People v. Robledo, 2018 IL App (2d) 151142 (February). Episode 470 (Duration 7:10)

Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08.

Traffic Stop

Officer Michael Bond of the Mundelein Police Department observed defendant driving a car with only one headlight illuminated. He followed the car onto a residential street, where it pulled into a driveway.

DUI Investigation

She walked behind a house and came back out. At that moment, defendant reappeared and informed Bond that she pulled into the driveway because her license was suspended and she did not want to be arrested. 

Bond smelled a moderate odor of alcohol on defendant’s breath, and he noticed that her eyes were bloodshot and “droopy.” Defendant displayed no other signs of intoxication.

Defendant told Bond that she had drunk “a couple” of Mike’s Hard Lemonades and a “swig” of Corona.

Borderline

Bond arrested defendant for driving with a suspended license, and she agreed to perform field sobriety tests at the police station. Following defendant’s performance of the field sobriety tests, Bond informed defendant that she was “borderline.”

Breadth Test

Defendant agreed to take a breath test.

Bond observed defendant for 20 minutes, during which she did not put anything into her mouth. Defendant then blew into an Intox EC/IR-II machine, with a result of 0.082.

Machine Calibration

Bond explained that a dry gas container inside the machine is calibrated to give a result of 0.079.

According to Bond, the machine did internal checks and performed certification tests on September 2, 2014, and October 1, 2014, and both tests accurately measured the alcohol concentration in the dry gas container at 0.079.

Bond testified that the machine has a margin of error of plus or minus 0.005.

Issue

Defendant contends that she was not proved guilty beyond a reasonable doubt where her BAC could have been as low as 0.077, given the machine’s margin of error.

The Code

Section 11-501.2(a) of the Code provides in relevant part that evidence of the concentration of alcohol in a person’s breath is admissible in a criminal prosecution under section 11-501. 625 ILCS 5/11-501.2(a).

This is a DUI charge.

Section 11-501.2(a) further states that a chemical analysis of a person’s breath is considered valid if it was performed according to standards promulgated by the Department of State Police (Department). 625 ILCS 5/11-501.2(a). To lay a proper foundation for the admission of the result of a breath test, the prosecution must establish that the breath test was performed in accordance with those standards. People v. Olson, 2013 IL App (2d) 121308, ¶ 9.

The Standards 

We, therefore, look to the Department’s standards, as set forth in administrative regulations.

Administrative regulations have the force and effect of law. People v. Clairmont, 2011 IL App (2d) 100924, ¶ 17. Section 1286.200 of Title 20 of the Illinois Administrative Code provides that the following procedures establish the accuracy of breath-testing instruments:

(1) The instrument was approved at the time of the subject test,

(2) The performance of the instrument was within the accuracy tolerance according to the last accuracy check prior to the subject test,

(3) No accuracy check has been performed since the subject test,