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People v. Thill

June 08, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ADAM R. THILL, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Thomas,

Appeal from the Circuit Court of Du Page County.

No. 96--DT--3768

Honorable Nicholas J. Galasso, Judge, Presiding.

JUSTICE THOMAS delivered the opinion of the court:

The defendant, Adam R. Thill, was charged with driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1996)) and driving with a breath-alcohol concentration in excess of .10 (625 ILCS 5/11- 501(a)(1) (West 1996)). The defendant's driving privileges were statutorily suspended after he submitted to a breath test, which revealed a blood-alcohol concentration of .11. The defendant filed a petition to rescind the statutory summary suspension of his license. The trial court granted his petition. The State appeals. We reverse.

Illinois state trooper Emmet Clifton testified at the defendant's rescission hearing that on October 21, 1996, at approximately 3:55 a.m., he stopped the defendant's vehicle for a traffic violation on westbound I-88. The trooper had observed the defendant's car weaving between several lanes and the shoulder of the highway. He followed the car for about one mile and saw it weave several times. After he stopped the defendant and approached him, the trooper noticed that the defendant had bloodshot and glassy eyes, slurred speech, and a strong odor of alcohol on his breath. The defendant then proceeded to fail four field-sobriety tests. Trooper Clifton was of the opinion that the defendant was under the influence of alcohol. Clifton transported the defendant to a police facility where the defendant submitted to a breath test at 4:43 a.m., which revealed that his blood-alcohol level was .11.

The defendant testified that he suffers from asthma and that he used a Ventolin inhaler on the night in question at about 6 p.m., 10 p.m., 3:15 a.m., and right before he was stopped by Trooper Clifton. The defendant denied that he was under the influence of alcohol.

Emmet Harmon testified as an expert on behalf of the defendant regarding the effect of albuterol on the breathalyzer used to test the defendant's breath, the Intoxilyzer 5000. Albuterol is an ingredient in the Ventolin inhaler used by the defendant. Harmon stated that the Intoxilyzer 5000 operates on principles of infrared absorption. Under this theory, organic substances absorb particular wavelengths of infrared light. The amount of absorption is proportional to the concentration of the substance in the path of the infrared light. According to Harmon, ethanol and albuterol fall within the same hydroxyl group tested by the machine, and it cannot differentiate between the hydroxyl compounds of ethanol and albuterol.

Harmon further testified that there are 81 cubic centimeters of air in the air chamber of the Intoxilyzer 5000. He stated that "through some mathematical technique" that amount is calculated to .10 grams of alcohol per 210 liters of breath. He then stated that .0000385 gram of an alcohol compound in 81 cubic centimeters of air would be equal to .10 grams of an alcohol compound in 210 liters of air. In other words, slightly less than four one hundred thousandths of a gram of alcohol would be equal to a .10 reading if it was placed inside the chamber of an Intoxilyzer 5000. Harmon indicated that .000038 gram is equal to 38 micrograms. Harmon then noted that 90 micrograms of albuterol is distributed in a person's lung chamber with one spray from a Ventolin inhaler. The maximum lung retention period for albuterol is approximately two to four hours. Harmon testified that, within a reasonable degree of analytical and chemical certainty, after subtracting any albuterol that measured on the Intoxilyzer 5000 the reading would not have equaled or exceeded .10. The State objected to Harmon's opinion, arguing that it lacked foundation. The trial court overruled the objection.

On cross-examination, Harmon testified that the Intoxilyzer 5000 calculates the concentration of a compound in the air chamber based on the infrared absorptivity unique to the particular compound in the chamber. The machine is designed to make its calculation based specifically on the absorptivity of ethanol, a factor that is programmed into the instrument by calibration. Harmon admitted that ethanol has a specific infrared absorptivity that is different from the absorptivity factor for albuterol. Harmon acknowledged that he did not know the absorptivity factor for albuterol.

Harmon further testified on cross-examination that the partition ratio has an effect on the calculation made when albuterol is in the chamber of the Intoxilyzer 5000. The ratio is the factor used to convert breath-alcohol concentration to blood-alcohol concentration. Harmon conceded that the partition ratio for ethanol is 2,100 to 1, is unique to ethanol, and is programmed into the computer. He acknowledged that, if a different substance was in the machine with a different partition ratio of, for example, 1 to 1, the machine would be in error by a factor of 2,100. Harmon admitted that he did not know the partition ratio for albuterol. On redirect examination, Harmon explained that the machine reads albuterol as ethanol and would use the partition ratio of ethanol in its calculation. He further noted that the partition ratio for albuterol is not a factor because it relates to the amount of albuterol in the blood and the Intoxilyzer 5000 only reads the albuterol that is introduced into the lungs as if it were ethanol.

During the course of Harmon's testimony, the defendant introduced into evidence defendant's exhibit No. 3, the manufacturer's product information insert for albuterol. The insert prescribes that patients take no more than a two-spray dose every four to six hours. About 90 micrograms of albuterol is dispensed in a single spray. The insert notes that 72% of the inhaled dose is eliminated in the urine within 24 hours. It also notes that animal studies show that albuterol does not pass the blood-brain barrier.

The trial court granted a motion by the defendant to strike certain questions asked and answers given during the State's cross-examination of Harmon. The defendant had argued that the State was unable to prove up the facts inferred from the State's cross-examination of Harmon. The trial court also sustained the defendant's objections to the State's arguments regarding the stricken testimony and prohibited the State from further arguing the lack of proper foundation for Harmon's testimony. After hearing all the remaining evidence and considering the closing arguments, the trial court granted the defendant's petition to rescind the statutory summary suspension of his driving privileges.

On appeal, the State argues that (1) the trial court erred in striking evidence in the record that showed that Harmon's testimony lacked an adequate foundation; (2) absent the requisite foundation, Harmon's opinion should have been excluded; and (3) given the inadmissibility of Harmon's opinion, the trial court erred in ...


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