City of McHenry v. Kleven, 2019 IL App (2d) 180758 (August). Episode 671 (Duration 18:27)

Officer is gone for about 3 minutes of the 20 minute observation period.

Gist

Defendant wins his motion to exclude the breathalyzer results in this DUI case because the officer did not faithfully honor the 20 minute observation rule.

The Illinois Administrative Code 20 Minute Observation Rule

Defendant’s motion relied on the following Illinois Administrative Code provision:

“(a) Prior to obtaining a breath analysis reading from a subject, the operator *** 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 vomited.

(2) If the subject vomits during the observation (deprivation) period, the process shall be started over by having the individual rinse the oral cavity with water.

(3) If the individual continues to vomit, alternative testing shall be considered.”

20 Ill. Adm. Code 1286.310(a).

Facts

During the 20-minute observation period, the officer twice left the room.

In these absences, defendant could have vomited or placed some substance into his mouth. The video showed that defendant had done none of these things between 12:10:36 and 12:30:36. Thus, the booking room twice, once for 2½ minutes and once for half a minute.

When the officer got back after the 2 minute absence he asked the defendant if he belched or vomitted an he said “no.”

Cases Commenting On Substantial Compliance of the 20 Minute Observation Period

▲ The court noted that, under People v. Ebert, 401 Ill. App. 3d 958, 960 (2010), the 20-minute rule requires only substantial, not strict, compliance.

▲ People v. Chiaravalle, 2014 IL App (4th) 140445, ¶ 9, found substantial compliance even though the officer had his back turned to the defendant “for minutes at a time.”

▲ In People v. Bergman, 253 Ill. App. 3d 369 (1993), the officer twice left the room, for one minute or less each time, and moved around the room at other times. However, he kept the defendant within his hearing and his line of sight the whole time. The appellate court agreed with the trial court that the officer had substantially complied with the rule.

▲  In re Summary Suspension of Driver’s License of Ramos, 155 Ill. App. 3d 374, 376 (1987), the court held that the officer substantially complied with the rule even though he had spent part of the period working on the breath machine; the officer had kept the defendant within his peripheral vision and had observed him directly from time to time.

▲ See also People v. Caraballo, 2019 IL App (1st) 171993, ¶ 24; People v. Eagletail, 2014 IL App (1st) 130252, ¶ 19; People v. Aleliunaite, 379 Ill. App. 3d 975, 980 (2008). These all erroneously list regurgitation as a disqualifying factor.

▲ In People v. Bertsch, 183 Ill. App. 3d 23 (1989), we held that, because the regulation’s plain language did not include belching as a disqualifying act, we would not read it into the regulation.

Trial Court Granted The Motion

The court reasoned, the officer’s absences, for more than two minutes and then for half a minute, failed the strict compliance standard. If asking a detainee whether he has belched, vomited, or eaten during the 20-minute observation period and receiving the answer “no” could constitute substantial compliance, the requirement of actually observing the detainee would be negated.

Moreover, relying on the self-report of a person who is presumably impaired is inherently dubious.

The court explained,

“theoretically, Ray Charles could serve as the observer. How Ray Charles could ever tell us that the person did not put something in their mouth is beyond me.”

The court noted that this officer was completely gone and he could neither see nor hear defendant during his absences. In neither Ebert nor Chiaravalle had the officer left the room altogether. This officer had done so twice.

Although only substantial compliance was required, the trial judge said

“leaving the room not once but twice for in total over three minutes is nobody’s definition of substantial compliance…the problem that we have is we are relying on self-reporting for someone who was never told to pay attention to whether they burped, hiccuped, or vomited *** or did anything else, and I’m relying on a video that is not a straight on video of the guy’s face. It’s a video from the top looking down. You can’t even see his mouth the vast majority of the time. I can’t even allow the video to substitute for the 20-minute observation period because I can’t clearly see what’s happening with his mouth while the officer is gone from the room. The 20-minute observation period means an officer, under all of the existing case law, has to at least be in the room for the 20 minutes. That wasn’t done here. And so the foundation has not been laid.”

Officer’s Conduct Was Deficient

No doubt the officer was completely absent from the booking room for more than two minutes. During his absences, he could not see, hear, or otherwise observe defendant. Thus, it strains common usage to conclude that, during the 20-minute observation period, the officer “continuously observed” defendant as is required under the Administration Code.

The reviewing court said the officer’s conduct, did not substantially comply with the 20-minute rule.

…But There May Still Be Substantial Compliance

However, under Ebert, a court may still find substantial compliance even if an officer completely failed to observe the defendant for a significant period. This depends on the existence of evidence that compensates for the officer’s inability to say whether, in a given period, the defendant did something that the regulation recognizes as inimical to reliance on the breath-test result.

