Beat Illinois Breath Tests: Foreign Substances and Breathalyzer Testing
By Donald J. Ramsell
MEMBER, AMERICA’S TOP DUI &
DWI DEFENSE ATTORNEYS TM
ILLINOIS CRIMINAL DEFENSE CASES
Several defenses to the validity of breath tests exists as a result of the ingestion of foreign substances by an arrestee prior to the taking of a breathalyzer test, even if the ingestion occurs outside the 20 minute observation period.
In People v. Kamide (2nd District 1993), 254 Ill, App. 3d 67, the appellate court was asked to review a conviction for driving with a BAC of .10 or more where the defendant claimed that the result of the breath test was skewed because he ingested Ventolin, a common asthma inhaler over a several hour period prior to taking the test. Ventolin contains a form of alcohol which does not impair an individual, but will still register as alcohol on breathalyzer machines. The methodology employed by the Intoximeter 3000 and Intoxilyzer 5000 will register all forms of alcohol, not just ethanol. Since the only type of alcohol which is prohibited by the DUI laws is ethanol (77 Ill.Admin. Code 510.20 (Definitions)), the appellate court reversed Kamide’s conviction and remanded the case for a new trial, where the jury must be specifically instructed that the state must prove that the defendant drove with an ethanol result of .10 or more, excluding asthma spray.
The new IDPH Standards for Breath Testing (77 Ill.Admin. Code 510) have added several provisions to the standards regarding foreign substances.
Section 510.60 prohibits the ingestion of alcohol or a foreign substance during the 20 minutes prior to the breath test.
Section 510.20 defines foreign substance as “any substance not presently in the subject’s body, excluding those due to normal breathing.”
Section 510.20 defines ingested as “eaten, chewed, swallowed or consumed by mouth in any other manner; inhaled, sniffed, snorted, sprayed or introduced into the breathing passages in any other manner; injected or introduced into the body in any manner.”
According to the expert in Kamide, asthma spray ingested several hours prior to a breath test will still register on a breath instrument due to its delayed half-life and its chemically enhanced retention periods.
Lacquer fumes and paint solvents will also skew the results of breath tests. In a study reported in the Journal of Analytical Toxicology, Vol. 12 (May/June 1988), a 35-year-old, healthy male using a spray mask was exposed to Tru-Test Lacquer Thinner for a 20 minute period. One hour later, he registered a .07 on an Intoxilyzer 5000. He was then exposed to lacquer fumes for a five minute period without a spray mask and registered .00. Similarly, in a 1986 study, a 52-year-old cabinet maker with a 20-year history of exposure to lacquer and paint thinners worked a full eight hour shift. One hour after completing work, a blood alcohol test resulted in 0.00. A virtually simultaneous breath test on an Intoxilyzer 5000 resulted in readings of 0.36 and 0.31 (interferent subtracted). Twelve minutes later the breath test result was 0.273 and 0.245 (interferant subtracted).
In a Rule 23 opinion, People v. Gray (3rd District 1993), Slip Opinion No. 3-93-077, the trial court rescinded a summary suspension and suppressed the results of a female’s breath test. There, the defendant registered a 0.14 on a breath machine. The defendant had been injured in an auto accident and testified that she had a gash to her lower lip which was still bleeding when she submitted to the breath test. The former chief of the Illinois Department of Public Health Division of Alcohol and Substance Testing testified that blood in the mouth would possibly contaminate a breath sample. Further, he stated that when a person has blood in the mouth, the department recommends blood or urine testing rather than a breath analysis even though there is not a rule or regulation requiring such a procedure. The appellate court affirmed the rescission of the summary suspension and the suppression of the breath test analysis.
In People v. Case (2nd District 1996), Rule 23 Slip Opinion No. 2-95-1592, the issue of whether dentures or dental adhesive is a foreign substance and whether its presence affects the results of a breath test was at issue. The record revealed that an IDPH training instructor testified to governmental studies by Colorado and Wisconsin, subfunded by the manufacturers, which showed that dental adhesive will retain alcohol beyond the 20-minute mark and result in inaccurate breath alcohol readings. The trial court barred the expert’s testimony and denied the defendant’s petition to rescind on the grounds that dentures have been held to not invalidate breath alcohol results as a matter of law, relying on the case of People v. Witt (2nd District 1994), 258 Ill. App. 3d 124, 630 NE.2d 156, 196 Ill. Dec. 459.
The state also argued that the expert’s testimony should be barred as an impermissible collateral attack on the validity of the Illinois Department of Health breath test regulations. The defendant appealed the trial court’s rulings.
On appeal, the appellate court in Case held that a defendant has the right to attack the accuracy or reliability of a breath test. The Case opinion distinguished Witt, stating the defense of dentures or dental adhesive is valid, so long as a proper foundation for the proof of inaccuracy is made. The Case opinion stated that Witt only stood for the proposition that a denture defense cannot be used when the defense fails to introduce evidence that dentures affect breath tests; the defense attorneys in Witt had failed to produce such evidence. The Case opinion rejected the state’s argument that experts cannot attack the validity of a breath test, even when the test complies with IDPH regulations. The appellate court held that the trial court erred in barring the dental adhesive defense.
Despite ruling that the trial court erred in barring the expert’s testimony regarding dental adhesive, the appellate court still affirmed the denial of Ms. Case’s summary suspension petition. The appellate court found that the failure of the expert to specify that a proper test would have resulted in less than .10 rendered the foundation for his testimony inadequate, and denied the petition on these grounds.
In conclusion, several defenses to breath tests have been recognized in Illinois, due to “foreign substances” such as asthma spray, dentures, dental adhesives and blood.