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Illinois DUI Laws Brief - Improper Breath Test Foundation by Donald J. Ramsell

The below motion by Illinois DUI Attorney donald J. Ramsell was successfully used to get a conviction for DUI with a breath test of .15 dismissed.

DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND/OR NEW TRIAL

That the trial court erred in admitting the breath alcohol test for the following reasons:

a) At trial, the state introduced the accuracy checks allegedly performed on the breath machine by a government employee by way of introducing written documentation from a 'logbook'. The inspector who performed the alleged testing did not testify at trial and was not subject to cross-examination. Such a procedure violated the Sixth Amendment Right of Confrontation. As noted in Crawford v. Washington, U.S. Supreme Court 02-9410 (2004), the right to confront one's accusers is a concept that dates back to Roman times. Over the years, the criminal courts in the United states had eroded this right through various civil-law techniques, such as 'public records', 'business records', 'prior testimony', and 'sworn affidavits' to avoid application of the Sixth amendment.
b) Crawford held that this civil-law mode of criminal procedure, and particularly the use of ex parte examinations, violates a Defendant's right of cross-examination-"that is, material such as affidavits, custodial examinations, prior testimony that a defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially" violate a defendant's right of confrontation, when the declarants does not appear at trial for cross-examination. Here, the State used a prior statement of a government employee to prove that the breath machine that tested defendant was 'certified accurate'. Nothing could fit the definition of a Confrontation violation more accurately than such a piece of evidence, no matter how one attempts to slice it.
c) In fact, only one State Supreme Court has reviewed a similar set of facts. In City of Las Vegas v. Walsh, 120 Nev. Adv. Op. No. 44 (Decided June 11, 2004), the Supreme Court of Nevada in a DUI case ruled that an affidavit of compliance for a blood test, made pursuant to a state statute, was entered in violation of defendant's Right of Confrontation, citing to Crawford.
d) Additionally, the court erred in admitting the breath test results where the State failed to lay an adequate foundation, and where the evidence established a violation of several ISP Rules Governing Admission of breath Tests.

1) Failure to perform a 20 minute observation period - At trial, Officer Bohacz, the arresting officer, testified that he was supposedly performing the observation period. (p. 60). However, he admitted that they had not explicitly discussed with the breath operator as to who was supposed to actually perform it. Bohacz believed that certain activities were prohibited during the observation period, and listed them. Unfortunately Bohacz failed to state that regurgitating and vomiting were prohibited activities. Bohacz clearly did not know how to perform an observation period in accordance with ISP Rule 1286.310. Nor did the state have anyone testify that the defendant did not regurgitate, as rrequired by 1286.310. Bohacz claimed that he sat 4-8 feet from the defendant, who was in a holding cell, from 7:48 p.m (alleged start of observation period) to 8:14 p.m. (the time of the SECOND test). During this time, Bohacz does not recall where Toigo, was or what Toigo was doing. (pp. 64-67) Bohacz swore that the Defendant only blew in the machine once (p.66). Bohacz swore that the defendant was moved from the holding cell to the room with the breath test about 3 minutes prior to 8:14 p.m. (pp. 67-68). The defendant was brought to the machine for testing, and an air blank was performed at 8:06. (p.127). The Defendant was instructed to blow. The total time between 7:48 p.m., the start of the observation period, and 8:06, the start of the test, was only 18 minutes. This was clearly a violation of the minimum 20 minutes required under 1286.310. Clearly, no one was competently performing the observation period. "The State has the initial and ultimate burden of establishing a proper foundation for the admission of the breath test results." People v. Boshears (1992) 228 Ill.App.3d 677,685. The Illinois Supreme Court has stated that if there is a failure to prove compliance with the breathalyzer Rules, the test results are presumed inadmissible and invalid. People v. Hamilton (1987) 118 Ill.2d 153, 160.Since the record fails to establish the competence of the person allegedly witnessing the observation period, compliance has not been shown. In People v. Graney, (2d. Dist. 1992) 234 Ill.App.3d 497, 507, the Second District stated that "The purpose of requiring compliance with the Department's standards is 'that these machines are not foolproof, and require not only the correct use to obtain an accurate result, but also a knowledgeable operator to observe the test.'", citing to (Keith, 148 Ill.2d at 44, 169 Ill.Dec. 276, 591 N.E.2d 449.).
2) Failure to comply with the logbook record keeping requirements - in the instant case, the Defendant established that the logbook in question was missing test entries 081 and 082 immediately after the certification tests and prior to the Defendants test. 1286.10 defines "Logbook" as a record of "subject test records, accuracy check records, and service records." Section 1286.10 defines a "subject test record" as "the data recorded by a BAO when a subject is tested with an approved evidentiary instrument". 1286.70 states that "subject test records and accuracy check records MUST be maintained in a logbook". The State failed to show why the incomplete logbook is not a violation of the above rules. Failure to establish compliance with the rules renders the breath test inadmissible. Furhter, these absent entries proved that the logbook was not properly maintained as a business record.
3) Failure to Prove the accuracy checks were performed by a qualified person - At trial, the evidence showed that the accuracy checks were performed by "M. Rose". Section 1286.220 states that "accuracy checks shall be verified by a BAT". There are 3 classes of licensed individuals - a BAO (Breath Alcohol Operator), a BAI (Breath Alcohol Inspector) and a BAT (Breath Alcohol Technician). The State never established that the person who performed the accuracy check was a licensed BAT. Again, failure of the State to establish compliance with the rules renders the result inadmissible.
4) Proof of a malfunction rendered the result inadmissible - at trial, the evidence showed that prior to the defendant's second test, the machine performed a 3 minute timeout after a FIVE minute time period. No explanation was given by the State as to why the machine incorrectly performed this function, or why the malfunction did not affect the defendant's test. Common sense would dictate that failure of the machine to be able to calculate 3 minutes correctly, would place the ability of the machine to perform the complex identification of and quantification of alcohol molecules into question. In People v. Boughton (1995) 268 Ill.App.3d 170, the Court held that where there is evidence of a malfunction or repair within the certification/accuracy periods, the State must also show as a part of the foundation for the breath test that the malfunction or repair did not affect the accuracy of the defendant's breath test.

e) Absent the erroneous admission of the breath test, the defendant was not proven guilty beyond a reasonable doubt as to either of the DUI counts. The remaining evidence established that the defendant's speech was unimpaired, his walking was unimpaired, and he was mentally alert. All signs inconsistent with one who is under the influence of alcohol. Further, these observations cast doubt as to the accuracy of the breath test and it's relation to the Defendant at the time of his driving. The court should reverse the findings of guilty in this cause.

WHEREFORE, Defendant prays that the court reverse it's findings of guilty and enter a judgment of Not Guilty, notwithstanding it's earlier verdict.

Respectfully Submitted,

Donald J. Ramsell
Ramsell & Associates, LLC