Appeal from the Circuit Court of Du Page County. No. 10-DT-2287 Honorable William I. Ferguson, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.
¶ 1 On March 10, 2009, defendant, Bradley W. Phillips, was arrested and charged by information with two counts of driving under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2) (West 2008)), and one count of speeding (625 ILCS 5/11-601(b) (West 2008)). Defendant was administered a breath test, and the State later attempted to introduce the results of that test at defendant's bench trial. Defendant objected and moved to strike the results of the breath test on the basis that the amended version of the regulatory provision governing the certification of evidentiary breath test instruments retroactively applied and therefore excluded the results because the State did not proffer the reference sample value on the instrument used to administer the breath test. The trial court granted defendant's motion to strike. The State now appeals the trial court's interlocutory order, contending that (1) an interlocutory appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006) is appropriate; and (2) the amended version of section 1286.230 of title 20 of the Illinois Administrative Code (the Administrative Code) (20 Ill. Adm. Code 1286.230 (2011)) does not apply retroactively to breath tests administered prior to June 4, 2009. For the reasons set forth below, we dismiss this appeal for lack of jurisdiction.
¶ 3 The record reflects that on March 10, 2009, defendant was arrested in Warrenville and charged with two counts of driving under the influence of alcohol and one count of speeding. A bench trial commenced on November 1, 2010. The State first called Officer Todd Mossey, a police officer with the Warrenville police department. Mossey testified that he was certified to administer breath tests to determine blood alcohol levels. Mossey testified that on March 10, 2009, he was asked to assist with the observation of a breath test being administered to defendant at the police department. Mossey testified that defendant agreed to submit to the breath test and that the results of that test revealed a blood alcohol content of 0.184. During cross-examination, Mossey acknowledged that he did not know the reference sample value on the instrument used for the breath test and that the log book reflecting the results of tests administered did not contain the reference sample value. On redirect examination, the State tendered two affidavits from Officer Tim Miller, who averred that the instrument used to test defendant's blood alcohol level was "checked for calibration [and accuracy]" and that the results of the analysis "coincided with the predicated alcohol concentration of the reference sample within [plus or minus] .01 W/V." Defendant objected to the admission of the affidavits on the basis that they exceeded the scope of his cross-examination and were in violation of discovery. In responding to a question from the trial court, the State acknowledged that it did not turn over the Miller affidavits to defendant before trial. The trial court admitted the affidavits into evidence subject to cross-examination.
¶ 4 The State then called Officer Thomas Bellinger, a police officer with the Warrenville police department. Bellinger testified that he effected a traffic stop after his speed radar displayed that defendant's car was traveling 52 miles per hour in a 35-mile-per-hour speed zone. Bellinger testified that, when defendant was pulled over, his speech was "very slurred," his eyes were bloodshot and "glassy," and he repeatedly licked his lips, indicating that his mouth was dry. Bellinger testified that, based on his experience as a police officer and his observations of defendant, defendant appeared to be under the influence of alcohol while operating his vehicle. The State rested after Bellinger's testimony.
¶ 5 After the State rested, defendant moved to strike the results of the breath test. Defendant argued that section 1286.230 of title 20 of the Administrative Code, which was amended on June 4, 2009, provided that evidentiary instruments used to administer breath tests must quantitate a reference sample within 10% of the reference sample value as adjusted for environmental factors. According to defendant, because the affidavits did not specify the reference sample value for the instrument, the trial court could not determine whether the instrument quantitated a reference sample within 10% of the reference sample value, as required by the Administrative Code. Defendant further argued that, pursuant to this court's decision in People v. Morris, 394 Ill. App. 3d 678 (2009), the State was required to demonstrate that it complied with the version of section 1286.230 that was in effect at the time of trial, not the version of that provision that was in effect when the breath test was administered. According to defendant, the State failed to establish that the machine used to administer the breath test was correctly certified pursuant to the rules that existed at the time of trial. Defendant also raised other arguments, which are not at issue in this appeal, for why the results of the breath test should not be permitted into evidence. The State countered that the motion should be denied because the State complied with the version of section 1286.230 that was in effect when defendant was arrested and the test was administered. The State further argued that if the trial court was interpreting which law applied to this particular case, the State would be able to file a certificate of impairment and seek an interlocutory appeal.
¶ 6 The trial court granted defendant's motion to strike the results of the breath test. Citing Morris, the trial court concluded:
"[Morris] indicates that the ex post facto clause does not limit the legislature's control of remedies or modes of procedure if they do not affect matters of substance, and an amendment that affects only procedure matters and not substantive rights will be applied retroactively, as well as prospectively.
And the [court in Morris] went on to say that the new standards apply and that the amended regulations affected the procedure, not substantive rights, and, thus, should have been applied retroactively.
Similarly, the [c]court finds that, under Morris, I'm compelled to follow that case, and that means that the new rules apply."
The trial court concluded that, because there was no evidence indicating that the State complied with the amended version of section 1286.230, there was a missing element with regard to the proper foundation for the admission of the breath test results. Thereafter, the trial court granted the State leave to reopen the proofs and recessed the trial until the next day. When the matter resumed, the State filed instanter a certificate of impairment and a notice of appeal, claiming that the ruling striking the results of the breath ...