Illinois DUI Law Brief on Alcohol Swabs in Blood Testing is Improper

POINTS AND AUTHORITIES

PAGE

People v. Kotecki, 279 Ill.App.3d 1066,666 N.E.2d 37

(2d Dist. 1996)............................................................................

Administrative Code Part 20 Section 1286.320(c) ................................... passim

625 ILCS 5/11-501.2 .....................................................................

People v. Emrich 113 Ill.2d 343, 498 N.E.2d 1140...................................

101 Ill.Dec. 632 (Ill.,1986)

People v. Glisson, 202 Ill.2d 499, 507, 782 N.E.2d 251, 256........................

270 Ill.Dec. 57, 62 (Ill., 2002)

Commonwealth Edison Co. v. Will County Collector, ...............................

196 Ill.2d 27, 39, 749 N.E.2d 964, 971-72 (2001)

Landgraf v. USI Film Products, 511 U.S. 244,128.....................................

L.Ed.2d 229, 114 S.Ct. 1483 (1994)

People v. Martinez, 2008 WL 4773137, 6 ................................................

(Ill.App. 1 Dist.) 2008

Millennium Maintenance Management, Inc. v. County of Lake, ........................

894 N.E.2d 845, 861 (Ill.App. 2 Dist., 2008)

Allegis Realty Investors v. Novak, 223 Ill.2d 318, 331, 308 .............................

Ill.Dec. 592, 860 N.E.2d 246 (2006)

People v. Emrich, 113 Ill.2d 343, 349, 498................................................

N.E.2d 1140, 1142, 101 Ill.Dec. 632 634 (Ill. 1986)

People v. Murphy, 108 Ill.2d 228, 234, 483 N.E.2d 1288, ..............................

1290, 91 Ill.Dec. 653, 655 (Ill., 1985)

People v. Ramsey, 192 Ill.2d 154, 157-158,...............................................

735 N.E.2d 533, 53, 248 Ill.Dec. 882, 884 (Ill. 2000)

U.S. Const., art. I, § 10) .....................................................................

Illinois Constitution (Ill. Const.1970, art. I, § 16..........................................

People v. Shumpert, 126 Ill.2d 344, 351, 128............................................

Ill.Dec. 18, 533 N.E.2d 1106 (1989)

People v. Franklin, 135 Ill.2d 78, 107, 142 Ill.Dec. 152,...............................

552 N.E.2d 743 (1990)

Brewer v. Peters, 262 Ill.App.3d 610, 613, 198 Ill.Dec. 555,..........................

633 N.E.2d 17 (1994)

Collins v. Youngblood, 497 U.S. 37, 49, .................................................

110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 43 (1990)

Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, ........................................

68, 0 L.Ed. 216, 217 (1925)

625 ILCS 5/11-501.4(a) ......................................................................

People v. Bonutti, App. 5 Dist. 2003, 273 Ill.Dec. 22, 338..............................

Ill.App. 3d 333, 788 N.E.2d 331 appeal allowed 281 Ill.Dec. 82, 205 Ill.2d 595,

803N.E.2d 486, affirmed 288 Ill.Dec. 131, 212 Ill.2d 182, 817 N.E.2d 489

Goldberg v. Michael, 328 Ill.App.3d 593, 597, 262.......................................

Ill.Dec. 626, 766 N.E.2d 246 (2002)

Scassifero v. Glaser, 333 Ill.App.3d 846, 860, 776 .......................................

N.E.2d 859, 871, 267 Ill.Dec. 487, 499 (Ill.App. 2 Dist.,2002)

People v. Ward, 14 Misc.2d 518, 178 N.Y.S.2d 708 (1958).............................

Bollin v. North Dakota Dept. of Transp, 696 N.W.2d 527 (N.D.,2005)................

State v. Jordan 181 S.W.3d 588 (2005).....................................................

ARGUMENTS

THE TRIAL COURT WAS CORRECT IN SUPPRESSING A BLOOD TEST WHEN THE SWAB THAT WAS USED FOR THE BLOOD DRAW WAS CONTAMINATED WITH ALCOHOL, IN VIOLATION OF THEN EXISTING RULES.

