Warrenville DUI Lawyers Ramsell and Associates Win Improper Breath Test Accuracy in DuPage County

NATURE OF THE CASE

This is a reply to the State's Appeal of the Trial Court's ruling that granted the Appellee's (herein referred to as the Defendant) motion to strike the results of the Defendant's breath test at a bench trial. (C. 16 & 365). The Defendant was arrested on March 10, 2009 for DUI by a Village of Warrenville Police Officer and submitted to a breath test with the result of .184. (C. 2 & 107). The parties proceeded by way of a bench trial that began on November 2, 2010 and stopped on November 4, 2010 when the State filed its Notice of Appeal after the State was permitted to reopen its proofs but did not present any additional evidence. (C. 20; C. 375; C. 16).

During the trial, Officer Mossy from the City of Warrenville testified on the first day of trial on November 1, 2010. (C. 76 - 110). As the breath operator for the Defendant's case, Officer Moss's testimony included statements pertaining to the foundation of the Defendant's breath test. (C. 78 - 110). During Officer Mossy's testimony, the State asked to move into evidence the logbook from the breathalyzer used to test the Defendant's breath, in order to prove that the breathalyzer was properly certified within 62 days. (C. 91 & 95). The Defendant objected, but the Court admitted the exhibit, subject to cross-examination. (C. 91 & 95). The Defendant also objected to the admission of the Defendant's breath ticket and the court reserved its ruling, subject to cross-examination. (C. 108).

When the Defendant cross-examined Officer Mossy, Officer Mossy testified that the logbook pages did not have the reference sample values in the accuracy check records. (C. 156). On re-direct, the State introduced Exhibits 8 and 9, which were affidavits that stated that the breathalyzer used to test the Defendant "coincided with the predicted alcohol concentration of the Reference Sample within ±0.01 W/V" from the dates of April 15, 2009 and February 17, 2009. (C. 157 - 170) (see Appendix 3 & 4). The Defendant objected to the admission of the documents based on hearsay, improper discovery disclosure, and outside the scope of cross-examination. (C. 159). Over the Defendant's objection, both affidavits were admitted subject to cross-examination. (C. 188).

On November 3, 2010, the state rested after presenting two witnesses. (C. 294; C. 75 - 290). After the State rested, the Defendant made a motion to strike the results of the breath test. (C. 294). Prior to June 2009 (when the Defendant's breath test was taken), the law regarding breath tests (20 Ill. Admin. Code 1286(c)) required the accuracy checks to "quantiate a reference sample within plus or minus 0.01 BrAC of the referenced sample value." (C. 296) (see Appendix 1). However, subsequent to June 2009 (after the Defendant's breath test was taken), 20 Ill. Admin. Code 1286(c) was amended, stating that the breathalyzer "must quantitate a reference sample within 10 percent of the reference sample value as adjusted for environmental factors." (C. 297) (see Appendix 2). The affidavits introduced by the State only showed that the breathalyzer was certified accurate according to the rules prior to the June 2009 amendment of 20 Ill. Admin. Code 1286.230(c). (see Appendix 1 and 2; see Appendix 3 and 4). The Defendant argued that, based on the holding in People v. Morris, the State must comply with the 2009 amendment of 20 Ill. Admin. Code 1286.230(c) to lay the foundation for the breath test at the time of trial and had not shown compliance. 394 Ill.App.3d 678, 682, 917 N.E.2d 1, 5 (Ill. App. 2 nd Dist., 2009). Therefore, the Defendant moved to strike the results of the breath test because the State never laid the proper foundation for the breath test according to the law in effect at the time of the Defendant's trial. (C. 294 - 301).

After arguments from both parties, the Trial Court found that the State had not shown compliance with the applicable rule (20 Ill. Admin. Code 1286.230(c) (2009)) at the time of trial, which was consistent with the holding in People v. Morris. (C. 366). Based on the ruling, the State made a motion to reopen their proofs since the breath test was stricken after it rested. (C. 366 - 367). The Trial Court granted the State's request to re-open the proofs and the State subsequently asked for a continuance until the next day to "analyze this based on this unanticipated ruling by the court." (C. 367).

