Appeal from the Circuit Court of Du Page County. No. 10-DT-2090 Honorable Brian J. Diamond, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, John J. Olson, was charged with two counts of driving while under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)), and he was ticketed for improper lane usage (625 ILCS 5/11-709 (West 2010)). Before trial, he filed a motion in limine, asking the court to bar admission of the results of a breath test he took. Defendant contended that the results should be barred because section 1286.230 of title 20 of the Illinois Administrative Code (Code) (20 Ill. Adm. Code 1286.230, amended at 33 Ill. Reg. 8529 (eff. June 4, 2009)) mandates that breath-testing machines be certified every 62 days, the machine used in his case was not certified for 63 days, and he submitted to testing during this 63-day period. Relying on this court's decision in People v. Clairmont, 2011 IL App (2d) 100924, the trial court granted the motion. The State timely appealed and filed a certificate of impairment. At issue in this appeal is whether, under the facts presented here, Clairmont mandated that the trial court grant defendant's motion in limine. For the reasons that follow, we find that it did not. Thus, we vacate and remand.
¶ 2 The facts relevant to resolving this appeal are as follows. On May 29, 2010, Officer Poli stopped defendant for DUI and improper lane usage. Defendant was taken to the police department, where he submitted to a breath test. The test indicated that defendant was under the influence of alcohol.
¶ 3 The machine used to test defendant underwent a "Certification Check" on May 9, 2010. The next time a "Certification Check" was conducted on the machine was July 11, 2010, 63 days later.
¶ 4 Based on these facts, defendant filed a motion in limine, claiming that the court should bar admission of the results of his breath test. At the hearing on the motion, which occurred on the eve of trial, the parties discussed with the court whether resolution of defendant's motion was controlled by Clairmont. During that discussion, the following exchange was had:
"[Assistant State's Attorney]: I believe it actually is a case of first impression onto the—in Clairmont the State waived their argument of substantial compliance.
The Court noted, specifically at the end of the case, that the State could have made that argument. They chose not to. And this—Clairmont was actually a case on statutory interpretation of the administrative rule where the Court found that the State did not properly read that rule. And they found, in fact, that there was a requirement to have certification on every 62 days.
So the State will be making a substantial compliance argument that we believe is consistent with Clairmont and [People v.] Bishop[, 354 Ill.App.3d 549 (2004)].
[Defense counsel]: A brief response?
THE COURT: That won't be necessary, counsel.
[Defense counsel]: All right.
THE COURT: The State's [sic] motion in limine ...