People v. Ernsting, 2018 IL App (5th) 160330 (January). Episode 454 (Duration 9:07)

Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC.

Car Crash

At approximately 11 p.m., the defendant crashed her 2011 Chevrolet Camaro into an unoccupied pickup truck that was parked along a street near her home in Steeleville. The defendant’s dog was riding with her at the time, and the impact of the collision caused the car’s airbags to deploy. At the scene of the accident, the defendant stated that she did not require medical treatment and that her dog had distracted her driving.

She exhibited signs of alcohol impairment, however, and failed multiple field sobriety tests. As a result, she was arrested and charged with DUI (625 ILCS 5/11-501(a)(2) (West 2016)) and was transported to the Randolph County jail for the administration of a breath-alcohol test.

The Breath Test

The defendant’s breath-alcohol test was administered by Randolph County Sheriff’s Deputy Kyle Colvis, using an Intox EC/IR II breath-test machine. The testing procedure was video recorded, but the recording has no audio. After the defendant’s first attempt to provide a sufficient breath sample failed because she inserted the machine’s mouthpiece too far into her mouth, Colvis removed the mouthpiece with his right hand, purged the machine, and then reinserted the mouthpiece so that the defendant could try again.

The defendant’s second attempt was successful, and the machine indicated that her BAC was 0.215.

However, the officer had not checked the defendant’s mouth for blood prior to her performance of the breath test, even though he had been trained to check a subject’s mouth prior to and after the pre-test 20-minute observation period. 

She was thus charged with operating her vehicle while her BAC was 0.08 or more (id. § 11-501(a)(1)).

Mouth Check

We note that the “DUI checklist” states, “CHECK MOUTH PRIOR TO AND AFTER 20 MINUTE PERIOD,” but does not reference “foreign substances.” Colvis testified that he was not “familiar with the Illinois Administrative Code regulations,” but he agreed that blood in a subject’s mouth would be considered a “foreign substance” such as chewing gum or chewing tobacco. Colvis further agreed that if a subject had blood in the mouth, a blood or urine test would be preferable to a breath test and that he would “at least” have the subject “rinse their mouth out” and then restart the 20-minute observation period. Colvis acknowledged that the purpose of checking a subject’s mouth before and after the observation period is to ensure reliable test results.

Issue

Defendant changes the reliability of the tests used in her DUI prosecution.

The defendant’s motion specifically alleged, among other things, that when her car’s airbags had deployed, she had “sustained an injury to her mouth which caused a cut and, therefore, bleeding, in the inside of her mouth.” The motion further alleged that assuming that there was any measurable amount of alcohol in the blood, the blood in the defendant’s mouth would have materially affected the reliability of the test results.

Did She Act Like She Was .215?

Colvis acknowledged that the defendant had not stumbled or staggered during the testing procedures. Colvis did not recall whether the defendant had questioned the breath-test results in his presence. The defendant’s husband, Dale Ernsting, testified that on May 7, 2016, he and the defendant had purchased a used Jeep in the morning and had spent the day running errands in it.

Ernsting and Defendant stated that the defendant had not consumed any alcoholic beverages during the day, but she had three beers during a family get-together at a restaurant later that evening. Ernsting estimated that the defendant had consumed the three beers between 5:30 p.m. and 9 p.m. Ernsting indicated that the defendant had not consumed any additional alcohol after they returned home.

Ernsting testified that later that night, the defendant had called him advising that she had hit a parked vehicle down the street and that he needed to meet her and take their dog back to their house. Ernsting indicated that before the defendant had left the house with the dog, she had not been impaired by alcohol, and he had no concerns that she “might be picked up by the police because of alcohol.”

Ernsting testified that the defendant rarely drove with their dog in the car and that the dog had been “really hyper” that night because they had been gone all day.

The defendant stated that after taking the breath-alcohol test, she had questioned the results as being extremely high.

The Injury

The defendant explained that her dog weighed 85 pounds and had been jumping around the car and licking her face. She further explained that immediately before she hit the parked truck, her dog had obstructed her vision, and she had pushed him off of her.

The defendant indicated that when her car’s airbags deployed, one of the bags had hit her in the face, causing a tooth to “puncture a spot on [her] lip.” The defendant further indicated that the puncture wound had not been serious enough to warrant medical attention.

The defendant acknowledged that she had not advised Colvis that she had cut her lip or that she had blood in her mouth.

Failed The Field Sobriety Tests

The defendant testified that she had difficulties performing the field sobriety tests because she had been wearing flip-flops and had recently injured one of her knees. She further testified that her red eyes and slurred speech had been caused by her head’s contact with the deploying airbag.

DUI Expert Ronald Henson

Ronald Henson of Beron Consulting and Labworks testified as an expert for the defense.

Henson testified that he was familiar with the Intox EC/IR II breath-test machine and the factors that might affect the accuracy of its test results. Henson testified that prior to the hearing, he had interviewed the defendant and had reviewed the video of her taking the breath test at the Randolph County jail. With respect to the administration of the defendant’s breath test, Henson testified that Colvis had done two things wrong.

