ILLINOIS BREATH TESTING ISSUES AND STATE BREATH REGULATIONS
"Who will police the Police when the Police won't police themselves?"
By Donald J. Ramsell
Ramsell, Armamentos & Klis, LLC
128 S. County Farm Road
Wheaton IL 60187
Defending against the results of a breath test in an Illinois criminal DUI case generally involves six possible techniques:
- Suppressing the results due to a 4th amendment violation; or
- Suppressing the results due to a violation of ISP rules or regulations; or
- Suppressing the results because they are inherently unreliable; or
- Suppressing the results due to a failure of the prosecution to comply with discovery (i.e. sanctions); or
- At trial, the state fails to lay a proper foundation for admission of the results; or
- At trial, convincing the trier of fact that the results are inaccurate or unreliable.
A. Suppressing the results due to a 4th amendment violation
a. In Illinois, if the stop or arrest of a defendant is a violation of his Constitutional rights, then a subsequent breath test will be suppressed as the 'fruit of the poisonous tree'.
B. Suppressing the results due to a violation of ISP rules or regulations
a. In a prosecution for criminal DUI, the burden is on the prosecution to establish that the test was conducted in compliance with the applicable Illinois State Police Breath Testing regulations. See, e.g., People v. Emrich, 113 Ill.2d 343 (1986). Failure to establish compliance will result in suppression of the results. Emrich, supra.
b. Examples of rule violations that will result in suppression
i. Failure to conduct a 20 minute observation period.
In People v. Bonutti, 212 Ill.2d 182 (Ill. 2004) the Illinois Supreme Court affirmed a suppression of the breath test where the police failed to properly observe the defendant for the minimum 20 minute period. The court held, inter alia, that the police must perform this observation, and even if the defendant doesn't burp, belch, etc., the results are inadmissible.
ii. Failure to follow proper certification procedures
A breath machine must be certified as accurate within +/- 0.01 both before and after a breath test, and these certifications must be no greater than 62 days apart. 20 Ill.Admin. §1286.200. The failure to follow proper certification procedures can result in suppression. See, e.g., People v. England 188 Ill. App. 3d 9 (2d Dist. 1989) or People v. Kilpatrick 216 Ill.App.3d 875 (2d. Dist. 1991). (variation of .013 between simulator and result is not an improper certification).
iii. Machine repair or malfunction during 62 period
If there is evidence of a machine breakdown, malfunction or repair during the 62 day certification period, the state has the additional burden of proving that this event did not affect the results of the defendant's breath test. People v. Boughton, 268 Ill.App.3d 170 (4th Dist. 1994).
iv. Operator must be licensed
Where the operator's license expired one day prior to the breath test, the results were inadmissible. People v. Keith, 206 Ill.App.3d 414 (3d Dist. 1990).
v. Failure to establish operator competency
The state must establish that the breath operator is sufficiently familiar with the operation of the machine in question. People v. Graney, 234 Ill.App.3d 497 (2d Dist. 1992).
vi. Instrument logbook improperly maintained
The state has the burden to establish that the logbook was properly maintained, and that the entries contained therein constitute a sufficient business record. People v. Graney, 234 Ill.App.3d 497 (2d Dist. 1992). Evidence that the document is not trustworthy may bar its admission. See, e.g., People v. Kautz, 272 Ill.App.3d 444 (2d dist. 1995) (discussing the requirements for admission of a public record).
Even though the regulations do not prohibit belching, the court may still suppress the results where it believed that belching would affect the accuracy of the results. People v. Bertsch, 183 Ill.App.3d 23 (2d Dist. 1989).
viii. Foreign substance
Section 1286.310 prohibits foreign substances in the mouth during the 20 minute observation period. Chewing tobacco is a foreign substance. People v. Miller, 219 Ill.App.3d 246 (3d Dist. 1991).
Also, the presence of a 'tongue stud' is a foreign substance. Guy v. State of Indiana, 805 N.E.2d 835 (Ind. Ct. App. 2004) (The Indiana regulation reads: "(1) The person to be tested must have had nothing to eat or drink, must not have put any foreign substance in his or her mouth or respiratory tract, and must not smoke within twenty (20) minutes prior to the time a breath sample is taken.")
