People v. Cielak, 2016 IL App (2d) 150944 (December). Episode 271 (Duration 4:38)
Observation period lasted only 19 minutes rather than 20. Is rescission of SSS proper?
Defendant was arrested for DUI and taken to the station at around 12:30 a.m.
At around 12:43 a.m., he read the warning to defendant, which took about two or three minutes.
Prior to reading the warning, the officer began observing defendant for the mandated 20 minutes.
The report said that after the matter of a 20 minute observation period, at 1:02 he administered the breathalyzer.
Math Doesn’t Add Up
Well, simple math demonstrates the observation period only lasted 19 minutes.
The officer testified that he observed defendant both before and after he read the warning to motorists so technically he was watching him more than 20 minutes.
Upon arrival at the station the officer began to fill out paperwork, which took approximately 10 minutes. The officer testified that he began the 20-minute observation period 10 minutes before he read the warning at 12:43 a.m., while he was filling out the paperwork.
He also acknowledged that he did not explicitly make an entry in the police report as to when the observation period commenced.
Ultimately, the officer observed defendant for 29 minutes before administering the breath test.
Defendant did not burp, belch, hiccup or vomit. He blew over the limit.
The court again observed that it was not aware of any law that provided that the 20-minute observation period commences only after the warning is read to the defendant.
At issue is whether the petition to rescind the summary suspension of defendant’s driving privileges should have been granted.
Specifically, defendant contends that the officer did not substantially comply with the 20-minute observation period as required by section 1286.310 of the Illinois Administrative Code (20 Ill. Adm. Code 1286.310).
Section 1286.310 provides:
“… a) Prior to obtaining a breath analysis reading from a subject, the [breath-analysis operator] or another agency employee shall continuously observe the subject for at least 20 minutes.
1) During the 20[-]minute observation period the subject shall be deprived of alcohol and foreign substances and shall not have regurgitated or vomited.”
The trial judge credited the officer’s consistent testimony that he began the 20-minute observation period before he read the warning and that he observed defendant for 20 continuous minutes before he gave the breath test.
The court did not credit the slight inference from the police report’s lacking a start time that the observation period might have begun after the officer read the warning.
Either way, here, there was “substantial compliance” with the 20-minute observation period.
No evidence was presented that remotely suggested that defendant was not within the officer’s direct line of sight or peripheral vision during the entirety of the time that they were at the police station.
Furthermore, to the extent that defendant appears to argue that the 20-minute observation period should start only after a defendant is read the warning, the court rejected such argument.
Nowhere does the regulation provide that the 20-minute observation period begins only after the warning is read to the defendant. If the court were to construe the regulation as requiring as much, it would be reading into it conditions the drafters did not include.
Accordingly, the breath test was properly administered, and the trial court did not err in finding that defendant failed to make a prima facie case for rescission.