People v. Dunnigan, Nos. 5-99-0242 and 5-99-0277, cons.

5th District, 20 April 2000

JUSTICE RARICK delivered the opinion of the court:

Each of the defendants involved in these two cases was charged with driving under the influence of alcohol. Each filed amotion to exclude or suppress the results of his or her breathalyzer exam, based on People v. Morris, 301 Ill. App. 3d 603,703 N.E.2d 923 (1998), alleging that the instrument used to test their breath, the Intoxilyzer 5000, was not operated inconformity with the Illinois Administrative Code. In each instance, the defendant's motion was granted. The State appeals,contending the trial court erred in excluding and suppressing the test results. We agree and therefore reverse.

In People v. Orth, 124 Ill. 2d 326, 530 N.E.2d 210 (1988), our supreme court stated that the foundational requirements forthe admission of a breath-analysis result include:

"(1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department ofPublic Health, (2) evidence that the operator administering the tests was certified by the Department of PublicHealth, (3) evidence that the machine used was a model approved by the Department of Health, was tested regularlyfor accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutesprior to the test and, during this period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that theresults appearing on the 'printout' sheet can be identified as the tests given to the motorist." 124 Ill. 2d at 340, 530N.E.2d at 216-17.

At the hearings on defendants' motions, the State presented the testimony of Larry Etzkorn, the division chief for healthcare regulation public services for the Illinois Department of Public Health. Mr. Etzkorn was the draft author of theregulations regarding the approval and certification of breathalyzer machines. His responsibilities also includeddetermining whether or not an instrument such as the Intoxilyzer 5000 should be approved for use by the Department ofPublic Health. Mr. Etzkorn, accepted as an expert witness on matters pertaining to breath analysis and the Intoxilyzer 5000machine, testified that during every breath test the Intoxilyzer 5000 will run an "internal standard" with that standard set at.01. If the instrument should deviate during the testing cycle in excess of .01, the test cycle or breath test will be abortedautomatically. He further stated that after performing hundreds of tests on the machine with the third digit turned on,analysis of the resulting data showed that the probability of the existence of the hypothetical situation which prompted thedecision in Morris, namely, that a mathematical discrepancy with a range above that allowed by the regulations (plus orminus 0.01), was so small as to be nonexistent. He further testified that when the third digit of the instrument is turned off,it is simply truncated and does not influence the second digit at all. According to Mr. Etzkorn, there is no manufacturerrecommendation with regard to the use of a third digit, and the standard procedure for the Department of Public Health hasalways been using two digits to the right of the decimal point on the instruments. Mr. Etzkorn also explained that theMorris decision was based upon a false premise that the sample solution was certified as 0.101 rather than in reality beingcertified at 0.10 plus or minus 0.01. Without the false premise, Mr. Etzkorn concluded that the Morris assumption of a testhigher than the acceptable margin of error could not exist. With regard to the second air blank, Mr. Etzkorn testified thatneither the regulations nor the operating manual for the Intoxilyzer 5000 requires that the second air blank be printed.According to Mr. Etzkorn, the machine automatically performs the second air blank even though the result is not printed.If the second air blank is not done, no test result will be printed. Mr. Etzkorn explained that the purpose of the second airblank is not to detect interferant that could influence a test result but rather to purge the machine of the corrosive effect ofalcohol on the instrument.

Looking at the plain language of the regulations, the acceptable margin of error on a breathalyzer machine is plus or minus.01. See 77 Ill. Adm. Code