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
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. 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. ...