FURTHER, THE TRIAL COURT WAS CORRECT IN HOLDING THAT THE RULES GOVERNING BREATH TESTING IN EFFECT AT THE TIME OF THE TEST APPLY TO VALIDITY AND ADMISSIBILITY, RATHER THAN THOSE IN EFFECT AT THE TIME OF TRIAL

A. - The statute governing blood testing clearly reflects a legislative intent that the rules in effect at the time the persons drawing and testing the blood apply, rather than later amendments to said rules

B. - The Kotecki case is distinguishable, because the validity of the hospital's testing process was not the subject of Kotecki rule changes. Hence, the law in Kotecki was purely procedural.

C. - The legislature intended that the State Police testing standards, promulgated under 11-501.2, would apply to the testing process rather than the court process.

D. - A test that was validly performed on the date of testing should not be rendered invalid due to a subsequent rule change.

E. - Holding that the rules in effect at the time of trial govern the validity of the test would lead to absurd results.

F. - The trial court's rulings can be upheld under any lawful basis, even if it's reasoning was incorrect.

G. - Even under the amended rule, the results are inadmissible because the use of alcohol swabs for blood draws is not medically acceptable.

NATURE OF THE CASE AND STATEMENT OF FACTS

The Defendant was arrested for DUI on February 17, 2007.(C.1-4) On that date, the police had the defendants blood drawn for a DUI alcohol test. Unfortunately, it is undisputed that the disinfectant swab that was used during the Defendant's blood draw was mistakenly contaminated with alcohol. (C. 73-77)

On the date of the defendant's police blood draw, Administrative Code Part 20 Section 1286.320(c) of the Illinois Department of State Police Rules For Testing Of Breath, Blood, Urine for Alcohol, Other Drugs, And Intoxicating Compounds stated:

"A disinfectant that does not contain alcohol shall be used to clean the skin where a sample is to be collected." (Emphasis added)

Months later, after the Illinois State Police learned that several of the DUI blood kits in question had been packed with contaminated swabs containing alcohol, an emergency rule amendment was filed, changing 1286.320 (c) to read as follows:

"The blood sample should be drawn using proper medical technique." 31 Ill. Reg 10188 (Emergency Rule Effective July 9, 2007)

On October, 15, 2007, the defendant filed a motion to suppress the blood test results based upon a violation of ISP Rule 1286.320(c).(C. 101-103).

The State argued that, even though the blood draw violated the Rules at the time it was performed, it was still admissible into evidence because it did not violate the Rules that were in effect at the time of trial. Initially, the trial court agreed with the state, holding that the rules in effect at the time of trial governed admissibility. (c. 328-329)

The defendant then asked the trial court to reconsider. (c.337-351) There, the defendant argued that:

a) The ISP rules are not rules governing the admissibility of evidence; rather they are rules designed to protect the validity and integrity of the testing process;

b) The DUI laws make it a crime to drive with a BAC of .08 or more only if a test is performed in compliance with the ISP rules. Hence, the defendant on the date of the occurrence could not be found guilty of a per se DUI, but as a result of a rule change he was now possibly guilty of a per se DUI, thus ex post facto barred such an application of the amended rules;

c) Accepting the State's position that the Rules in effect not at the time of the test but rather at the time of trial applied would lead to more absurd results, for example:

1) Where a breath test operator was not licensed on the date of trial (even though he was licensed on the date of the test) the results would be inadmissible

2) Breath machines such as the Intoximeter 3000, and the Intoxilyzer 4011, and the Smith and Wesson 1000, and others, were at one time on the approved list of DUI breath test devices, and then subsequently taken off the approved list. For example, the Intoxilyzer 5000 was removed from the approved list as of May 1, 2007. (2006 IL REG TEXT 53970 (NS)) Accepting the States position, any trial which occurred after May 1, 2007 (the removal date of the Intoxilyzer 5000) involving a breath test on an Intoxilyzer 5000 would effectively cause the results to be inadmissible.

3) The personnel who perform the testing techniques would have to perform their jobs without knowing whether their actions were in compliance with an unknown future set of rules.

