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People v. Rosinski7/21/2004
These cases are consolidated for the purposes of appeal. Defendants, David F. Rosinski, Theodore J. Rigas, Thomas J. Janozik, Anthony J. Gianfrancisco, Ivan Dukic, who were all represented by the same attorney, and Brett A. Jensen, were arrested and charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 1994)), after breath analyses indicated that they had unlawful breath-alcohol content. Each defendant filed a motion in limine to prohibit evidence of the breath testing instrument's reading, arguing that the breath testing instrument used in his case had not been tested by the Illinois Department of Public **1080 ***387 Health (IDPH), as required by an Illinois regulation, prior to being approved for use in the field. The instruments involved are the Intox EC/IR and the Intoximeter 3000. Relying on People v. Hanna, 332 Ill.App.3d 527, 265 Ill.Dec. 816, 773 N.E.2d 178 (2002) (Hanna I), rev'd, 207 Ill.2d 486, 279 Ill.Dec. 618, 800 N.E.2d 1201 (2003), the trial courts granted the motions. After filing certificates of impairment, the State appeals, arguing that because Hanna I was reversed by the supreme court in People v. Hanna, 207 Ill.2d 486, 279 Ill.Dec. 618, 800 N.E.2d 1201 (2003) (Hanna II), the motions granted under the appellate court's decision should also be reversed. This argument presents a question of law, and our review is de novo. In re Estate of K.E.S., 347 Ill.App.3d 452, 461, 283 Ill.Dec. 76, 807 N.E.2d 681 (2004). We reverse and remand.
Defendants' argument is premised on the regulatory scheme for *461 breath testing instruments found in section 11-501.2 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.2 (West 1994)) and section 510.40 of title 77 of the Illinois Administrative Code (title 77) (77 Ill. Adm.Code § 510.40 (1996)). Section 11-501.2 of the Vehicle Code governs the admissibility of breath test results in prosecutions for driving under the influence of alcohol. Hanna II, 207 Ill.2d at 489-90, 279 Ill.Dec. 618, 800 N.E.2d 1201. When defendants were given their breath tests, section 11-501.2(a)(1) authorized IDPH to certify the accuracy of breath testing instruments used for evidentiary purposes and to prescribe regulations necessary for the certification process. See Hanna II, 207 Ill.2d at 490, 279 Ill.Dec. 618, 800 N.E.2d 1201. Section 11-501.2(a)(1) also provided that, to be "considered valid" at trial, breath-alcohol testing had to be performed according to the standards promulgated by IDPH. 625 ILCS 5/11- 501.2(a)(1) (West 1994). The Hanna II court explained these standards:
"Before 2001, [IDPH] had in place a set of administrative regulations which governed the certification process for evidential breath analysis instruments. These regulations, set forth in section 510.40 of title 77 (77 Ill. Adm.Code § 510.40 (1996)), contained a number of requirements that had to be met before a particular make and model of breath testing equipment could be listed by [IDPH] as certified or approved for evidentiary purposes. See 77 Ill. Adm.Code § 510 app. B (2000) (listing approved devices). One of these requirements, found in subsection (c) of section 510.40, stated that evidential breath analysis instruments 'will be tested and approved by [IDPH] in accordance with but not limited to the Standards for Devices to Measure Breath Alcohol promulgated by the National Highway Traffic Safety Administration' and found in certain federal regulations published in 1984 and 1993. 77 Ill. Adm.Code § 510.40(c) (1996)." Hanna II, 207 Ill.2d at 490, 279 Ill.Dec. 618, 800 N.E.2d 1201.
The cases in Hanna II are similar to the present appeals. The defendants in Hanna II moved to suppress breath test results, arguing that the breath testing instruments used to measure their breath-alc
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