C. Suppressing the results because they are inherently unreliable
a. Even if there are no violations of ISP Rules or regulations, a court still has inherent authority to suppress the results when they are unreliable.
b. Examples of suppression based solely on unreliability
When a subject belched during the 20 minute observation period, the trial court's decision to suppress was upheld, even though there was not a violation of ISP (then IDPH) regulations. People v. Bertsch, 183 Ill.App.3d 23 (2d Dist. 1989).
ii. Acid Reflux (GERD)
Even if acid reflux is not in violation of the ISP rules, the results of a breath test may be suppressed if they are rendered unreliable. People v. Bonutti 212 Ill.2d 182 (Ill. 2004).
iii. Post-driving consumption of alcohol
When the defendant consumes alcohol after driving, the results may be suppressed if the amount consumed renders the results unreliable. (i.e. the driver may not have been at or above .08 when driving) See, e.g., People v. Bulman, 212 Ill. App. 3d 795 (1st Dist. 1991).
D. Suppressing the results due to a failure of the prosecution to comply with discovery (i.e. sanctions)
a. The right to discovery
i. In People v. Schmidt, 56 Ill.2d 572 (1974), the Illinois Supreme Court held that a defendant in a misdemeanor DUI case was only entitled to limited discovery, such as a list of the State's witnesses, any confessions of the defendant, and any evidence negating defendant's guilt, and the results of the breathalyzer test.
ii. Subsequent to Schmidt, the Illinois legislature passed into law the following statute:
"Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information shall be made available to the person or such person's attorney." 625 ILCS 5/11-501.2(a)(4).
iii. Additionally, the United States Supreme Court held in California v. Trombetta, 467 U.S. 479 (1984), that the state does not have the duty to preserve breath samples for independent testing, so long as there remain alternative means to challenge the results of the breath test. The Court then identified the following alternative means, including: faulty calibration, extraneous interference with machine measurements, the opportunity to review weekly calibration results, and the utilization of data to impeach the machine's reliability.
iv. Traditionally, the Illinois Appellate Courts have ignored 625 ILCS 5/11-501.2(a)(4), and Trombetta. (see, e.g. People v. Teller, 207 Ill.App.3d 346 (2d Dist. 1991) (restricting the right to subpoena breath information in summary suspension cases).
v. Nevertheless, it can be argued that by implication, appellate courts in Illinois have recognized the right to full discovery, by way of the detailed breath information obtained and employed by defense counsel in such cases as People v. England 188 Ill. App. 3d 9 (2d Dist. 1989) (simulator solution documentation); and People v. Hanna 207 Ill.2d 486, 497, 279 Ill.Dec. 618, 800 N.E.2d 1201 (2003) (documentation regarding the testing performed on Intoxilyzer 5000, Intoximeter 3000, and Intox EC/IR by the IDPH).
b. Types of information to obtain
i. The breath ticket
Obviously, the breath ticket may tell you something more than the results itself. Often, the timing of the information input, the air blank, and the blow may impact the 20 minute observation period.
ii. The logbook
Here, the (partial) story of the machine's operation is told. It will tell you when the machine was certified for accuracy. It will NOT tell you if there have been any malfunctions or repairs, because the most recent ISP rules have removed the requirement to enter such information in the logbook. Also, the logbook is no longer required to contain ALL of the tests performed on subjects (also removed by ISP effective 6-30-04). Nevertheless, one might glean a problem if the machine is recertified within an unusually short period of time, or if there appears to be an unusually long period where no subject tests have been entered.
iii. The actual certification printouts
The inspector will obtain actual printouts of the certification tests that pass. There is no requirement that the printouts of failing certification tests be retained (per amended ISP regulations eff. 6-30-04) Look at the actual printouts to see if they are in proper sequence (i.e. test #103 and test #104). If they are out of sequence, something is wrong.
iv. The Operator's Manual
A wealth of information about the machine is contained in the operator's manual, such as the Limited Warranty (the manufacturer will only warrant the parts and workmanship of the machine to be free from defect for 12 to 24 months after purchase; it does not warrant that the machine will be free from error!; also there are limitations of use, proper operating procedures and environments, etc.)
v. The Supervisor's Manual
This manual contains more information on the machine, such as inspection, maintenance and calibration requirements, how to erase data, advanced setups, etc.
vi. The Administrator's Manual
The 'mother' of all State breath testing operating manuals (as opposed to repair manuals), this manual includes information on calibrating the instrument, operating principles, key functions, etc.
vii. The internal data for the breath machine ('Shift F-5')
Breath machines contain computer memory banks, where data regarding accuracy checks, calibration checks, quick tests, subject tests, aborted tests, etc. are stored. By pressing Shift F5 on the keyboard, access to the internal memory is gained, and a printout of all quick tests, accuracy tests, aborted tests, and some other events can be obtained. Often, this information is the only means to determine the true history of the machine's functioning during a particular time frame, especially in light of recent ISP regulations which allow any tests, malfunctions and repairs to be excluded from the logbook. (Note: the new ISP regulations effective 6-30-04 also allow this internal data to be removed and destroyed at the sole discretion of the Illinois State Police)
viii. The malfunction and repair records
Not all malfunctions and repairs must be documented by the State Police. Only those malfunctions or repairs that the ISP determines to have affected the accuracy of the machine must be maintained. All others may be destroyed or undocumented. Also, effective 6-30-04, those malfunctions which have been documented will no longer be entered in the logbook. Rather, these repair and malfunction records will be stored in the bowels of the ISP office in Springfield Illinois, and may only be obtained upon written request or subpoena.