When the trial resumed on November 4, 2010, the Trial Court asked if the State had any witnesses to call. (C. 373). The State responded by filing a certificate of impairment. (C. 373). After the Trial Court asked the State again if it had any other witnesses to present, the State indicated "no, not at this time." (C. 373 - 374). The Defendant moved for a directed finding since the State had no more witnesses to present. (C. 375). However, the Trial Court declined to rule on the Defendant's motion for a directed finding because the State filed their Notice of Appeal instanter. (C. 380 - 389). The Defendant objected to the State's filing its Notice of Appeal and made the record that the State had no witnesses present in court at the time it filed its Notice of Appeal. (C. 381 - 386). The Trial Court allowed the State to file its Notice of Appeal and this Appeal followed. (C. 380).

ISSUES PRESENTED FOR REVIEW

I. WHETHER THE STATE CAN APPEAL AN EVIDENTIARY RULING DURING THE COURSE OF A TRIAL WHEN THE RULING DID NOT CONSTITUTE A SUPPRESSION OF EVIDENCE

II. WHETHER THIS COURT SHOULD UPHOLD THE TRIAL COURT'S RULING THAT REQUIRED THE STATE TO LAY THE FOUNDATION FOR THE DEFENDANT'S BREATH TEST PURSUANT TO THE LAW THAT WAS IN EFFECT AT THE TIME OF THE DEFENDANT'S TRIAL

STANDARD OF REVIEW

The Defendant does not concede that the State's Appeal is proper because the State is attempting to appeal an evidentiary ruling. People v. Flatt, 82 Ill.2d 250, 258, 412 N.E.2d 509, 512 (Ill. S. Ct. 1980). However, if this Court finds that the Appeal is proper, the issue is whether the Court was correct in holding that the rules in place at the time of trial govern the admissibility of the Defendant's breath test. This question should be reviewed de novo because the facts are not in dispute, and the issue involved is wholly a question of law. People v. Krueger, 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996). Thus, if found to be a proper appeal, this appeal should be reviewed under the de novo standard.

ARGUMENT

I. THE STATE'S APPEAL SHOULD BE DISMISSED BECAUSE THE TRIAL COURT'S RULING WAS ONLY EVIDENTIARY IN NATURE AND THEREFORE WAS NOT AN APPEALABLE ORDER

The Illinois Appellate Court is reluctant to allow midtrial appeals because "of their disruptive effect on ongoing trials and the burden they place on the defendant." People. Goodwin, 207 Ill.App.3d 282, 287, 565 N.E.2d 743, 747 (Ill. App. 2 nd Dist., 1991) (citing People v. Young, 82 Ill.2d at 244). In addition, "different rules apply to the appellate review of midtrial orders which result in the suppression of evidence." Id. However, during the course of a trial, the State cannot appeal evidentiary rulings that do not lead to the suppression of the evidence. People v. Flatt, 82 Ill.2d 250, 258, 412 N.E.2d 509, 512 (Ill. S. Ct. 1980)("it is suppression orders, as distinguished from evidentiary rulings, that are appealable by virtue of Rule 604"); People v. Bradley, 129 Ill.App.3d 177, 179, 472 N.E.2d 480, 483 (Ill. App. 1 st Dist., 1984). In the instant case, the Trial Court's ruling did not lead to the suppression of the breath test because it was illegally obtained or violated the Illinois or United States Constitution. (C. 375 - 379). The Trial Court granted the Defendant's motion to strike the results of the breath test because the proper foundation had not been laid to admit the breath test according to the applicable rules at the time of the Defendant's trial. (C. 377). On this issue, the Trial Court stated,

"The State has presented their case-in-chief. They presented their evidence. At the conclusion of the case, after they rested, the defense made a motion to strike certain portions of the evidence. The Court has granted that evidence. It's missing. It's missing because of foundational purposes. And that the ruling on the striking of evidence is for foundation purposes only." (C. 377).

