Appeal from the Circuit Court for the 14th Judicial Circuit Whiteside County, Illinois No. 98-DT-220ST Honorable Dana McReynolds Judge Presiding
The opinion of the court was delivered by: Justice Koehler
The State appeals the Whiteside County circuit court's grant of defendant David L. Cady's motion in limine barring admission of the defendant's breath-analysis result. This court must decide whether the circuit court erred when it concluded that the State had not met its burden to show that the breathalyzer unit used to test the defendant's breath had not been properly certified as accurate pursuant to the statute and applicable regulation. See 625 ILCS 5/11-501.2(a)(1) (West 1998); 77 Ill. Adm. Code § 510.100(a) (1996). Because we conclude that the State met its burden, we reverse and remand.
The State charged the defendant, David L. Cady, with two counts of driving under the influence of alcohol (DUI) after he agreed to take the requested breath test which produced a .11 result. The first count charged that the defendant's alcohol concentration was greater than .08 (625 ILCS 5/11-501(a)(1) (West 1998)), and the second count charged the defendant with physical control of a vehicle while under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 1998)). Prior to trial, the defendant moved in limine to bar the admission of his breath-analysis result.
At the hearing, Steven Denay, an Illinois state trooper, testified that he was licensed to certify breathalyzer machines and, on August 28, 1998, he performed a certification test on the Rock Falls police department's Intoximeter 3000 model breathalyzer machine using a wet simulator solution.
After the solution was properly heated, Denay did a standard check and connected the instrument to his simulator solution, typed in the codes, and proceeded to perform the standards check using the following codes:
(1) .08 simulator solution, and (2) solution No. 98-175. Denay testified that typing in the simulator solution value provided the machine with a target value. Denay performed the test, and the machine registered a .07 external standard. When Denay performed two other tests on the actual breath tube, the results were also .07. On September 18, 1998, Denay again tested the machine and obtained identical results. Denay used the same solution to test the Intoximeter 3000 both times.
Denay further testified that the Department of Public Health (Department) standard for an acceptable variance for testing the accuracy of breathalyzer machines is a plus or minus .01. Any test that results in a greater or lesser variance than the accepted .01 means that the machine will not be certified as accurate. The Intoximeter 3000 model does not provide for a certification greater than plus or minus .01. Instead, it will read either high abort or low abort.
Denay produced the Department's certificate for solution No. 98-175, which indicated that the laboratory analysis found the value of the solution to be .081, a mean result obtained after performing several tests on the standard solution using an Intoxilyzer 5000. Moreover, the certificate indicated and Denay testified that the Department had set the acceptable accuracy range as from .070 to .090 and the sample bottle he used when testing the Rock Falls breathalyzer unit was labeled as containing a 0.08 solution.
Ronald Henson next testified as an expert witness for the defendant. He testified that the initial process when testing a breathalyzer machine for its accuracy requires identifying whether two or three digits are being used to perform the test. He opined that a test using a simulator solution of .081 and producing a .07 result would not be in conformance with the Department's regulations. Moreover, he testified that the Intoximeter 3000 could be calibrated to provide a third-digit reading. Although Henson believed that a third-digit readout was relevant, he noted that the Department did not have a standard requiring a third-digit readout. Further, Henson stated that the standard said .01 and it did not say two digits. He additionally testified that the Intoximeter 3000 had a built-in safeguard to insure against improperly certifying the breathalyzer machine. Accordingly, the machine would read low abort if it tested too low for the solution being used. Henson testified that the breathalyzer machine does not round off any reading. Rather, if the machine is set for a two-digit readout, it will give only a two-digit readout.
The circuit court noted two relevant cases (People v. Morris, 301 Ill. App. 3d 603, 703 N.E.2d 923 (1998); People v. Kilpatrick, 216 Ill. App. 3d 875, 576 N.E.2d 546 (1991)), indicating that Morris favored granting the motion in limine, while Kilpatrick did not, but both cases were decided prior to the legislature's recent reduction of the level of alcohol needed to establish impairment for a DUI offense. The circuit court, therefore, determined that it must strictly interpret the statutes in light of the lesser burden on the State and granted the defendant's motion in limine. The State filed a certificate of impairment and now appeals.
Generally, an appellate court will not disturb the circuit court's decision to grant a motion in limine absent an abuse of discretion. Swick v. Liautaud, 169 Ill. 2d 504, 521, 662 N.E.2d 1238, 1246 (1996). However, the only issue before this court involves a question of law; therefore, our review is de novo. People v. Carlson, 185 Ill. 2d 546, 551, 708 N.E.2d 372, 374 (1999).
The State submits that the circuit court erred in accepting the defendant's contention that the Intoximeter 3000 breathalyzer machine had been improperly certified as accurate. In so doing, the State asks this court to follow the second district's holding in People v. Kilpatrick, 216 Ill. App. 3d 875, 576 N.E.2d 546 (1991), involving a nearly identical fact situation, where the second district concluded that the Department's regulation did not require accuracy beyond two digits. Further, the State contends that although the breathalyzer machine can read three digits, this is of no consequence with respect to the machine's accuracy. Since a breathalyzer machine does not round off the third digit, the third digit noted on the certificate of laboratory analysis should also be disregarded when certifying the accuracy of a breathalyzer machine. Moreover, the State notes that the circuit court failed to explain the connection between its reliance on the legislature's recent decision to reduce the percentage of alcohol needed to be considered intoxicated and its decision to strictly construe the statute. The State next criticized People v. Morris, 301 Ill. App. 3d 603, 703 N.E.2d 923 (1998), a fifth district case also with nearly identical facts, because the fifth district, while refusing to follow Kilpatrick, did not explain how Kilpatrick was wrongly decided. Last, the State claims that, because the ...