally, Posdal argues that the fact that Tate’s attorneys negotiated the settlement agreement of Posdal’s personal injury and property damage suit without contacting Clausen Miller and their failure to petition the trial court for a finding of a good-faith settlement evidences their knowledge that Levin was attempting to negotiate only the personal injury and property damage claims. However, nothing in the Contribution Act automatically requires Tate to seek a finding as to a good-faith settlement. We will not speculate as to why Tate did not do so in this case. Further, nowhere in the affidavit of either Posdal or Levin does it state Levin only had authority to negotiate the personal injury and property damage claims. Their sole claim is that they did not intend for the contribution claim to be included in the release. However, we have already determined the language in the release reflects their intent to release the contribution claim as well.

We conclude, therefore, that the trial court did not err in granting Tate’s motion to dismiss Posdal’s claim for contribution against Tate.

The judgment of the circuit court in case No. 87 — L—0298 is affirmed; the judgment of the circuit court in case No. 88 — L—1792 is affirmed.

Affirmed.

INGLIS and GEIGER, JJ., concur.