Clearly, the Trial Court is not suppressing the evidence, but informing the State that it has not yet met the evidentiary (i.e. foundational) requirements to introduce the breath test. (C. 377). Subsequent to this finding, the Trial Court allowed the State to re-open its proofs and the State was given the opportunity to present the necessary foundation. (C. 366). The Trial Court even granted the State's request for a continuance to the next day to obtain any witness or evidence it needed to properly lay the foundation. (C. 369). However, the next day, the State produced no further evidence, refused to rest its case, and instead filed a certificate of impairment with a notice of appeal. (C. 373 - 380). The State could have admitted the necessary foundation to admit the breath test, but instead, it chose to appeal the evidentiary ruling. (C. 373 - 380). Therefore, the final ruling did not result in suppression of the breath test and it cannot be appealed pursuant to Supreme Court Rule 604. Flatt, 82 Ill.2d at 258.

The facts of the instant case are closely analogous to the circumstances in People v. Bradley. 129 Ill.App.3d at 178 - 179. In Bradley, the State attempted to admit the defendant's blood results at a DUI trial by calling a witness to testify to the alcohol content of the defendant's blood. Id. at 178. The defendant objected to the testimony because the witness lacked the necessary permit by the Illinois Department of Public Health to testify to that issue. Id. The trial court granted the defendant's objection and held that the State's witness was incompetent to testify unless the State could show that the witness possessed the necessary permit. Id.

The State subsequently appealed and the Appellate Court stated,

"Initially, the State argues that it may appeal from a midtrial order preventing the admission of evidence as long as certification is made to the trial court that the State's ability to proceed with the case has been substantially impaired by such an order. As a general proposition, this argument is incorrect, for the threshold inquiry is always whether the trial judge's interlocutory ruling had the substantive effect of "suppressing evidence," as that term is used in Supreme Court Rule 604(a)(1)." Bradley, 129 Ill.App.3d at179.

The situation in Bradley is similar to the Defendant's case because the state was unable to provide the necessary foundation to admit the blood test evidence for lack of foundation. Id. at 178. Therefore, consistent with the ruling in Bradley, the evidentiary ruling in the Defendant's case is not appealable either. Id.

In its brief, the State improperly relies on the case of People v. Goodwin to stand for two propositions. 207 Ill.App.3d at 282; (see State's Appellate Brief pp. 10 - 13). First, the State cites Goodwin to support their argument that it could appeal the Trial Court's ruling midtrial because the stricken evidence involved the interpretation of a "statutory prohibition," a "violation of a court rule," or "some other ground besides recognized rules regarding the admissibility of the evidence." [emphasis added] (see State's Appellate Brief p. 10). However, the Trial Court's ruling did not involve a statutory prohibition or a violation of a court rule. (C. 377). Simply, the breath test was not admitted because the evidentiary foundation was not laid to admit the breath test. (C. 377). Therefore, the case cited by the State stands for the proposition that it could not appeal the evidentiary ruling midtrial. Goodwin, 207 Ill.App.3d at 282.

Secondly, the State cites Goodwin to suggest that the Defendant should have raised a pre-trial motion (i.e. a motion in limine or a motion to suppress evidence) to exclude the Defendant's breath test prior to trial. (see State's Appellate Brief p. 12); Goodwin, 207 Ill.App.3d at 290. The State claims that the Defendant should have brought forth a motion to suppress the breath test because the Defendant "knew that the State is obliged to offer the certification of the evidentiary breath instrument into evidence." (see State's Appellate Brief pp. 11 - 12). However, the Defendant's argument relates to the reference values used to test the accuracy of the breathalyzer which were documented on the two affidavits (State's exhibits 8 and 9) that the State introduced into evidence. (C. 170); (Appendix 3 and 4). The Defendant objected to the State introducing the affidavits because the exhibits were not disclosed to him until the trial. (C. 159). After the objection, the State conceded that it had not provided the affidavits in discovery and argued that it was not even required to disclose them to the Defendant. (C. 160). Therefore, how can the State claim that the Defendant should have anticipated the evidence (enough to file a pre-trial motion to suppress) when the Defendant was unaware that the documents even existed until the State presented it to the witness at trial?