ix. The machine parameters ('Shift F-11')
The most critical component of the Intox EC/IR is the fuel cell. The diagnostic functioning of the fuel cell, and other components of the machine, are governed by parameters. In order to allow for fluctuations and variances in performance, the machine is programmed to abort only if the actual functioning of the components exceeds a set of parameters programmed into the software (i.e. fuel cell temperature set to fluctuate from 35 to 37 degrees centigrade before machine shuts down, even though true alcohol measurement is dependent on exactly 36 degrees centigrade).
Other interesting information contained in the printout can include that the slope diction system has been disengaged (i.e. 'Slope Detection: OFF'). However, ISP has had their software modified so that newer Shift F11 printouts no longer reveal that the slope detection has been disengaged.
x. Any studies or testing performed by ISP on the model used
Earlier breath regulations in Illinois required the State to perform rigorous tests on each model, before units could be employed in the field. These tests would then be documented in a final report. For example, the Intoxilyzer 5000 originally failed the testing done by IDPH, and had to be re-tested before it finally passed. When the Intox EC/IR was introduced, the IDPH Chief failed to perform certain components of the testing protocol. This failure was the issue in People v. Hanna 207 Ill.2d 486, 497, 279 Ill.Dec. 618, 800 N.E.2d 1201 (2003). There, the Chief explained that the testing was unnecessary. The Illinois Supreme court agreed.
Nevertheless, testing for certain breathalyzer problems may still take place with ISP, but on an unregulated basis. A request or subpoena may reveal such an issue, or at least put the possibility to rest.
c. The failure to comply with discovery
i. If the defendant requests information, by subpoena or motion, the subsequent destruction of said information is grounds for sanctions. See, e.g., People v. Newberry, 166 Ill.2d 310 (1995)(failure to preserve drugs for independent analysis requires complete dismissal of charges), People v. Koutsakis, 255 Ill.App.3d 306(failure to preserve dispatch tapes and police communications requires all evidence by State regarding length of stop to be barred), and People v. Camp, 352 Ill.App.3d 357 (2d. Dist 2004) (loss of videotape of field sobriety tests would not require dismissal, but may include instructing the jury that the absence of the videotape requires an inference that the tape's contents are favorable to defendant)
ii. Under Trombetta, failure to produce evidence to contest the validity, reliability, or accuracy of a breath test, when the original breath sample has been destroyed, can equate to a DUE Process violation, and complete dismissal of the charges. However, more likely will be the sanction tailored to the actual request, i.e. suppression of the breath test only.
E. At trial, the state fails to lay a proper foundation for admission of the results
a. 625 ILCS 11-501.2 requires the prosecution to prove compliance with the ISP breath regulations, in order to admit the results of that person's breath test at trial. Limitations as to which of the many rules the state must prove to have been complied with have been the subject of many opinions. At a minimum, the state must show that the tests were performed in accordance with the standards adopted by the state police; the operator was licensed; the machine is an approved model; was tested regularly for accuracy, and was working properly; the motorist was observed for the requisite 20 minutes and did not smoke, regurgitate or drink; and that the printout can be linked to the defendant. People v. Orth, 124 Ill.2d 326 (1988).
b. The manner of establishing compliance, however, is subject to dispute. Introduction of the logbook used to be simple under a 'business record' or 'public record' exception to the hearsay rule. At the time those early cases were decided, however, the logbook by regulation was required to be complete; i.e. contain all the certification tests (pass or fail) subject tests, errors, malfunctions, and repairs. Now, the 'new' logbook need not contain anything but the defendant's own test, and the passing certifications. By rule, the logbook is no longer considered complete. Under this scenario, a defense attorney may be able to successfully argue against its admission.
c. Further, the hearsay exception for logbooks may no longer be viable for admission. In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that ex parte affidavits and testimonials were inadmissible unless the defendant was given the opportunity to confront and cross-examine the maker of the statement, where the statement was considered "testimonial". Crawford defines a statement as 'testimonial' when the declarants would reasonably expect the statement to be used prosecutorially. Logbook entries made by Illinois State Police Inspectors, designed to be used to prosecute DUI cases, arguably fall into this definition.
