The opinion of the court was delivered by: Chief Justice McMORROW
Docket Nos. 94780, 94900 cons.-Agenda 6-May 2003.
At issue in this case is whether certain devices for measuring breath alcohol were properly tested by the Illinois Department of Public Health before being approved for use as evidential breath analysis instruments in Illinois. In two decisions, the appellate court concluded that they were not. 332 Ill. App. 3d 527; Nos. 5-01-0912, 5-01-0914 cons. (unpublished order under Supreme Court Rule 23). We consolidated these decisions for review and now reverse the judgments of the appellate court.
The defendants in this case were each arrested for driving under the influence of alcohol in unrelated incidents which occurred in either 1999 or 2000. Each defendant submitted to breath testing and each defendant recorded a breath-alcohol level above the legal limit. Following their arrests, four of the defendants, Craig A. Hanna, Kathryn R. Price, Keith Ryan O'Loughin and Gordon R. Pruett, were prosecuted in the circuit court of Williamson County for driving under the influence of alcohol. The remaining two defendants, David D. Vaughn and Kevin L. Johnson, were prosecuted in the circuit court of Johnson County for the same offense.
Williamson County Defendants
Prior to their trials, the four Williamson County defendants, who were all represented by the same attorney, filed separate but similar motions in which they sought to suppress the results of their breath tests. In these motions, defendants alleged that the particular makes and models of the breath testing devices which the police had used to measure their breath-alcohol levels were not properly tested by the Illinois Department of Public Health (Department) before being placed on the Department's list of approved evidentiary breath analysis instruments. From this, defendants argued that the breath testing devices used in their cases should not have been in use in Illinois, and that the results of their breath tests should therefore be suppressed. Defendants did not allege in their motions that the results of their breath tests were, in fact, invalid or unreliable.
The suppression argument made by the Williamson County defendants was premised on the regulatory scheme for breath testing devices found in section 11-501.2 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.2 (West 1998)) and section 510.40 of title 77 of the Illinois Administrative Code (title 77) (77 Ill. Adm. Code §510.40 (1996)). Section 11-501.2 of the Vehicle Code governs the admissibility of breath test results in prosecutions for driving under the influence of alcohol. See People v. Keith, 148 Ill. 2d 32, 41 (1992). At the time defendants were given their breath tests, section 11-501.2(a)(1) authorized the Department to certify the accuracy of breath testing equipment used for evidentiary purposes and to prescribe regulations necessary for the certification process. Section 11-501.2(a)(1) also provided that, to be "considered valid" at trial, breath-alcohol testing had to be performed according to the standards promulgated by the Department. 625 ILCS 5/11-501.2(a)(1) (West 1998). *fn1
Before 2001, the Department had in place a set of administrative regulations which governed the certification process for evidential breath analysis instruments. These regulations, set forth in section 510.40 of title 77 (77 Ill. Adm. Code §510.40 (1996)), contained a number of requirements that had to be met before a particular make and model of breath testing equipment could be listed by the Department as certified or approved for evidentiary purposes. See 77 Ill. Adm. Code §510 app. B (2000) (listing approved devices). One of these requirements, found in subsection (c) of section 510.40, stated that evidential breath analysis instruments "will be tested and approved by the Department in accordance with but not limited to the Standards for Devices to Measure Breath Alcohol promulgated by the National Highway Traffic Safety Administration" and found in certain federal regulations published in 1984 and 1993. 77 Ill. Adm. Code §510.40(c) (1996). *fn2
Before the circuit court, defendants alleged that, under the standards adopted by the National Highway Traffic Safety Administration (NHTSA), a breath testing device had to be subjected to, among other things, an input power test, an ambient temperature test and a vibrational stability test before the device could be approved for use as an evidential breath measurement device by the NHTSA. See 49 Fed Reg. 48859-60 (1984); 58 Fed. Reg. 48708 (1993). Defendants further alleged that these three tests were not performed by the Department on the devices which had been used to conduct their breath tests. Defendants therefore argued that the devices had not been tested "in accordance with" the NHTSA standards as required by section 510.40(c) of title 77 and that the results of their breath tests could not be "considered valid" under section 11-501.2(a)(1) of the Vehicle Code.
The circuit court of Williamson County consolidated defendants' cases to consider their motions to suppress. On April 17, 2001, a hearing was held on the motions. At that hearing, defendants introduced the testimony of one witness, Larry D. Eztkorn.
Etzkorn testified that he was the division chief for the alcohol and substance testing program at the Department of Public Health from 1992 until 2001, at which time the responsibility for approving breath testing devices was transferred to the Illinois Department of State Police. Eztkorn stated that he was currently the technical director or supervisor of the breath-alcohol program for the State Police. Eztkorn also stated that while he was employed by the Department of Public Health, he was in charge of the program which approved evidential breath testing devices for use in Illinois.
Eztkorn was questioned about the standards adopted by both the Department and the NHTSA for approving evidential breath testing equipment. Eztkorn acknowledged that a breath testing device could not be approved by the NHTSA for evidentiary use unless the device was first subjected to an input power test, an ambient temperature test and a vibrational stability test. Etzkorn also acknowledged that these tests were not performed on three models of breath testing devices which defense counsel cited as being on the Department's list of approved evidential breath analysis instruments: the "Intoxilyzer 3000," *fn3 the Intoxilyzer 5000 and the Intox EC/IR. However, Eztkorn testified that, in his view, the Department was not required to perform the tests on those devices. Eztkorn gave two general reasons as to why he believed this was so.
First, according to Eztkorn, the language of section 510.40(c) of title 77 did not impose a testing requirement. Eztkorn noted that, although section 510.40(c) referred to the NHTSA standards and regulations, the federal regulations themselves did not require the states to perform any testing. Instead, with respect to the states, the NHTSA regulations were only non-binding recommendations or guidelines. Further, the NHTSA regulations contemplated that some states would adopt their own, individualized testing requirements. The Department had adopted its own testing program, Eztkorn explained, and had performed some tests, such as testing for interference from radio waves, that were not done at the federal level. Moreover, Eztkorn stated that he had drafted portions of the current, revised version of section 510.40(c) and, in particular, had added the phrase "not limited to" which appears in the regulation. Eztkorn testified that it "was never [his] intent" when drafting the changes to ...