Rule 23 Order filed

August 5, 1998;

Motion to publish granted

December 1, 1998.

NO. 5-96-0787

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

____________________________________________________________ _____

____________________________________________________________ _____

JUSTICE GOLDENHERSH delivered the opinion of the court:

This matter comes to the court on appeal from the circuit court of Williamson County, which suppressed evidence of a breathalyzer test given on defendant, Arthur R. Morris. The State timely filed a certificate of substantial impairment and a notice of appeal and argues in this court that the trial court's ruling excluding the breathalyzer test was manifestly erroneous. For the reasons given below, we affirm.

I. FACTUAL BACKGROUND

Defendant was arrested on March 25, 1995, and charged with improper lane usage and driving while under the influence of alcohol. An information charging the alcohol offense was subsequently filed in January 1996. Defendant's counsel filed a motion in limine to exclude the results of the breathalyzer test, arguing that the machine was not calibrated to standards required by State regulations and that the results given in units of concentration were not consistent with manufacturer recommendations for the machine, also mandatory under the State statute and regulations.

The circuit court conducted an evidentiary hearing on defendant's motion. Illinois State Trooper Steve Junk testified that he calibrated the machine, a model 5000 Intoxilizer, with a reference solution certified to render a reading of .10 plus or minus .01 on a properly operating machine. Defendant's counsel noted that the machine listed three digits for a readout and asked why the breathalyzer read only two figures as opposed to three. Trooper Junk replied that the State accepts two figures. He also testified that the sequence of operation on the breathalyzer was calibration and breath mode and the testing sequence did not end in an air blank. Ron Henson, after acceptance by the court as an expert witness, testified as to the range of deviation a two-digit readout would have when a sample was certified to a third-digit reading. The example used was that if a breathalyzer produced a reading of .09 on a sample certified as .101, the third digit of that .09 reading could be anywhere from 0 to 9. If the reading were 0 (.090), then the deviation from the standard would be .011. This deviation, Henson testified, is greater than the maximum deviation allowed by statute, being .01. He also testified that any machine that did not print out an air blank ending the sequence of operation was not being operated according to manufacturer's recommendations. He testified that this deviation from manufacturer's recommendations would violate regulations of the Illinois Department of Public Health. Henson testified that in his expert opinion defendant's breath test did not comply with the standard required by the Illinois Department of Public Health regulations. Trooper Junk was recalled by the State and testified that when he tested the reference sample certified as .10 plus or minus .01, the machine produced a reading of .09. He further testified that while the machine is capable of producing a three-digit reading, the third-place digit on the machine has never been turned on. Officer Les Higgins then testified that he conducted the breathalyzer test administered to defendant and that he was qualified to operate the machine on the date of testing.

The circuit court took the matter under advisement and received written memoranda from the parties. The circuit court, on November 9, 1996, entered an order granting defendant's motion. The State timely filed a notice of appeal and a certificate of impairment.

II. ANALYSIS

Defendant made two basic arguments to the circuit court and reiterates those arguments here. Those arguments are that the breathalyzer machine was not calibrated to the standards required by the State regulation and that the operation concerning units of concentration of alcohol was not consistent with regulations because it was inconsistent with manufacturer recommendations. The statutory basis relied upon by defendant is section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a) (West 1994)), which reads as follows:

"(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 ***, evidence of the concentration of alcohol, other drug[,] or combination thereof on a person's blood or breath at the time alleged, as determined by analysis of the person's blood, urine, breath[,] or other bodily substance, shall be admissible. Where such test is made[,] the following provisions shall apply:

1. 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 standards promulgated by the Department of Public Health in consultation with the Department of State Police ***. The Illinois Department shall prescribe regulations as necessary to implement this Section.

* * *

5. Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." 625 ILCS 5/11-501.2(a)(1), (5) (West 1994).

The administrative regulation promulgated pursuant to the above statute relied upon by defendant is section 510.60 of Title 77 of the Illinois Administrative Code:

"Procedures for breath alcohol analysis shall include the following requirements in conjunction with the testing of each subject:

* * *

d) Each test shall be performed according to an operational procedure approved by the Department which shall be based upon the manufacturer's recommended testing procedure." 77 Ill. Admin. Code