Furthermore, even if the Defendant was aware, the Trial Court's ruling did not suppress the breath test. (C. 377). Therefore, unlike Goodwin, (where the trial court simply struck the witness' testimony) the State was permitted to reopen their proofs and had the opportunity to lay the proper foundation to admit the evidence. Goodwin, 207 Ill.App.3d at 288; (C. 366). When the Trial Court asked the State, "Does the State have another witness to present after the Court exercised its discretion granting you leave to reopen the proofs?" the State responded, "Not at this time, Judge, no." (C. 374 - 375). Accordingly, the State's appeal should be dismissed because it is improper to appeal a midtrial evidentiary ruling that did not result in the suppression of the Defendant's breath test. People v. Flatt, 82 Ill.2d at 258.

II. THE APPELLATE COURT SHOULD AFFIRM THE TRIAL COURT'S RULING THAT THE 20 ILL. ADMIN. CODE 1286.230(c) RULES IN EFFECT AT THE TIME OF TRIAL APPLY TO THE DEFENDANT'S CASE

In 2009, the Illinois rules regarding the method for checking the accuracy of approved breathalyzer devices was changed. 20 Ill. Admin. Code 1286.230(c) (2009). Prior to 2009, the "approved evidentiary instruments must quantitate a reference sample within plus or minus 0.01 BrAC of the reference sample's value." [emphasis added] 20 Ill. Admin. Code 1286.220(c) (2004)(see Appendix 1). As of June 4, 2009, section 1286.220(c) states that the "approved evidentiary instruments must quantitate a reference sample within 10 percent of the reference sample's value, as adjusted by environmental factors." [emphasis added]. 20 Ill. Admin. Code 1286.230(c) (2009). By changing the target value to check the accuracy of the breathalyzer, the 2009 amendment requires the BAT to test the accuracy of the breathalyzer differently. Id. Therefore, if a breathalyzer's accuracy check is not performed under the current rules, the result of the breath test is not admissible. People v. Larsen, 323 Ill.App.3d 1022, 1026, 753 N.E.2d 378, 382 (Ill. App. 4 th Dist., 2001)("the results of chemical tests in cases involving driving under the influence of alcohol are admissible only when there is compliance with section 11-501.2 of the Code.").

A. The ruling in People v. Morris holds that the 2009 amendment to 20 Ill. Admin. Code 1286.230(c) applies to the Defendant's case because it was the rule in place at the time of the Defendant's trial.

The rules in effect at the time of trial govern the admissibility of a breath test. People v. Morris 394 Ill.App.3d 678, 682, 917 N.E.2d 1, 5 (Ill. App. 2 nd Dist., 2009); (C. 1). In Morris, the Defendant filed a motion in limine to suppress the results of the defendant's blood test. 394 Ill.App.3d at 679. The defendant argued that the results were inadmissible because the disinfecting swab used to draw the defendant's blood contained levels of alcohol, which was a violation of 20 Ill. Adm Code 1286.320(c) (the same code at issue in the instant case). Id. At the time the defendant's blood was drawn, the relevant section stated, "A disinfectant that does not contain alcohol shall be used to clean the skin where a sample is to be collected." Id. However, at the time of trial, the same administrative code had been amended, stating that "the blood sample should be drawn using proper medical technique." Id. at 680. Essentially, the defendant was arguing for the suppression of the blood test because the swab used to test the defendant did have alcohol; therefore, suppression was warranted for lack of compliance with the administrative rules on blood testing at the time his blood was taken. Id. The trial court granted the Defendant's motion and barred the results of the blood test because the amendment to 20 Ill. Adm Code 1286.320(c) occurred after the Defendant's blood was drawn. Id. at 408; Id. at 682. The 2 nd District Appellate Court overruled the trial court and held that it should have applied the amended version of 20 Ill. Adm. Code 1286.320(c) that only required that the blood be drawn with "proper medical technique," despite the fact that the law was not in place at the time of the defendant's blood draw. Id. at 682.

