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City of McHenry v. Kleven

Court of Appeals of Illinois, Second District

August 13, 2019

THE CITY OF McHENRY, Plaintiff-Appellant,
STUART A. KLEVEN, Defendant-Appellee.

          Appeal from the Circuit Court of McHenry County. No. 17-DT-331 Honorable Joel D. Berg, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.



         ¶ 1 Defendant, Stuart A. Kleven, was charged with one count each of driving with a breath-alcohol concentration of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2016)) and driving under the influence of alcohol (id. § 11-501(a)(2)). He moved to suppress the result of the breath test that he took at the police station. The trial court granted his motion. The City of McHenry, which the McHenry County State's Attorney authorized to prosecute the case (see id. § 16-102), appeals. We reverse and remand.

         ¶ 2 Defendant's motion relied on the following Illinois Administrative Code provision:

"(a) Prior to obtaining a breath analysis reading from a subject, the [operator] *** shall continuously observe the subject for at least 20 minutes.
(1)During the 20 minute observation period the subject shall be deprived of alcohol and foreign substances and shall not have vomited.
(2)If the subject vomits during the observation (deprivation) period, the process shall be started over by having the individual rinse the oral cavity with water.
(3)If the individual continues to vomit, alternative testing shall be considered." 20 Ill. Adm. Code 1286.310(a) (2004).

         ¶ 3 The motion to suppress alleged as follows. On May 17, 2017, police officers stopped defendant's vehicle and arrested him. In the police station's booking room, an officer tested his breath-alcohol concentration. However, during the 20-minute observation period, the officer twice left the room. In these absences, defendant could have vomited or placed some substance into his mouth. Because the officer had not conducted the test as required, the result should be suppressed.

         ¶ 4 In response, plaintiff alleged as follows. Defendant was taken to the booking room by Officer Matthew Schmitt. The room had equipment that recorded both images and sound. According to the video of defendant's detention, he was tested at 12:30:36 a.m. Thus, the mandatory 20-minute observation period began at 12:10:36. During this period, the video depicted Schmitt leaving the room twice, to go to his squad car in the sally port. The first trip lasted from 12:23:48 until 12:26:21. At 12:26:26, Schmitt asked defendant whether he had vomited, burped, or eaten anything in the past half hour; defendant responded, "no." Schmitt's second absence lasted from 12:28:27 though 12:28:50. During this period, defendant sat with his head up in full view of the camera. Plaintiff reasoned that, because the purpose of the rule requiring a 20-minute observation period is to ensure that a person to be tested has not belched, vomited, smoked, or eaten anything in the period preceding the test, and because the video showed that defendant had done none of these things between 12:10:36 and 12:30:36, Schmitt had substantially complied with the 20-minute rule even though he had not directly observed defendant continuously the whole time.

         ¶ 5 The trial court held a hearing on defendant's motion. Defendant introduced the video into evidence, and it was played in court. (We shall recount the video as necessary when we explain our decision.) Defendant put on no further evidence.

         ¶ 6 Plaintiff moved for a directed finding, arguing that defendant had failed to present a prima facie case that Schmitt had not substantially complied with the 20-minute rule. According to plaintiff, the video showed that, during both of Schmitt's absences, defendant had been in full view of the camera and subject to the sound recording and had not belched, vomited, eaten, or done anything else to call the breath-test result into question. Moreover, upon returning from his first absence, Schmitt had asked defendant whether he had belched, vomited, or eaten in the past half hour, and defendant had said no. Defendant contended that Schmitt had not observed him continuously for 20 minutes and that the video could not substitute for such observation.

         ¶ 7 The trial court denied plaintiffs motion. The court noted that, under People v. Ebert, 401 Ill.App.3d 958, 960 (2010), the 20-minute rule requires only substantial, not strict, compliance. Nevertheless, the court reasoned, Schmitt's absences, for more than two minutes and then for half a minute, failed even this standard. If asking a detainee whether he has belched, vomited, or eaten during the 20-minute observation period and receiving the answer "no" could constitute substantial compliance, the requirement of actually observing the detainee would be negated. Moreover, relying on the self-report of a person who is presumably impaired is inherently dubious. The court explained, "I honestly *** can't even tell you sitting here-and I'm stone sober right now for the record-I can't tell you whether I've belched or anything within the last half hour."

         ¶ 8 The trial court noted next that, although Ebert found substantial compliance based on the defendant's testimony that he had not done any disqualifying act during the observation period, he had made this statement in court under oath, while he was presumably sober. Also, People v. Chiaravalle, 2014 IL App (4th) 140445, ¶ 9, found substantial compliance even though the officer had his back turned to the defendant" 'for minutes at a time.'" The trial court noted that Chiaravalle held that mere hearing is acceptable observation, so that "theoretically, Ray Charles could serve as the observer. How Ray Charles could ever tell us that the person did not put something in their mouth is beyond me." Noting that Chiaravalle was binding, the trial court distinguished it; Schmitt could neither see nor hear defendant during his absences. In neither Ebert nor Chiaravalle had the officer left the room altogether; Schmitt had done so twice.

         ¶ 9 Plaintiff called Schmitt. He testified as follows. The booking room had "a camera on the back wall facing the entire booking room that [was] audio and visually recorded [sic]." The recording was sometimes "jumpy with the audio," which did not "exactly match the movement of the video," but nothing suggested that there were any jumps in the video.

         ¶ 10 Schmitt testified that, in the booking room, he sat on a stool at a desk with a booking computer, and defendant sat on a stool in front of him and to his right. The room was about 10 feet by 15 feet, and the Breathalyzer was located 1 to 2 feet from defendant. Schmitt began the 20-minute observation period. While Schmitt was in the room, he was either working on the computer or at the Breathalyzer. While sitting at the computer desk, Schmitt ...

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