Find Legal Information

                                                                                                                               FOURTH DIVISION 

                                                                                                                               JUNE 28, 2001

1-00-0251)
1-00-0252) 
1-00-0253)
1-00-0256)
1-00-0257)
1-00-0258)
1-00-0259)
1-00-0897) Cons.

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

The State appeals the circuit court's grant of motions inlimine made by defendants David Larsen, Gregory Murphy, JosephCheslak, Matthew Kollios, Jesse Castillo, Walter Sternberg, JasonKomis, and Leslie Majors barring admission of the results ofdefendants' breathalyzer tests at trial. The State filed SupremeCourt Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)) certificates ofsubstantial impairment in each case. The sole issue raised by theState on appeal is whether the court properly excluded evidence ofthe breathalyzer tests based on the alleged improper certificationof the breathalyzer machines, in each of the consolidated cases.

Each defendant was charged with driving while under theinfluence of alcohol in violation of section 11-501(a)(2) of theIllinois Vehicle Code (the Code) (625 ILCS 5/11-501(a)(2) (West1998)) and driving while under the influence of alcohol with analcohol concentration of .08 or more in violation of section 11-501(a)(1) of the Code (615 ILCS 11-501(a)(1) (West 1998)). Whilein custody, each defendant submitted to a breathalyzer test,conducted on an Intoxilyzer 5000 machine, which resulted in breathalcohol concentrations (BAC) in excess of .08.⁽¹⁾ Each defendantmoved in limine to exclude the results of his breathalyzer testbased on People v. Morris, 301 Ill. App. 3d 603, 703 N.E.2d 923(1998) (Morris), alleging that the machines used to administer thetests were not in compliance with Illinois Department of PublicHealth (the Department) regulations.

The cases of defendants Larsen, Murphy, Cheslak, Kollios,Castillo, Sternberg, and Komis were consolidated for purposes of anevidentiary hearing on the motions in limine.

The State presented the testimony of Larry Etzkorn, thedivision chief for the alcohol and substance testing program forthe Department. Etzkorn described how the machines in the fieldwere tested monthly for accuracy, in compliance with Departmentregulations. Using a certified controlled reference solution(solution), inspectors would run the accuracy test twice and if theresults of each test fell within the plus or minus .01 standard themachine was certified as accurate. Etzkorn explained that thesolution is constituted of ethanol and water, created at either theState Police laboratory or the Department laboratory. Once a batchof the solution was created, it was tested by gas chromatograph toestablish the appropriate value. Both the State Police and theDepartment used a .08 solution. The Department cross-checked thesolution on either an Intoxilyzer 3000 or 5000, but both theDepartment and the State Police certified the solutions based onlyon the gas chromatograph reading. According to Etzkorn, theDepartment regulations refer to only two digits to the right of thedecimal point, in regard to both the subject test results and thecertification of machines. Prior to March 1, 1999, thebreathalyzer machines in Illinois were set to only two digits. After that date, he issued a directive to the inspectors to includethe third digit because of his inability to testify at theincreasing number of trials throughout the state in defense of themachines. He explained that the machine truncates any digitsbeyond the first two and does not round up to the next number.

The parties stipulated to the test result evidence, involvingeach defendant.

According to the Department, each solution used to test themachines was certified as .08 plus or minus .01, the .07 testresults thereby coming within the appropriate range and themachines, therefore, were properly certified.

Ronald Henson testified as an expert witness on behalf ofdefendants. According to Henson, batch 98-175 of the certifiedcontrolled reference solution, which was used to test the machinein Murphy's case, had a value of .096 when run on the gaschromatograph. The Department cross-referenced that solution onthe Intoxilyzer 5000 and obtained a reading of .081. In Henson'sopinion, a problem arose because a solution with a value of .081was used to certify the machine and the machine's test result was.07. Without identifying the third digit on the test result and,assuming the third digit was zero (it could be any number from 0 to9), simple arithmetic indicates that the result is a .011 variance(.081-.070=.011), which is a higher figure than Departmentregulations allow. He concluded that with regard to Murphy, therewas no way to ascertain whether the test was within the .01variance allowed by the Department regulation, because the test wasnot reported to the third digit.

Henson extended his theory to the other defendants' despitethe fact that batch 98-175 solution was not used to certify themachines in those cases. According to Henson, the variance in theother defendants' cases would be even higher than that in Murphy'scase because the gas chromatograph values obtained in the otherdefendants' cases ranged from .097 to .099, resulting in a readingin the Intoxilyzer 5000 greater than .081.⁽²⁾ He concluded thatwhere the test results were not reported to the third digit, it wasnot possible to draw a conclusion that the tests met the plus orminus .01 standard. In his opinion, defendants' breath tests didnot comply with the standard required by the Department.

Etzkorn testified that he conducted an epidemiological studyof the third digit issue, from March 1999 through June 1999, wherehe gathered all the information coming from the field using thestandard reports which are collected from inspectors, and hereviewed the third digit values that were displayed on thecertification ticket. In 1,010 test samples, a test inaccuracy orcertification that exceeded .01 never occurred. He found that therange of the tests were from a .006 positive to a .009 negativefrom the known solution. In response to questioning by the circuitcourt, Etzkorn admitted that it was mathematically possible for avariance of greater than .01 to occur, but that "[w]e are talkingsomewhere out in the one in a million, one in a billion theory." In his opinion, all the breath test certifications and machines inthese cases were appropriately certified as accurate and were incompliance with the Department regulations and the Code.

Etzkorn explained that the Morris decision was based on afalse premise that the sample solution was certified as .101. Heexplained that neither the Department nor the State Police haveever certified a solution other than a .10 plus or minus .01, or inthe present cases, .08 plus or minus .01.

The circuit court granted defendants' motions in limine. TheState's appeal followed.

Prior to his trial, Majors orally moved in limine to excludethe results of his breathalyzer test based upon Morris. Thecircuit court granted his motion without an evidentiary hearing. The State filed a certificate of impairment and a timely notice ofappeal in this case as well.

Generally, a circuit court's decision to grant a motion inlimine will not be reversed absent an abuse of discretion; where,as in the present case, the only issue before the reviewing courtinvolves a question of law, review is de novo. People v. Cady, 311Ill. App. 3d 348, 724 N.E.2d 549 (2000) (Cady).

The results of chemical tests in cases involving driving underthe influence are admissible only when there is compliance withsection 11-501.2 of the Code and the regulations promulgatedthereunder. People v. Kilpatrick, 216 Ill. App. 3d 875, 576 N.E.2d546 (1991) (Kilpatrick). Section 11-501.2(a)(1) prescribes thatchemical tests "to be considered valid *** shall have beenperformed according to standards promulgated by the Department ofPublic Health in consultation with the Department of State Police." 625 ILCS 5/11-501.2(a)(1) (West 1998).

Section 510.100(a) of the Illinois Administrative Codeprovides:

"An instrument must be accurate within plus orminus 0.01 W/V to be certified. To determineaccuracy of instruments, an inspector shallperform two analyses on a certified controlledreference sample at least once a month atintervals not to exceed 45 days. Theinspector shall record test results of hiscertification in the instrument logbook ***. The original certification test results willbe retained by the inspector." 77 Ill. Admin.Code