The facts and law of the Morris case closely mirror the Defendant's case. First, both cases involve 20 Ill. Admin. Code 1286 and its application to chemical evidence obtained from a DUI case. Morris, 394 Ill.App.3d at 682. Second, both cases concern how post-arrest amendments to the code apply to a defendant's case at the time of trial. Id. Third, they both involve how amendments affect the procedure in laying the foundation for the admission of a chemical test (i.e. breath test for Defendant/Appellee and blood test for Morris). Id.

Therefore, under the principles of stare decisis, this Court should extend the ruling in Morris to the Defendant's case (just as the Trial Court did) and deny the State's request to overrule the Trial Court's ruling. People v. Williams, 235 Ill.2d 286, 294, 920 N.E.2d 1060, 1065 (Ill. S. Ct. 2009) (citing People v. Colon, 225 Ill.2d 125, 866 N.E.2d 2007 (2007) (The doctrine of stare decisis "expresses the policy of the courts to stand by precedents and not disturb settled points."); (C. 376). Furthermore, the 5 th District relied on the 2 nd District's ruling in Morris in People v. Strind when the defendant argued that the results of the blood and urine test should not be admissible because the tests were not performed in accordance with the rules at the time of the collection, despite the fact that an amendment allowed the evidence to be admitted at the time of trial. 933 N.E.2d 1197, 1208, 342 Ill.Dec. 904, 915 (Ill. App. 5 th Dist., 2010) ("Accordingly, the reasoning in Morris leads to the conclusion that the trial court's ruling allowing the results of the blood and urine sample to be admitted into evidence was proper.").

The only significant difference between Morris and the Defendant's case is that the Morris ruling prevented that defendant from suppressing the blood test for lack of compliance with 20 Ill. Adm. Code 1286.320(c), whereas here, the State claims that the Trial Court's ruling prevents the State from introducing the Defendant's breath result. Morris, 394 Ill.App.3d at 682; (State's Appellate Brief, p. 7). The State is essentially asking to "have its cake and eat it too." In Morris (which occurred in the same county of DuPage with the same DuPage State's Attorney's Office), the State urged the court to apply the rules at the time of trial. 394 Ill.App.3d at 680. However, now when the rules at the time of trial work against the State, it argues that the Trial Court should apply the rules at the time of breath test. (C. 316 - 318). Sometimes, rules of law work in this manner; they can benefit the parties in one circumstance, and hinder them in other circumstances. Now that the State is hindered by the very law that it argued for in Morris, it hypocritically urges this Court to rule the opposite way. (see State's Appellate Brief); (C. 316 - 318). Based on the legal principle of stare decisis, the Appellate Court should affirm the Trial Court's ruling because the holding in People v. Morris is controlling in the Defendant's case. Morris, 394 Ill.App.3d at 682

B. The case of Edison v. Commonwealth is not analogous to the Defendant's case and does not govern the admissibility of the breath test.

In its brief, the State relies heavily on the Illinois Supreme Court case Edison v. Commonwealth in support of its contention that the 2009 amendment to 20 Ill. Admin. Code 1286.230(c) is not the applicable law at the time of the Defendant's trial. 196 Ill.2d 27, 749 N.E.2d 964, (Il. S. Ct. 2001). (see State's Appellate Brief pp. 14 - 20). However, the facts and circumstances of Edison are not even remotely analogous to the Defendant's case. Id. In addition, even if one were to assume that the legal principles somehow translated to the Defendant's case, the holding in Morris is more applicable to the Defendant's case because it was decided after the Edison. (The Morris decision was made in 2009 and the Edison decision was in 2001). Morris, 394 Ill.App.3d at 678; Edison, 196 Ill.2d at 27. Therefore, by holding that the rules at trial, and not the rules at the time of test, applied to the defendant's case in Morris, the 2 nd District implicitly held that the Edison ruling did not apply to the facts in Morris. Morris, 394 Ill.App.3d at 678; Edison, 196 Ill.2d at 27.