The trial court agreed with the defendant's arguments, and suppressed the results of the blood test. (c. 250-254)

STATUTES OR RULES INVOLVED

625 ILCS 5/11-501.2 states in pertinent part:

§ 11-501.2. Chemical and other tests.

(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 ***, evidence of the concentration of alcohol, ***in a person's blood or breath at the time alleged, as determined by analysis of the person's blood, *** shall be admissible. Where such test is made the following provisions shall apply:

1. Chemical analyses of the person's blood, *** to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police by a licensed physician, registered nurse, trained phlebotomist acting under the direction of a licensed physician, certified paramedic, or other individual possessing a valid permit issued by that Department for this purpose. ***The Department of State Police shall prescribe regulations as necessary to implement this Section.

2. When a person in this State shall submit to a blood test at the request of a law enforcement officer under the provisions of Section 11-501.1, only a physician authorized to practice medicine, a registered nurse, trained phlebotomist, or certified paramedic, or other qualified person approved by the Department of State Police may withdraw blood for the purpose of determining the alcohol, drug, or alcohol and drug content therein. This limitation shall not apply to the taking of breath or urine specimens. 625 ILCS 5/11-501.2 (sections omitted)

_______________________________________________________________

20 IL ADC 1286.320 (effective on the date of defendant's blood draw) stated:

1286.320 Blood Collection for Determining the Presence of Alcohol, Other Drugs or Intoxicating Compounds.

The following procedures shall be used to obtain a blood sample from a subject to determine the alcohol concentration, or presence of other drugs or intoxicating compounds:

****

c) A disinfectant that does not contain alcohol shall be used to clean the skin where a sample is to be collected.

___________________________________________________

20 IL ADC 1286.320 (Amended at 31 Ill. Reg. 15107, effective October 29, 2007) states:

1286.320 Blood Collection for Determining the Presence of Alcohol, Other Drugs or Intoxicating Compounds.

The following procedures shall be used to obtain a blood sample from a subject to determine the alcohol concentration, or presence of other drugs or intoxicating compounds:

****

c) The blood sample should be drawn using proper medical technique.



ARGUMENT

THE TRIAL COURT WAS CORRECT IN SUPPRESSING A BLOOD TEST WHEN THE SWAB THAT WAS USED FOR THE BLOOD DRAW WAS CONTAMINATED WITH ALCOHOL.

FURTHER, THE TRIAL COURT WAS CORRECT IN HOLDING THAT THE RULES GOVERNING BREATH TESTING IN EFFECT AT THE TIME OF THE TEST APPLY TO VALIDITY AND ADMISSIBILITY, RATHER THAN THOSE IN EFFECT AT THE TIME OF TRIAL

A. An amendment to a rule that governs both the validity of a blood test, and its admissibility, may not be retroactively applied. Retroactive application of amendments or repeals in criminal statutes is permissible only if such changes are purely procedural in nature.

In the instant case, one of the charges that the Defendant is facing is the felony of Aggravated Driving With a Blood Alcohol Concentration of 0.08 or More. (c. 63). Hence, the validity of the result of the blood alcohol test is the sine qua non of the offense. The Defendant is also charged with Aggravated Driving Under the Influence of Alcohol. (c. 26) Under 625 ILCS 11-501.2 (a), if the blood alcohol results are at or above 0.08 and deemed 'valid' as compliant with the Illinois State Police standards, then under paragraph (b) of that same statute:

"[I]t shall be presumed that the person was under the influence of alcohol." 625 ILCS 5/11-501.2(b)

It is undisputed that the disinfectant swab used immediately prior to the blood test in this case was contaminated with alcohol. By not arguing otherwise, the State apparently is conceding in this appeal that the test is inadmissible under the unamended Rules.

Because the manner in which the defendant's blood was drawn, i.e. using a swab contaminated with alcohol, violated the standards in effect at the time of the occurrence, the results would be considered invalid, and hence inadmissible. See, e.g. People v. Emrich 113 Ill.2d 343, 498 N.E.2d 1140, 101 Ill.Dec. 632 (Ill.,1986). Thus, the defendant could not be convicted for driving with a blood alcohol concentration of 0.08 or more, because the test performed on the defendant was at the time legally invalid.

