Challenging Breathalyzer Test Evidence at Summary
Suspension Proceedings due to the failure of the Officer to “Continuously
Observe” the Defendant for 20 Minutes.
Jennifer Wirth
A summary suspension proceeding is a civil proceeding in
which the defendant bears the initial burden of proof to establish a prima
facie case for recission. People v. Orth, 124 Ill.2d 326 (1988); People v. Thill,
297 Ill.App.3d 7 (2d Dist. 1997).
Pursuant to 5/11-501.1 of the Illinois Vehicle Code, as well as
applicable case law, a suspension may be rescinded based on the grounds that
the Defendant submitted to the requested test, but the test sample did not
indicate a blood alcohol concentration of 0.08 or more and/or that the test was
inaccurate or unreliable. 625 ILCS 5/11-501.1. Thill,
297 Ill.App.3d at 248.
A prima facie case that the breath test results are unreliable is made
by the mere showing of noncompliance with the breath test guidelines while
administering the test. People v. Miller, 219 Ill.App.3d 246 (3d Dist. 1991).
On January 1, 2001, Public Act
91-828, §5, transferred the authority to promulgate the standards for chemical
testing in Driving under the Influence (“DUI”) cases from the Illinois
Department of Public Health (“IDPH”) to the Illinois State Police under Section
5/11-501.2 of the Illinois Vehicle Code.
P.A. 91-828 (2001); 625 ILCS 5/11-501.2 (2003). As a result of this change, all of the
relevant case law on “continuous observation” in breath testing makes reference
to the former IDPH Standard. As the
applicable text of State Police Guideline 1286.310 remains identical to the
former IDPH standard, the former case law remains instructive.
Section 11-501.2 of the Illinois
Vehicle Code governs the admission of chemical tests in summary suspension proceedings. 625 ILCS 5/11-501.2 (2003). The relevant text of 11-501.2 states that “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 the Standards promulgated by the Department of State Police… The
Director of the State Police is authorized to approve satisfactory techniques
or methods, to ascertain the qualifications and competence of individuals to
conduct such analyses, to issue permits which shall be subject to the
termination or revocation at the discretion of that Department, and to certify
the accuracy of breath testing equipment.
The Department of State Police shall prescribe regulations as necessary
to implement this Section.” 625 ILCS
5/11-501.2(a)(1) (2003).
Pursuant to the legislative mandate
of 11-501.2, the State Police adopted a set of guidelines, embodied in 20 ILCS
1286, to regulate the procedures that are employed when collecting test samples
from subjects. Under Section 1286.310 of
these guidelines, the drafters provide a clear directive on how test operators
should properly obtain a breath sample.
The relevant text of 1286.310 states:
“The following procedures shall be used to obtain a
breath sample to determine a subject’s BrAC with an approved evidentiary
instrument:
(a) Prior
to obtaining a breath analysis reading from a subject, the BAO or another
agency employee, shall continuously observe the
subject for at least 20 minutes.
1) During the 20 minute observation period the subject shall be
deprived of alcohol and foreign substances and shall not have regurgitated or
vomited.”
20 ILCS
1286.310(a) (2003). [Emphasis
Added]
The
rationale behind this guideline is that the ingestion of alcohol or food,
drinking, regurgitating, vomiting, or smoking within 20 minutes before taking a
breathalyzer test can cause an inaccurate blood-alcohol content reading. People v. Neville,
151 Ill.App.3d 679, 681 (3rd Dist. 1997). When adopting Section 1286.310 of the State
Police guidelines, the drafters intended to guard against the inaccuracy of
chemical test results by placing such stringent standards upon such
testing. Id. at 681.
Illinois courts often honor a police
officer’s “sporadic” observation when determining whether a subject was
“continuously observed” for the 20-minute period prior to breath testing. During the 20-minute time period, officers
may leave the room momentarily, fill out paperwork, or do a number of other
tasks. Although “substantial compliance”
with the “continuous observation” period has been upheld by the Illinois appellate courts, it should be
reconsidered as there is no evidence in the State Police Guidelines that
“substantial” observation is adequate prior to a breath test.
When interpreting the meaning of “continuous” observation,
the rules of statutory construction dictate that the intent of the drafters of
the regulation should be ascertained and given effect. Bonutti, 338
Ill.App.3d at 337. The best
indication of the intent of the drafters is the language of the
regulation. Id. at 337.
Clear and unambiguous terms should be given their plain and ordinary
meaning as written, without reading into it exceptions, limitations, or
conditions that the drafters did not express.
Id. at 337.
The requirement that a breath test
operator “continuously observe” a subject for at least 20 minutes prior to the
test is clear and unambiguous. It is
more than “intermittent” or “sporadic” observation of a subject. When interpreting what “continuous” means,
the relevant rules of construction are clear that no exceptions should be read
into the term to allow for any distraction during the observation period.
In People v. Bertsch, the appellate court affirmed the
trial court’s rescission of the Defendant’s summary suspension where the
officer failed to continuously observe the subject and the subject claimed that
he belched during the time prior to the test.
People v. Bertsch, 183 Ill.App.3d 23 (2d.
Dist. 1989).
During the recission hearing, the testing officer initially testified
that he wrote the Defendant’s traffic citations during the 20 minute
observation period. Id. at 24.
The Defendant then testified that he had belched during that time but
that he did not inform the officer as he was unaware that this may skew the
test results. Id. at 24.
In rescinding the statutory summary suspension, the trial judge
stated:
“… I have never heard of observation consisting of an
officer writing tickets while he is observing the man or moving from room to
room. …My recollection of the direct
examination of the officer originally was that first of all he was filling out
tickets within the twenty minutes of the test and secondly it was possible that
the defendant could have belched and he not have seen
it. …I take the testimony given
originally and that was he did not in fact have Mr. Bertsch [the Defendant]
under continuous observation for twenty minutes, whether or not this really had
any bearing on the test I don’t know. Evidently
the Department of Public Health thinks so because it is part of their rules and
regulations that the officer is supposed to continue the observation to observe
this.”
People v. Bertsch, 183 Ill.App.3d at 25 (2d. Dist. 1989). (Citing transcript of summary suspension
hearing) [Emphasis Added]
Ultimately,
the appellate court in Bertsch did not specifically address whether the
officer had violated the “continuous observation” requirement and affirmed
based on the fact that belching could have skewed the test results. Id. at 28. However, the ruling of the trial
court demonstrates that the guideline requirement of “continuous observation”
can be violated by the officer’s writing tickets during the 20-minute
observation period.
Defense attorneys need to vigorously
examine an officer at summary suspension proceedings to determine if he or she
did in fact “continuously observe” a subject prior to administering a breath
test. Officers commonly fail to strictly
follow this requirement and it is crucial to determining whether the breath
test result was accurate. Defense
attorneys should elicit the time frame from the officer of the observation
period and determine, what, if anything, the officer may have done during this
period that distracted them from continuously observing the defendant.
