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Gumma v. White7/21/2005
ry of State in this regard was the sworn statement by Officer Basel dated August 24, 2001. In this statement Officer Basel attested that the instrument had been "tested and certified accurate on 7/13/01." This date, however, was long after any 45-day period which would have included September 22, 2000, the date when Gumma's breath test was administered. Thus, the Secretary of State produced no evidence that the instrument used to test Gumma's breath was functioning properly on September 22, 2000. A proper foundation for the admission of the breath-test results was not made. Therefore, the breath-test results were inadmissible and could not be relied upon to support the zero-tolerance summary suspension.
The Secretary of State argues that, even though Gumma was able to show that the Barrington police department violated the Department of Public Health rules, he did not make a prima facie showing that the breath-test results were unreliable "in light of other evidence that he consumed some amount of alcohol." The Secretary of State contends that it is immaterial that Gumma was able to show that the breath-analysis instrument may not have been accurate because "the precision of the Breathalyzer result is of far less consequence in a zero tolerance proceeding" (as opposed to a DUI statutory proceeding) since, in a zero- tolerance proceeding, summary suspension may be based on the consumption of any amount of alcohol. This argument misses the point.
It is clear from the language of the zero-tolerance statute that evidence of a driver's submission to testing which discloses an alcohol concentration greater than 0.00, or evidence that he refused to submit to testing, is a necessary prerequisite for the imposition of a summary suspension pursuant to this provision. 625 ILCS 5/11-501.8(d) (West 1998). In other words, when a driver under the age of 21 is arrested for committing a traffic violation, summary suspension may not be imposed pursuant to section 11-501.8 of the Code, even when probable cause exists to believe that the driver has consumed some amount of alcohol, unless there is evidence that the driver submitted to testing, or that the driver refused to submit to testing. The officer's observations, which suggest that the driver has consumed some amount of alcohol, while important for the establishment of probable cause, are insufficient to support a summary suspension pursuant to the zero-tolerance provision.
In the case at bar, Gumma sought rescission of his zero-tolerance summary suspension and, at the administrative hearing, made a prima facie showing that the breath-analysis test he took was invalid. Therefore, the test results were inadmissible unless the Secretary of State was able to lay a proper foundation for the admission of the breath-test results. The Secretary of State failed to do so. The Secretary of State could not show that the instrument used to test Gumma's breath had been maintained in compliance with Department of Public Health rules and regulations. For this reason, the test results were not admissible and the Secretary of State had no valid evidence that Gumma "did submit to and complete the test or tests that determined an alcohol concentration of more than 0.00." 625 ILCS 5/11-501.8(e)(5) (West 1998). Accordingly, Gumma's zero-tolerance summary suspension should have been rescinded. The Secretary of State's denial of Gumma's petition was against the manifest weight of the evidence.
CONCLUSION
For the reasons stated, we affirm the appellate court's judgment.
Affirmed.
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