So far, only one court has addressed the Crawford holding in a DUI setting. In City of Las Vegas v. Walsh, 120 Nev. Adv. Op. No. 44 (Decided June 11, 2004), the Supreme Court of Nevada in a DUI case ruled that an affidavit of compliance for a blood test, made pursuant to a state statute, was entered in violation of defendant's Right of Confrontation, citing to Crawford. This case, disallowing the use of affidavits to establish the foundation necessary for introduction of a blood test, closely resembles the Illinois practice which pre-dated Crawford.
F. At trial, convincing the trier of fact that the results are inaccurate or unreliable
a. Even if the breath test results are admitted into evidence at trial, the defendant still has the opportunity to raise doubt as to the weight to give to the test. Several methods may apply to question the result.
i. The DUI statutes require proof that the defendant was at or above 0.08 at the time of driving
Generally, breath testing occurs 45 minutes to 90 minutes post driving. Illinois law requires proof that the defendants BrAC (breath alcohol concentration) was .08 at the time of driving. See, e.g. People v. Kappas, 120 Ill.App.3d 123 (4th Dist. 1983); People v. Zator, 209 Ill.App.3d 322 (1st Dist 1991).
Because the consumption, metabolization and elimination of alcohol is a process occurring over time, it is scientifically established that a person's blood alcohol level (and hence breath alcohol level) will rise over a period of time, thus causing a BAC to be greater at the station than it was when the defendant was driving. This issue is commonly referred to as a rising BAC defense, or in smaller circles, as the "Big Gulp Defense". Use of an expert may assist in establishing this theory.
ii. Non-specificity of the machine to read alcohol or ethanol.
Most breath machines are non-specific for ethanol. In other words, they read all types of alcohols as ethanol. All human beings naturally produce certain alcohols, such as methanol and isopropanol, and it will be found in their breath. Some humans can even create an overabundance of these alcohols and other substances which falsely report as alcohol.
For example, people on an Atkins' diet will bring themselves into a deliberate state of ketosis, which will create falsely elevated results on certain breath machines.
In some instances, people who use asthma spray will have falsely elevated breath test results. In People v. Kamide 254 Ill. App. 3d 215 (2d Dist. 1993), the defendant presented evidence that his breath test was skewed by asthma spray. The Court upheld the defendant's right to present such a defense.
NOTE: The new ISP Breath regulations now define alcohol as including methanol and isopropanol.
iii. The Disconnect theory
The 'disconnect' theory is simple. The defendant looks great on video, or performs the field sobriety tests well, yet the breath test result is a .23. In the famous words of Dr. Henry Lee, a forensic scientist who testified in the OJ Simpson trial, "something wrong."
iv. Inherent margin of error
The breath machines in Illinois are only certified as accurate within =/- 0.01. When the results of a breath test, when reduced by the margin of error, do not exceed the legal limit (i.e. 0.08), the defendant is entitled to a Not Guilty on the per se as a matter of law, according to many stat's appellate courts. See, e.g., State v. Boehmer, 613 P.2d 916 (1980).
GERD, or gastroesophageal reflux disease, can cause acid reflux, which brings contents from the stomach into the breath passages, thus causing an artificially inflated breath test result. A brilliant discussion of this phenomenon is found in People v. Bonutti, 212 Ill.2d 182 (Ill. 2004).
vi. Ambient Air
According to certain experts, it is a well known fact that breath testing equipment now in use does not actually print the true result of the 'air blank' or ambient air analysis, which is run immediately prior to a subject test. Rather, the machine will 'test' the air, and then compensate for any result obtained. The result printed for the Air blank, i.e. '.000' is misleading. In fact, the Intoxilyzer 5000 will print .000 even if the true result is .019. This procedure can have an impact on the subject's true breath result.
vii. Breathing patterns
Science reports that certain breathing techniques can cause the result to artificially increase or decrease. Keeping the mouth closed and using shallow nasal breathing has been shown to increase the result by 7.3 percent. Others report that breathing techniques can change the result by 50% to 150%.
viii. Other sources of error.
The above are simply a short list of potential errors in breath testing than may be raised in defense of a breath test.
A good attorney should obtain all information available on this subject. Sources of information which I recommend, and which I would like to acknowledge as having been employed in preparation of this article, include:
A. Lawrence Taylor, "Drunk Driving Defense" 5th Ed. (Aspen Publishers)
B. "Defending DUI and Related Cases" (2003) Ahern & Blomquist, eds. Illinois Institute for Continuing legal Education
C. "Using the Confrontation Clause to Win DUI Cases", Donald J. Ramsell, ISBA Traffic Law & Courts Newsletter, (Jan. 2005)
D. Illinois State Police Blood and Breath Testing Regulations, 20 Ill.Admin 1286 (eff. 6-30-04)