 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Wilhelm1/27/2004
the foreign substances expressly prohibited. 77 Ill. Adm.Code § 510.60(a) (1985). If the breathalyzer's mouthpiece is a "foreign substance," one could argue that even the initial breath test can never be performed. Such an interpretation of the Code is preposterous and clearly contrary to the drafters' intent.
Because the obvious purpose of the regulation is to perform reliable breath tests, we cannot agree with the trial court's conclusion that the breathalyzer's mouthpiece is a "foreign substance" under the Code. In addition to the Code's purpose, we find support for this resolution in Washington's breath test administration regulations. In that state, the procedures for performing an accurate breath test are as follows:
"The following method for performing a breath test is approved by the state toxicologist * * * and includes the following safeguards to *210 be observed by the operator prior to the test being performed. It must be determined that: (1) The person does not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test; and (2) the subject does not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the fifteen minute observation period. Such determination shall be made by either an examination of the mouth or a denial by the person that he or she has any foreign substances in mouth. A test mouthpiece is not to be considered a foreign substance for purposes of this section." (Emphasis added.) Wash. Adm.Code § 448-13-040 (2003).
Obviously, the drafters of section 448-13-040 of the Washington Administrative Code (Wash. Adm.Code § 448-13-040 (2003)) have already considered the present issue--whether a breathalyzer's mouthpiece is a foreign substance that, if it enters a subject's mouth, requires a new observation period to ensure the test's accuracy. In a regulation very similar to our own, the Washington drafters expressly **1036 ***415 excluded a breathalyzer's mouthpiece from the definition of a foreign substance. Wash. Adm.Code § 448-13-040 (2003). Likewise, we hold that the Code drafters intended for the phrase "foreign substance" in section 1286.310 of the Code (20 Ill. Adm.Code § 1286.310 (2003)) to exclude a breathalyzer's mouthpiece. Accordingly, we further hold that the trial court's decision to grant defendant's petition to rescind the statutory summary suspension was erroneous.
The judgment of the circuit court of Lee County is reversed and the cause remanded.
Reversed and remanded.
Page 1 2 3 Illinois DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|