In Ebert, such evidence came in the form of the defendant’s testimony that, during the 20-minute observation period, he did not put anything into his mouth, regurgitate, vomit, or belch. Ebert, 401 Ill. App. 3d at 960. Based on this evidence, we held that the officer’s failure to observe the defendant for part of the 20-minute period was not crucial. Although in Ebert we stated that the officer had substantially complied with the rule, it would have been more precise to say that the lack of substantial compliance was harmless, because evidence showed that the officer’s failure to keep the defendant under continuous observation did not render the test result unreliable.

We did not emphasize the degree of the officer’s fidelity to the regulation’s requirements, but instead considered whether his deviation affected the integrity of the testing process.

Clearly, we spoke not to compliance but to prejudice.

We held that the failure to adhere to the regulation did not affect the integrity of the testing process—which was tantamount to holding that the defendant suffered no prejudice. The evidence proved that the test had not been rendered unreliable by the officer’s failure to observe the defendant continuously; the defendant testified that he had not performed any act that the regulation listed as endangering the reliability of the test.

Was The Breath Test Reliable? This Is What Matters

The determinative question is whether the evidence compensated sufficiently for the officer failure, for more than two minutes, to observe defendant in any way.

The state notes that the test was, nonetheless, reliable because 

(1) Upon returning from his first absence, the officer saw nothing to suggest that defendant vomited or ate or drank anything while he had been away
(2) Upon returning the officer asked defendant whether he had vomited, burped, or eaten in the preceding half hour and
(3) Most important, the video didn’t show any vomiting.

The Better Practice

The court could not lightly dismiss the trial court’s concerns.

The officer’s laxity created serious problems.

But, for whatever reason, the officer attended to business elsewhere for a portion of that time.

Analysis – Belching Is Not Mentioned

The issue is whether his failure to observe defendant continuously was fatal to reliance on the result of the breath test. We hold that it was not.

We have viewed the video with care. Despite its limitations, which the court noted, it compensated for the officer’s lapses. In this regard the video was more than sufficient evidence of a reliable breath test. For now, the officer’s testimony that he observed nothing upon returning from his first absence is irrelevant.

Additionally, the reviewing court did not consider defendant’s response of “no” when the officer asked him if  he burped, vomited or ate anything while he was gone.

The regulation only says that during the 20-minute observation period “the subject shall be deprived of alcohol and foreign substances and shall not have vomited.” 20 Ill. Adm. Code 1286.310(a)(1).

The reference to “foreign substances” is broad enough to comprehend eating, drinking, and smoking, as case law has recognized. It is noteworthy, however, that although the trial court and the parties seem to have assumed that the regulation also presumes that belching renders a test result unreliable, the text of the regulation does not support this assumption.

Belching is not mentioned.

This Stuff Is More Like An Affirmative Defense

Belching is in the nature of an affirmative defense.

A defendant may raise the issue in order to establish the result’s inaccuracy or unreliability despite compliance with the foundational requirements for admission. To the extent that this defense remains viable, defendant here did not raise it.

The point is not that defendant may have belched during the observation period. There was no evidence that he belched, and defendant himself never brought up the issue.

The Video Doesn’t Show Vomiting

Thus, in evaluating the sufficiency of the video as compensation for the officer’s failure to observe defendant for the full 20-minute period, we shall limit ourselves to the video as it relates to establishing whether defendant did not vomit or place a foreign substance into his mouth.

True, the angle of the video camera only shows defendant from some height instead of at his level as he sat on the stool. At times, defendant put his head down, obscuring his mouth from the camera. Nonetheless, for the periods at issue, the video is sufficiently clear for our purposes.

It is clear that defendant does not vomit or put anything into his mouth.

The video thus demonstrates to our satisfaction that during the officer’s absences defendant did not commit a disqualifying act. The trial court was concerned primarily that the camera did not show defendant’s mouth. However, this limitation of the recording is of no consequence, as the officer ascertained before leaving that defendant had no foreign substance in his mouth and the video negates any possibility that he put anything into his mouth while he was gone.

Holding

We hold that the trial court erred in granting defendant’s motion in limine to exclude the breath-test result.

We commend the court for its concern with the questionable practice in this case, but we cannot accept its conclusion that the officer’s deviation from the prescribed procedure warranted the exclusion of the evidence.

Reversed and remanded.

See Also

• Episode 271 – People v. Cielak, 2016 IL App (2d) 150944 (December) (19 minute observation period is substantial compliance)
• Episode 454 – People v. Ernsting, 2018 IL App (5th) 160330 (January) (blood in the mouth is not substantial compliance and defendant successfully attacked the breathalyzer’s reliability)
• Episode 613 – People v. Caraballo, 2019 IL App (1st) 171993 (March) (substantial compliance has no place in determining if an officer is properly certified)