The State is now requesting that this court give retroactive effect to the amendment to Rule 1286.320. The amendment to Rule 1286.320 would have the effect of reviving an otherwise invalid blood test, so that the defendant could now be convicted of a crime that could not have been convicted of on the date of the occurrence.

Retroactive applications of law in the criminal field are forbidden unless they are purely procedural. In People v. Glisson, 202 Ill.2d 499, 507, 782 N.E.2d 251, 256, 270 Ill.Dec. 57, 62 (Ill.,2002) the Illinois Supreme Court interpreted the general savings clause of the Statute on Statutes as follows:

"Therefore, we read the first italicized part of section 4 above to require that retroactive application of amendments or repeals in criminal statutes is permissible only if such changes are procedural in nature."

Thus, rules of evidence that are purely procedural may be retroactively applied. However, rules governing blood alcohol are not purely procedural - they also have as their primary purpose the reliability and validity of the evidence itself. The reliability or validity of evidence is a substantive function.

The amendment in question has the effect of removing a proof obstacle from the State's attempt to convict the defendant of having a certain blood alcohol level while driving, by forcing the result 'to be considered valid' under 11-501.2 of the Motor Vehicle Code.

The case relied upon by the State, People v. Kotecki, 279 IllApp.3d 1006, 666 NE2d 37 (2d Dist. 1996) is of questionable validity since the Illinois Supreme Court's ruling in Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d 27, 39, 749 N.E.2d 964, 971-72 (2001), where our supreme court adopted the analysis of Landgraf v. USI Film Products, 511 U.S. 244, 128 L.Ed.2d 229, 114 S.Ct. 1483 (1994), for determining when new legislation should be applied to existing controversies.

Both Commonwealth Edison and Landgraf were discussed in People v. Martinez 2008 WL 4773137, 6 (Ill.App. 1 Dist.) (Ill.App. 1 Dist.,2008) where it was stated:

"In Landgraf, the United States Supreme Court recognized the presumption against retroactive legislation: "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly." Landgraf, 511 U.S. at 265, 128 L.Ed.2d at 252, 114 S.Ct. at 1497. Following Landgraf, our supreme court directed that the court's first task is to determine whether the legislature has expressly prescribed the statute's proper reach. Commonwealth Edison,196 Ill.2d at 37, 749 N.E.2d at 970-71. If the legislature clearly indicated what the temporal reach of an amended statute should be, then, absent a constitutional prohibition, that expression of legislative intent must be given effect. If the legislature has not indicated the temporal reach of the amendment, then the court must determine whether applying the statute would have a retroactive impact. If applying the amended version of the law would have that result, the court must presume that the legislature did not intend that it be so applied. Commonwealth Edison,196 Ill.2d at 38, 749 N.E.2d at 971.

In Millineum Maintenance Management, Inc. v. County of Lake, 894 N.E.2d 845, 861 (Ill.App. 2 Dist.,2008) it was further stated that:

"[W]here, as here, a statute does not indicate whether it operates prospectively or retroactively, the temporal reach of the statute is prescribed by section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2006)), which provides that statutory amendments "that are procedural may be applied retroactively, while those that are substantive may not." Allegis Realty Investors v. Novak, 223 Ill.2d 318, 331, 307 Ill.Dec. 592, 860 N.E.2d 246 (2006).

The laws governing the manner in which a defendant's blood is drawn and tested, for DUI purposes, deal with validity of the result; not its admissibility. It has been held that the Rules governing the admissibility of blood alcohol tests in DUI case were intended to ensure reliability of evidence introduced in prosecutions for driving under the influence. People v. Emrich, 113 Ill.2d 343, 349, 498 N.E.2d 1140, 1142, 101 Ill.Dec. 632, 634 (Ill.,1986)

Section 11-501.2, which governs this area of the law, specifically states:

"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 State Police...."(625 ILCS 11-501.2 emphasis added)

In People v. Murphy, 108 Ill.2d 228, 234, 483 N.E.2d 1288, 1290, 91 Ill.Dec. 653, 655 (Ill.,1985) the Illinois Supreme Court, when discussing the DUI Blood-testing Standards, stated that:

"The certification requirements are a protection afforded an accused to insure that the results of testing called for by law-enforcement officers in driving-under-the-influence cases are reliable."

