Appeal from the Circuit Court of Du Page County. No. 09-CF-1438 Honorable John J. Kinsella, Judge, Presiding. Appeal from the Circuit Court of Du Page County. No. 09-CF-2228 Honorable John J. Kinsella, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Jorgensen concurred in the judgment and opinion. Justice Bowman dissented, with opinion.
¶ 1 The State appeals the trial court's grant of motions in limine made by defendants, Kevin K. Clairmont and Inocencio Fernandez, barring admission of the results of defendants' breath tests at trial. The State filed a certificate of substantial impairment in each case, pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006). This court consolidated the two cases on appeal on the State's motion. The sole issue raised by the State is whether, based on the alleged improper certification of the breath test machines, the trial court properly barred the results of the breath tests. We affirm and remand.*fn1
¶ 3 We recite only the facts necessary for these appeals. The following facts are not in dispute. In June 2009 Clairmont was charged with numerous offenses, including aggravated driving under the influence of alcohol while his driving privileges were revoked or suspended (625 ILCS 5/11-501(c)(1) (West 2008)) and driving under the influence of alcohol (625 ILCS 5/11-501(a)(1) (West 2008) ("the alcohol concentration in the person's blood or breath is 0.08")).*fn2 Clairmont submitted to a breath test when he was stopped by the police.
¶ 4 In September 2009 Fernandez was charged with numerous offenses, including four counts of aggravated driving under the influence of alcohol. Two of these counts alleged, in part, that the alcohol concentration in Fernandez's blood or breath was 0.08 in violation of section 11/501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2008)).*fn3 Fernandez submitted to a breath test at the time he was stopped by the police.
¶ 5 Both defendants filed motions in limine to bar the introduction at their trials of their breath test results. Their motions alleged that the breath test machines were not certified as accurate in accordance with section 1286.230 of title 20 of the Administrative Code (20 Ill. Adm. Code 1286.230, at 33 Ill. Reg. 8529 (June 4, 2009)), because they were not checked and certified within 62 days, as required by the regulation.
¶ 6 The trial court heard argument on defendants' motions at the same time. During argument, the parties stipulated that the breath test machine used for Clairmont was checked and certified 60 days before he was tested and not again until 11 days after. Therefore, a total of 71 days passed between the two checks and certifications.
¶ 7 The parties also stipulated that the breath test machine used for Fernandez was checked and certified 3 days before he was tested and not again until 62 days after. Therefore, a total of 65 days passed between the two checks and certifications. The trial court granted both defendants' motions in limine. The State filed timely certificates of impairment and notices of appeal. These cases were consolidated on appeal.
¶ 9 Initially, we note that Fernandez did not file an appellee's brief. However, the issue can be decided without a brief from Fernandez. Thus, we will decide the merits of the State's appeal in both cases. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 10 On appeal, the State contends that the trial court erred by granting defendants' motions in limine and barring the results of the breath tests from being introduced at trial. The State argues that the results of defendants' breath tests were admissible because the breath test machines were checked no more than 62 days prior to defendants' tests, pursuant to section 1286.200 of title 20 of the Administrative Code. See 20 Ill. Adm. Code 1286.200 (2011). The State argues that section 1286.200 is the only section addressing the timing of breath-test-machine checking that affects admissibility. Defendants argue that section 1286.230, requiring breath test machines to be checked "at least once every 62 days" to ensure accuracy, must also be complied with, together with section 1286.200. Defendants argue that the trial court did not err because the subject breath test machines had not been checked in a timely manner pursuant to section 1286.230; thus, defendants' test results were inadmissible. We agree with defendants.
¶ 11 In general, a trial court's decision to grant a motion in limine will not be disturbed on review absent an abuse of discretion. People v. Morris, 394 Ill. App. 3d 678, 680 (2009). However, in this case, the State's sole argument is that the trial court's application of section 1286.230 of title 20 of the Administrative Code was erroneous as a matter of law. Where, as here, the issue on appeal involves a question of law, our review is de novo. See People v. Oliver, 387 Ill. App. 3d 1162, 1167 (2009).
¶ 12 When a motorist files a motion in limine to bar breath test results, the State must establish a sufficient foundation for the admission of the evidence. People v. Ebert, 401 Ill. App. 3d 958, 960 (2010). To lay a proper foundation, the State must establish that the test was performed in accordance with section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a) (West 2008)) and the regulations promulgated by the Illinois Department of State Police. People v. Orth, 124 Ill. 2d 326, 340 (1988).*fn4 Failure to comply with section ...