The issue on appeal in Edison was "whether the tax rate amendments to section 5-1024 of the Counties Code and section 9-107 of the Tort Immunity Act should be applied to levies that were adopted by Will County for its workers' compensation and tort immunity defense funds approximately six weeks before the amendments became effective." Even at first glance, the issues in Edison and Morris are drastically different. The issue of whether a tax rate amendment applies to levies in a civil case is substantially different than whether an amendment to the rules that govern a breath test apply to a criminal defendant at the time of trial. In addition, Edison involves the distribution of money. Edison, 196 Ill.2d at 27. In the Defendant's case, the issue is whether the statutory foundational requirements were met to admit a breath test into evidence. (C. 375 - 376). The facts in Morris involve the same charge (DUI), the same administrative code (20 Ill. Adm. Code 1286), the admission of a chemical test subsequent to a DUI arrest (i.e. a breath test in the Defendant's case and a blood test in Morris), and whether an amendment made to 20 Ill. Adm. Code 1286 subsequent to the defendants' arrest applies at the defendants' trials. (C. 292 - 394); Morris, 394 Ill.App.3d at 678 - 682. The facts, law, and application of 20 Ill. Adm. Code 1286 in Morris are directly analogous to the Defendant's case. The State is attempting to use a case that applies the principle of ex facto law in support of their position, despite the fact that the facts and circumstances are much different than the Defendant's. (see State's Appellate Brief pp. 14 - 20). The State is attempting the legal equivalent of trying to fit a square peg in a round hole; no matter how hard one tries to squeeze the peg into the round hole, it is still a square peg.

III. THE DEFENDANT'S UNDERYLING CRIMINAL CASE SHOULD BE DISMISSED BECAUSE THE STATE'S APPEAL WAS IN BAD FAITH AND DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL

If this Court finds that it lacks jurisdiction to hear the State's Appeal, or that the Trial Court's ruling was correct in denying the admission of the Defendant's breath result without proper foundation, then the Defendant requests this Court to dismiss the criminal charges against the Defendant because the midtrial appeal denied the Defendant the right to a fair trial. In essence, the Defendant believes that the State's Appeal was not made in good faith. Instead, the Defendant believes the State used the appeal process to avoid a dismissal of the charges, a finding of not guilty because the evidence was insufficient, or as a delay tactic to obtain evidence that they were unable to produce at trial.

At trial and in its brief, the State urged the Trial Court and the Appellate Court to ignore a 2 nd District case ( People v. Morris) that originated in the very same county as the Defendant's case. Furthermore, the State took the position in Morris that the rules at the time of trial applied to the defendant's case and not when his blood was drawn. Morris, 394 Ill.App.3d at 680. However, in the Defendant's case, they urge the Trial Court and the Appellate Court to ignore a case that is only a year old because the State is now unhappy with the application of the law. (C. 316 - 318). The State's appeal is frivolous. It should not be rewarded for using a fictitious appeal to buy time to produce witnesses and use the Appellate Court to obtain "play-by-play" instructions on how to admit a breath test in the middle of a trial.

Therefore, the Defendant requests this Court to dismiss all criminal charges against the Defendant because the State's midtrial appeal deprives the Defendant of a fair trial. People v. Lawson, 67 Ill.2d 449, 455, 367 N.E.2d 1244, 1246 (Il. S. Ct. 1977). Alternatively, if this Court chooses to not dismiss the charges, the State should be barred from introducing any additional evidence or witnesses not previously produced at trial on this issue.

CONCLUSION

WHEREFORE, the Defendant prays that this Honorable Court to dismiss the State's Appeal for lack of jurisdiction because the State cannot appeal an evidentiary ruling. Alternatively, if this Honorable Court finds that there is jurisdiction, the Defendant prays that this Honorable Court affirm the Trial Court's ruling that the rules in place at the time of trial govern the admissibility of the Defendant's breath test. In addition, the Defendant prays that this Honorable Court dismiss all the charges against the Defendant or bar the State from introducing any additional evidence on the issue of the Defendant's breath test.

APPENDIX

ITEM

EXHIBIT

20 Ill. Admin. Code 1286.230(c) (2004)

1

20 Ill. Admin. Code 1286.230(c) (2009)

2

Affidavit Illinois State Police Breath Analysis Instrument 2-17-09

3

Affidavit Illinois State Police Breath Analysis Instrument 4-15-09

4