By removing the requirement that a swab be 'alcohol-free', the Rule change:

•1) lessens the States burden of proof (they no longer have to establish that the swab is alcohol-free);

•2) alters the legal rules of evidence to make a conviction easier (where it was impossible), and;

•3) it also removes a defense to the charge, (i.e. defendant can no longer use the rule as proof that the evidence used against him is invalid)

As stated in People v. Ramsey, 192 Ill.2d 154, 157-158, 735 N.E.2d 533, 53, 248 Ill.Dec. 882, 884 (Ill.,2000):

"Application of criminal or penal measures to events occurring before their enactment is restricted by article I, section 10, of the United States Constitution, which provides that "[n]o State shall * * * pass any * * * ex post facto Law" (U.S. Const., art. I, § 10) and by article I, section 16, of the Illinois Constitution (Ill. Const.1970, art. I, § 16), which contains similar language. Our court has held that a "law is ex post facto if it makes criminal an act that was innocent when done, if it increases the punishment for a previously committed offense, or if it alters the legal rules of evidence to make conviction easier." People v. Shumpert, 126 Ill.2d 344, 351, 128 Ill.Dec. 18, 533 N.E.2d 1106 (1989); accord People v. Franklin, 135 Ill.2d 78, 107, 142 Ill.Dec. 152, 552 N.E.2d 743 (1990); see Brewer v. Peters, 262 Ill.App.3d 610, 613, 198 Ill.Dec. 555, 633 N.E.2d 17 (1994). A law which abolishes an affirmative defense of justification or excuse constitutes an ex post facto law because "it expands the scope of a criminal prohibition after the act *158 is done." Collins v. Youngblood, 497 U.S. 37, 49, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 43 (1990); see also Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 68, 70 L.Ed. 216, 217 (1925) (a law is ex post facto if it "deprives one charged with [a] crime of any defense available according to law at the time when the act was committed")."

The previous version of 1286.320 (c) effective until June 30, 2004 used to read:

"A disinfectant shall be used to clean the skin where a sample is to be collected."

This rule was then amended effective June 30, 2004 to specifically add the language "that does not contain alcohol". 28 Ill. Reg.19176.

  1. The Kotecki case is distinguishable, because the validity of the hospital's testing process was not the subject of Kotecki rule changes. Hence, the law in Kotecki was purely procedural.

There is several major distinctions between the Kotecki decision and the issue we have here.

Unlike Kotecki, what we have here are violations of the Rules governing the reliability of the blood testing process, which the rules are designed to protect.

In Kotecki, the changes in the statute in question had no bearing on the actual testing process. Rather, the change in the law only governed whether, after the test was completed, the doctor had to actually receive the results.

Additionally, the statute in the instant appeal (11-501.2) speaks in terms of validity only. The Kotecki statute, 11-501.4(a), clearly defines itself as an admissibility statute. 625 11-501.4 refers to admissibility at least 3 times:

§ 11-501.4. Admissibility of chemical tests of blood conducted in the regular course

of providing emergency medical treatment.


(a) Notwithstanding any other provision of law, the results of blood tests performed for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, of an individual's blood conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961, [FN1] when each of the following criteria are met:

(1) the chemical tests performed upon an individual's blood were ordered in the regular course of providing emergency medical treatment and not at the request of law enforcement authorities;

(2) the chemical tests performed upon an individual's blood were performed by the laboratory routinely used by the hospital; and

(3) results of chemical tests performed upon an individual's blood are admissible into evidence regardless of the time that the records were prepared.

(625 ILCS 5/11-501.4(a) Emphasis added)

Finally, the Kotecki court held that 11-501.4 governed the issues at trial, not past events. 11-501.2 and the Rules of the State Police governed the test process itself, and after those events had been performed, the rule changes occurred.

