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People v. Ernsting

Court of Appeals of Illinois, Fifth District

January 31, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
THERASHIA E. ERNSTING, Defendant-Appellee.

         Appeal from the Circuit Court of Randolph County. No. 16-DT-24 Honorable Eugene E. Gross, Judge, presiding.

          Attorneys for Appellant Hon. Jeremy R. Walker, State's Attorney, Randolph County Courthouse, Chester, IL 62233; Patrick Delfino, Director, David J. Robinson, Acting Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,

          Attorney for Appellee Jeffrey S. Hammel

          JUSTICE OVERSTREET delivered the judgment of the court, with opinion. Justices Welch and Moore concurred in the judgment and opinion.

          OPINION

          HONORABLE DAVID K. OVERSTREET, JUDGE.

         ¶ 1 After she was arrested for driving under the influence of alcohol (DUI), the defendant, Therashia E. Ernsting, submitted to a breath-alcohol test that showed she had a blood-alcohol concentration (BAC) of 0.215. Arguing that the test results were unreliable, the defendant subsequently filed a motion to suppress the results and a petition to rescind the statutory summary suspension of her driving privileges. Following a hearing, the trial court granted the defendant's motion and petition. The State appeals from the trial court's judgment. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 On May 7, 2016, at approximately 11 p.m., the defendant crashed her 2011 Chevrolet Camaro into an unoccupied pickup truck that was parked along a street near her home in Steeleville. The defendant's dog was riding with her at the time, and the impact of the collision caused the car's airbags to deploy. At the scene of the accident, the defendant stated that she did not require medical treatment and that her dog had distracted her driving. She exhibited signs of alcohol impairment, however, and failed multiple field sobriety tests. As a result, she was arrested and charged with DUI (625 ILCS 5/11-501(a)(2) (West 2016)) and was transported to the Randolph County jail for the administration of a breath-alcohol test.

         ¶ 4 The defendant's breath-alcohol test was administered by Randolph County Sheriff's Deputy Kyle Colvis, using an Intox EC/IR II breath-test machine. The testing procedure was video recorded, but the recording has no audio. After the defendant's first attempt to provide a sufficient breath sample failed because she inserted the machine's mouthpiece too far into her mouth, Colvis removed the mouthpiece with his right hand, purged the machine, and then reinserted the mouthpiece so that the defendant could try again. The defendant's second attempt was successful, and the machine indicated that her BAC was 0.215. She was thus charged with operating her vehicle while her BAC was 0.08 or more (id. § 11-501(a)(1)).

         ¶ 5 On May 23, 2016, after receiving notice that as of June 23, 2016, her driving privileges would be summarily suspended by statute (see id. § 11-501.1), the defendant filed a petition to rescind the statutory summary suspension. The defendant's petition generally suggested, among other things, that the results of her breath-alcohol test were unreliable and that the test had not been administered in compliance with approved procedures.

         ¶ 6 On June 9, 2016, the defendant filed a motion to suppress the results of her breath-alcohol test, again suggesting that the results were unreliable and that the test had not been administered in compliance with approved procedures. The defendant's motion specifically alleged, among other things, that when her car's airbags had deployed, she had "sustained an injury to her mouth which caused a cut and, therefore, bleeding, in the inside of her mouth." The motion further alleged that assuming that there was any measurable amount of alcohol in the blood, the blood in the defendant's mouth would have materially affected the reliability of the test results.

         ¶ 7 On June 23, 2016, June 29, 2016, and July 27, 2016, the cause proceeded to a joint hearing on the defendant's motion to suppress and petition to rescind. Over the course of the hearing, the defendant presented the following evidence.

         ¶ 8 Colvis was called as an adverse witness for the defense. Colvis testified that he was certified by the Illinois State Police to administer breath-alcohol tests using the Intox EC/IR II breath-test machine. Colvis acknowledged that the airbags in the defendant's car had deployed when the car struck the parked truck and that a deploying airbag can result in minor facial injuries. Identifying a document admitted into evidence and referred to as a "DUI checklist, " Colvis further acknowledged that he had not checked the defendant's mouth for blood prior to her performance of the breath test, even though he had been trained to check a subject's mouth prior to and after the pre-test 20-minute observation period. We note that the "DUI checklist" states, "CHECK MOUTH PRIOR TO AND AFTER 20 MINUTE PERIOD, " but does not reference "foreign substances."

         ¶ 9 Colvis testified that he was not "familiar with the Illinois Administrative Code regulations, " but he agreed that blood in a subject's mouth would be considered a "foreign substance" such as chewing gum or chewing tobacco. Colvis further agreed that if a subject had blood in the mouth, a blood or urine test would be preferable to a breath test and that he would "at least" have the subject "rinse their mouth out" and then restart the 20-minute observation period. Colvis acknowledged that the purpose of checking a subject's mouth before and after the observation period is to ensure reliable test results. Colvis indicated that he was not qualified to testify regarding how blood in a subject's mouth might affect the reliability of the results of a breath-alcohol test. Colvis acknowledged ...


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