 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Wilhelm1/27/2004
Defendant, Lois L. Wilhelm, was arrested and charged by information with driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2002)) and driving with a breath-alcohol concentration of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2002)). She was also given notice that her driving privileges were summarily suspended under section 11-501.1 of the Illinois Vehicle Code (625 ILCS 5/11-501.1 (West 2002)). She filed a petition to rescind the summary suspension, which the trial court granted. The State appeals, arguing that the court erred in construing the regulations for the administration of the breath test. We reverse.
Section 1286.310 of the Illinois Administrative Code (the Code) (20 Ill. Adm.Code § 1286.310 (2003)) describes the procedures for obtaining an individual's breath sample to determine his or her breath-alcohol concentration. The first step requires a 20 minute observation period before an officer administers the test, during which the individual may not have had alcohol or any foreign substance in his or her mouth. 20 Ill. Adm.Code § 1286.310(a)(1) (2003). This requirement relates to the reliability of the breath test because foreign substances like food, smoke, or water may alter the breath-alcohol content. People v. Miller, 219 Ill.App.3d 246, 248, 164 Ill.Dec. 456, 583 N.E.2d 10 (1991) (discussing 77 Ill. Adm.Code § 510.60(a) (1985), a prior version of the breath test administration regulations). If the individual regurgitates or vomits during the observation period, the observation must be started over after the individual rinses his or her mouth with water. 20 Ill. Adm.Code § 1286.310(a)(2) (2003). Once instructed to do so, the individual will blow into the breath testing instrument, and he or she is required to keep blowing into the instrument until an adequate breath sample has been collected. 20 Ill. Adm.Code § 1286.310(b) (2003).
In this case, at the hearing on defendant's petition to rescind the statutory summary suspension, the parties stipulated to the following.
After the arresting officer continuously observed her for 20 minutes, defendant was given a breath test. The instrument **1034 ***413 used to take the breath sample, the Intox EC/IR, a Department of State Police approved breath test instrument (20 Ill. Adm.Code § 1286.210(a)(2) (2003)), consisted of an analysis device connected by a breath tube to a *208 mouthpiece. As instructed, defendant put the mouthpiece into her mouth and blew into it. That blow did not produce a sufficient sample for the breathalyzer to analyze. Defendant removed the mouthpiece, spoke to the officer, replaced the mouthpiece, and blew again. That blow also did not produce a sufficient breath sample. Again, she removed the mouthpiece, replaced it, and blew. The third blow produced a sufficient breath sample. The breathalyzer reading indicated that defendant had a breath-alcohol content above 0.08. Defendant's three attempts to give a breath sample took approximately four minutes, as the breathalyzer took about one minute to recycle and prepare for each test.
After the stipulated facts were presented, the court took the matter under advisement. In its written order, the court concluded that the State did not follow the rules for administering the breath test. It determined that the breathalyzer's mouthpiece was a "foreign substance," as defined by section 1286.10 of the Code (20 Ill. Adm.Code § 1286.10 (2003)). As such, the Code mandated that, once the foreign substance had entered defendant's body, a new 20 minute observation period was required before the next breath test could be administered. The court rescinded defendant's summary suspension. The State appeals.
The only issue on appeal is whether the trial court erred in its interpretation
Page 1 2 3 Illinois DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|