Lastly, the Kotecki case involved a law governing admissibility only, whereas the instant case involves an administrative rule change by an agency. The agencies' function does not allow it to create rules governing the court's procedures. Rather, it only is charged with rules governing the validity of the testing process.

To declare that the ISP Rule at issue governs matters of procedure only, would require this Court to hold that the Illinois State Police have the power to issue Rules that control the procedural aspects of the criminal courts.

Additionally, even Kotecki actually supports the defendant herein. As the Kotecki court stated:

"The amendment at issue neither enlarged the punishment, nor criminalized conduct which was legal when committed, nor changed the quality or degree of the offense. Moreover, it did not alter the law so as to require less proof, in amount or degree, to convict." People v. Kotecki, 279 Ill.App.3d 1006, 1013, 666 N.E.2d 37, 41, 216 Ill.Dec. 869, 873 (Ill.App. 2 Dist.,1996)

Thus the language in Kotecki, if applied here, would support the defendant. The Rule change herein does change the quality and degree of the offense.

  1. The legislature intended that the State Police testing standards, promulgated under 11-501.2, would apply to the testing process rather than the court process.

The mere showing of noncompliance with the Department [of State Police] standards establishes a prima facie case of invalidity of alcohol breath test. People v. Bonutti, App. 5 Dist.2003, 273 Ill.Dec. 22, 338 Ill.App.3d 333, 788 N.E.2d 331, appeal allowed 281 Ill.Dec. 82, 205 Ill.2d 595, 803 N.E.2d 486, affirmed 288 Ill.Dec. 131, 212 Ill.2d 182, 817 N.E.2d 489.

Did the legislature intend that the rules in effect at the time of the testing process apply to the validity (and hence admissibility) of a test result, or did they intend that an unknown set of rules, which might be developed or amended or repealed months later, apply to the admissibility of the result?

Knowing that the failure to adhere to these rules would cause the results to be inadmissible, it makes clear sense that the legislature would have wanted the testing personnel involved in performing the tests to know and then follow the guidelines then in effect, rather than having these personnel guess at what guidelines might be in effect at the time of some future trial.

The language of the statute clearly denotes that the issue of compliance be determined by comparing the actions performed in the process with the rules that were in effect at that time, rather than those that might be in effect on some later date.

The statute at question reads:

Chemical and other tests

(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 ***, evidence of the concentration of alcohol, ***in a person's blood or breath at the time alleged, as determined by analysis of the person's blood, *** shall be admissible. Where such test is made the following provisions shall apply:

1. Chemical analyses of the person's blood, *** to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police by a licensed physician, registered nurse, trained phlebotomist acting under the direction of a licensed physician, certified paramedic, or other individual possessing a valid permit issued by that Department for this purpose. ***The Department of State Police shall prescribe regulations as necessary to implement this Section.

2. When a person in this State shall submit to a blood test at the request of a law enforcement officer under the provisions of Section 11-501.1, only a physician authorized to practice medicine, a registered nurse, trained phlebotomist, or certified paramedic, or other qualified person approved by the Department of State Police may withdraw blood for the purpose of determining the alcohol, drug, or alcohol and drug content therein. This limitation shall not apply to the taking of breath or urine specimens.625 ILCS 5/11-501.2

(625 ILCS 5/11-501.2; Sections omitted and italicization added)

  1. A test that was originally valid should not be rendered invalid due to a later rule change. Thus, the 2004 rule change that added the requirement of an alcohol-free swab in blood testing, should not be retroactively applied to invalidate all of the suspensions and convictions that took place between 2001 and June 30, 2004.

From 2001 to 2004, the previous version of 1286.320 (c) did NOT contain a requirement that the swab be alcohol-free. It then read:

"A disinfectant shall be used to clean the skin where a sample is to be collected."

Then, effective June 30, 2004 Rule 1286.320 (c) was amended to specifically add the language "that does not contain alcohol". 28 Ill.Reg. 19176.

The State is asking this court to hold that, as a matter of law, that the rules in effect at the time of trial govern the validity of the results of blood and breath tests. Put another way, they are asking this court to declare that all tests which were originally performed in conformance with the rules, but which do not comply with the rules now in effect at the time of trial be rendered inadmissible.

