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People v. Robledo

Court of Appeals of Illinois, Second District

February 21, 2018

NINA M. ROBLEDO, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County. No. 14-DT-2031 Honorable Veronica M. O'Malley, Judge, Presiding.

          JUSTICE ZENOFF delivered the judgment of the court, with opinion.Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.



         ¶ 1 Following a jury trial in the circuit court of Lake County, defendant, Nina M. Robledo, appeals her conviction of driving with a blood alcohol concentration (BAC) of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2014)). We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On September 28, 2014, at 1:45 a.m., Officer Michael Bond of the Mundelein Police Department observed defendant driving a car with only one headlight illuminated. He followed the car onto a residential street, where it pulled into a driveway. During that brief time, Bond did not notice anything unusual about the way the car was being driven. Defendant exited the car and walked behind a house on the property. Bond approached the car's passenger to advise her that a headlight was out. At that moment, defendant reappeared and informed Bond that she pulled into the driveway because her license was suspended and she did not want to be arrested. Bond smelled a moderate odor of alcohol on defendant's breath, and he noticed that her eyes were bloodshot and "droopy." Defendant displayed no other signs of intoxication. Defendant told Bond that she had drunk "a couple" of Mike's Hard Lemonades and a "swig" of Corona. Bond arrested defendant for driving with a suspended license, and she agreed to perform field sobriety tests at the police station.

         ¶ 4 Following defendant's performance of the field sobriety tests, Bond informed defendant that she was "borderline." Defendant agreed to take a breath test. Bond observed defendant for 20 minutes, during which she did not put anything into her mouth. Defendant then blew into an Intox EC/IR-II machine, with a result of 0.082. Bond arrested defendant for driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2014)) and driving with a BAC of 0.08 or more.

         ¶ 5 At trial, Bond testified to the above facts. He also testified that he was a certified breath-analysis operator and that the breath-test machine checks itself monthly for accuracy. Bond explained that a dry gas container inside the machine is calibrated to give a result of 0.079. According to Bond, the machine did internal checks and performed certification tests on September 2, 2014, and October 1, 2014, and both tests accurately measured the alcohol concentration in the dry gas container at 0.079. Bond testified that the machine has a margin of error of plus or minus 0.005.

         ¶ 6 Defendant did not contest Bond's testimony or the admissibility of the breath-test result. However, defendant moved for a directed verdict on the basis that her actual BAC could have been below the legal limit, given the machine's margin of error. The trial court denied the motion, and defendant repeated her argument to the jury. The prosecution argued to the jury that the margin of error meant that defendant's BAC actually exceeded 0.082. The jury found defendant not guilty of driving under the influence of alcohol, but it found her guilty of driving with a BAC of 0.08 or more. The court sentenced defendant to a period of supervision and a fine.[1] Defendant filed a timely appeal.

         ¶ 7 II. ANALYSIS

         ¶ 8 Defendant contends that she was not proved guilty beyond a reasonable doubt where her BAC could have been as low as 0.077, given the machine's margin of error. Both parties represent that this is an issue of first impression and point us to decisions of foreign jurisdictions. While no Illinois court has specifically addressed the issue of a breath-test machine's margin of error, it is well settled in Illinois that any question of the reliability of evidence is properly considered by the jury in determining what weight to give that evidence. People v. Lipscomb, 215 Ill.App.3d 413, 432 (1991); People v. Mehlberg, 249 Ill.App.3d 499, 539 (1993). The relevant inquiry is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Luth, 335 Ill.App.3d 175, 178 (2002).

         ¶ 9 Section 11-501(a)(1) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(1) (West 2014)) provides that a person shall not drive or be in actual physical control of any vehicle while the alcohol concentration in the person's blood is 0.08 or more. The necessary elements of the offense are (1) the driving or actual physical control of a motor vehicle and (2) a BAC of 0.08 or more. People v. Smith, 2015 IL App (1st) 122306, ¶ 28. The trier of fact must determine the credibility of witnesses and the weight to give their testimony, resolve conflicts in the evidence, and draw reasonable inferences from the evidence. Luth, 335 Ill.App.3d at 178.

         ¶ 10 Section 11-501.2(a) of the Code provides in relevant part that evidence of the concentration of alcohol in a person's breath is admissible in a criminal prosecution under section 11-501. 625 ILCS 5/11-501.2(a) (West 2014). Section 11-501.2(a) further states that a chemical analysis of a person's breath is considered valid if it was performed according to standards promulgated by the Department of State Police (Department). 625 ILCS 5/11-501.2(a) (West 2014). To lay a proper foundation for the admission of the result of a breath test, the prosecution must establish that the breath test was performed in accordance with those standards. People v. Olson, 2013 IL App (2d) 121308, ¶ 9. We, therefore, look to the Department's standards, as set forth in administrative regulations. Administrative regulations have the force and effect of law. People v. Clairmont, 2011 IL App (2d) 100924, ¶ 17.

         ¶ 11 Section 1286.200 of Title 20 of the Illinois Administrative Code provides that the following procedures establish the accuracy of breath-testing instruments: (1) the instrument was approved at the time of the subject test, (2) the performance of the instrument was within the accuracy tolerance according to the last accuracy check prior to the subject test, (3) no accuracy check has been performed since the subject test, or the next accuracy check after the subject test was within the accuracy tolerance, and (4) accuracy checks have been done in a timely manner, meaning not more than 62 days passed between the last accuracy check and the subject test. 20 Ill. Adm. ...

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