Thus, under the State's argument in this appeal, if a blood test was performed on a defendant in between 2001 and 2004 using an alcohol based swab (which was valid under the rules), but the trial did not occur until after June 30, 2004 (when the alcohol-free requirement was added), then the test result was barred.

Obviously, the State would argue that the legislature did not intend that this rule change be applied retroactively.

Further, the State has not even addressed why Rule 1286.320 was specifically amended on June 30, 2004 to require alcohol-free disinfectants, and then 3 short years later, they amended the Rule again. Such constant rule amendments, without explanation, should leave the motives of the agency suspect.

D. Holding that the rules in effect at the time of trial govern the validity of the test would lead to absurd results and an inability to comply with the rules promulgated in futuro.

Testing personnel such as doctors, nurses, lab technicians and police personnel should have the legality of their conduct determined based on the laws in effect at the time of the actions they performed, rather than basing them on laws that were changed or amended at a later date. "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly." Landgraf, 511 U.S. at 265, 128 L.Ed.2d at 252, 114 S.Ct. at 1497. Thus, if the nurse used a swab laced with alcohol when the law prohibited it, it is an improper procedure.

Such a ruling would lead to absurd results, contrary to reason. The following are a set of real-life scenarios:

Example 1 --- the Rules require that a breath operator to be licensed by the Department. On the date of the defendants arrest and test, the breath operator was in fact licensed. Months later, at the time of trial, the operator's license has expired - according to the State's arguments, the results are inadmissible.

Example 2 --- on January 1, 2007, the defendant failed a breath test on the then-approved Intoxilyzer 5000. Effective May 1, 2007, the Intoxilyzer 5000 was removed from the approved list of breath tests. See 1286 Ill. Admin. Code 210.If his trial occurs after May 1, 2007, under the State's argument, the result is inadmissible.

Example 3 --- the Rules require that the person who performed the blood draw must be a licensed physician, phlebotomist, or nurse acting under the direction of a licensed physician - what happens if that person is no longer so employed at the time of trial? According to the state, the result is inadmissible.

These are but a few examples of how unworkable, unrealistic, and unintended the results would be if the testing process itself was governed by a set of rules that were not even in existence until the trial, rather than governing the validity of the testing process with the Rules in effect at the time the process itself occurred.

D. The trial court's rulings can be upheld under any lawful basis, even if it's reasoning was incorrect.

The law is well-stated that the Appellate Court may affirm a trial court ruling for any reason supported by the record regardless of the basis relied upon by the trial court. Goldberg v. Michael, 328 Ill.App.3d 593, 597, 262 Ill.Dec. 626, 766 N.E.2d 246 (2002); Scassifero v. Glaser, 333 Ill.App.3d 846, 860, 776 N.E.2d 859, 871, 267 Ill.Dec. 487, 499 (Ill.App. 2 Dist.,2002)

As argued throughout this brief, there are ample reasons, in addition to or as an alternative to the trial court's reasoning, to affirm suppression of the blood test result.

  1. Even under the amended rule, the results are still inadmissible because the use of alcohol swabs for blood draws is not a "proper medical technique".

The present version of Rule 1286.320 reads as follows:

"The blood sample should be drawn using a proper medical technique."

The Record on Appeal in this matter contains numerous articles and documents that criticize or prohibit the use of swabs contaminated with alcohol in forensic alcohol testing, as such will invalidate the results.

The NCCLS (National Committee for Clinical Laboratory Standards) has developed guidelines for blood alcohol testing. (c.137-177) The NCCLS Subcommittee on Blood Alcohol Testing is comprised of members from virtually every medical society and field, such as clinical chemistry, bioanalysts, hematologists, toxicologists, et cet. (c. 144-148 throughout the world, including:

For example, The NCCLS Blood Alcohol Approved Guideline for Blood Alcohol Testing, Volume 17 Number 14, 2.3.3 (c. 154-156) specifically states:

"The disinfectant used for cleansing the venipuncture site should not contain alcohol or other volatile substances...Studies by Dubowski and Essary have revealed that blood specimens can be significantly contaminated if alcohol containing sponges are used to cover the venipuncture site at the time when the needle is withdrawn from the vein while attached to the tubes..."

According to NCCLS "the U.S. Food and Drug Administration (FDA) has evaluated and recognized this approved-level consensus guideline for use in satisfying a regulatory requirement." (c.137)

The manufacturer of the blood testing tubes contained in the DUI kits, Becton Dickinson, also states in it's blood collection materials under Specimen Collection and Handling "Do not use alcohol based cleansing materials when samples are used for blood alcohol testing. (c. 186)

Other toxicology sites also emphasize non-alcohol swabs. Toxexpert's materials state:

"Proper blood draw techniques are crucial to the integrity of the sample. ...Thus, the prospective puncture site must be cleansed with a non-alcoholic swab and with proper mechanical movement, to minimize drawing microbes into the syringe."

In "Contamination of Blood Specimens for Alcohol Analysis during Collection" Abstracts and Reviews in Alcohol Driving (no.2) 3-7, Dr. Dubowski (c. 198-203) writes:

"We urge that three precautions be invariably used....in collecting blood for alcohol determination: 1) Avoid use of ethanol, isopropanol or other volatile organic substance for skin cleansing prior to venipuncture or capillary blood collection by skin puncture 2) use only dry sterile gauze when covering the puncture site during needle removal; 3) when using evacuated collection tubes, remove the tube from the collection needle and holder before withdrawing the needle from the puncture site."(c.202)

In the Center for Phlebotomy Education Handbook (c.265-273) mention is also made of the fact that collectors can significantly alter test results if the draw site is cleansed improperly. (c.272)

In People v. Ward, 14 Misc.2d 518, 178 N.Y.S.2d 708 (1958), the court held that the admission of a blood test after the arm was swabbed with alcohol in a DWI case was not a proper practice and that introduction of the results was error. (c. 274-275)

In Bollin v. North Dakota Dept. of Transp. 696 N.W.2d 527 (N.D.,2005) it was held that the results of blood test were not admissible in administrative proceeding to suspend motorist's driver's license for driving under the influence of alcohol; where the form used in connection with taking the blood sample indicated that nurse used disinfectant in blood-sample kit and unidentified alternative disinfectant, deputy could not clearly remember which disinfectant was used by nurse, and the state toxicologist stated that she could not testify to accuracy of results without knowing which alternative disinfectant was used.

Also in the record on appeal are the regulations prohibiting alcohol swabs in DUI cases from the State Police or department of Health Agencies from Ohio (c.276) and Missouri (see, e.g. State v. Jordan 181 S.W.3d 588 (2005) (stating that a non-alcoholic antiseptic must be used)(c.277-284). Also included are the states of West Virginia (c. 301-308)("cleanse the site with alcohol free prep pad provided") and California (c. 316-317("Alcohol or other volatile organic disinfectants are NOT USED to clean the skin where a specimen is to be collected") and Idaho(c. 318-322)("The skin of the area of puncture shall be cleansed thoroughly and disinfected with an aqueous solution of a nonvolatile antiseptic. Alcohol or other phenolic solutions shall not be used as a skin antiseptic")

Thus, it appears to be practically universal that the use of an alcohol contaminated swab or disinfectant in this matter is prohibited and an unacceptable "medical technique" even under the newest version of the Illinois State Police Rules.

As such, this court can also uphold the suppression of the blood alcohol test in this matter because there is ample support in the record for such a determination, "regardless of the basis relied upon by the trial court." Scassifero v. Glaser 333 Ill.App.3d 846, 860, 776 N.E.2d 859, 871, 267 Ill.Dec. 487, 499 (Ill.App. 2 Dist.,2002)

CONCLUSION

For all of the reasons stated herein, this Honorable Court should affirm the trial court's ruling suppressing the blood test where a contaminated alcohol swab was used.

Respectfully submitted,

RAMSELL & ASSOCIATES, L.L.C.

By:

DONALD J. RAMSELL

RAMSELL & ASSOCIATES, L.L.C.

128 S. County Farm Road

Suite F

Wheaton, IL 60187

(630) 665-8780

s/appeal/rplybrf&arg.appelle.morris.jf