No Mouth Check

Most notably, Colvis had failed to check the defendant’s mouth before and after the pretest 20-minute observation period. Stating that the defendant had reported that she had been “actively bleeding” from a cut on her inner lip, Henson explained that blood in a subject’s mouth will “inflate a breath test” if the blood contains any amount of alcohol. Henson indicated that the increase in alcohol molecules caused by “blood leaking inside the mouth” disrupts the equilibrium upon which the breath test is based and will thus lead to “overreported” results.

Henson stated that blood in a subject’s mouth is also considered a “foreign substance.” Henson indicated that a “foreign substance” is something that is not ordinarily in a subject’s mouth. Henson further noted that the blood in the defendant’s mouth had likely been capillary blood, which would have contained higher alcohol concentrations than her venous blood. Henson testified that had Colvis checked the defendant’s mouth and observed the blood, he should have requested that she submit to a blood test. Henson further testified that pursuant to “recommended procedures,” Colvis should not have removed and reused the machine’s mouthpiece after the defendant’s initial attempt to provide a sufficient breath sample.

Henson explained that Colvis should have used a new mouthpiece to avoid possible contamination by any substances that might have been on his hands or by any alcohol molecules that might have been in the condensate of the used mouthpiece.

Unreliable Breath Test Results

Henson opined that, given the blood in the defendant’s mouth and Colvis’s handling of the mouthpiece, the results of the defendant’s breath test were not reliable within a reasonable degree of scientific certainty. Henson also testified that the defendant’s appearance on the video recording of the test procedure, which was shown at the hearing, further supported his opinion. Henson indicated that the defendant’s ability to walk around with “no problem” was inconsistent with a BAC reading of 0.215.

When cross-examined, Henson acknowledged that there were no administrative regulations governing the changing of a mouthpiece during a breath test.

He further acknowledged that the regulation referencing “foreign substances” does not specify that blood is considered a foreign substance.

State Says Reliable

In support of its position that the results of the defendant’s breath test were reliable, the State adduced the following evidence.

Colvis testified that when he spoke with the defendant at the accident scene, she had slurred speech, “glassy red” eyes, and a strong odor of alcohol on her breath. She also admitted that she had been drinking beer prior to the incident. Colvis testified that he had the defendant perform field sobriety tests and that her difficulties with the “walk and turn test” and the “one leg stand test” had confirmed his suspicions that she had been DUI.

Colvis subsequently found a cold, unopened can of beer in the defendant’s car.

Colvis testified that the defendant had never indicated that she had blood in her mouth and had claimed that she had not been injured in the accident. Colvis did not observe any blood on the defendant’s person or on the mouthpiece she had used. Colvis indicated that when he removed the mouthpiece from the machine, he had not touched either end of it and had no contaminants on his hands.

Colvis indicated that the machine had been certified as accurate on April 4, 2016, and May 19, 2016, and had been functioning properly when he administered the defendant’s breath test.

On appeal, the State emphasizes that because the blood in the defendant’s mouth was in her body when the 20-minute observation period commenced, the blood was not a “foreign substance,” as defined by the Code. Suggesting that the trial court misinterpreted the Code and granted the defendant’s motion to suppress and petition to rescind based solely on Henson’s testimony that the blood in the defendant’s mouth was a “foreign substance,” the State maintains that the court’s judgment was erroneous as a matter of law.

The Administrative Code

Section 1286.310 of Title 20 of the Illinois Administrative Code (Code) provides that

“[p]rior to obtaining a breath analysis reading from a subject,” the subject must be continuously observed for at least 20 minutes, during which “the subject shall be deprived of alcohol and foreign substances and shall not have vomited.” 20 Ill. Adm. Code 1286.310(a)(1) (2004).

The Code defines “ ‘[f]oreign [s]ubstance’ ” as “any substance not in the subject’s body when a 20­ minute observation period is commenced, excluding a substance introduced due to normal breathing.” 20 Ill. Adm. Code 1286.10 (2015).

Statutory Summary Suspension Hearing

A defendant is entitled to relief where she makes a prima facie case that the results of her breath test are not reliable and the State fails to rebut her prima facie case with evidence that the results are reliable.

To make a prima facie case of unreliability, the defendant must show that

(1) the breath test was not properly administered,
(2) the regulations regarding the testing were violated, or
(3) the results are not accurate or trustworthy.

At the outset, we note that the Code’s definition of “foreign substance” was never before the trial court, and the court was never asked to consider it in conjunction with the evidence adduced at the hearing. The definition was merely alluded to during Henson’s, Shovan’s, and Colvis’s testimony.

Analysis

The State’s argument on appeal ignores that Henson did not testify that the results of the defendant’s breath test were unreliable merely because the blood in her mouth was a “foreign substance.” He testified that due to the increase in alcohol molecules caused by blood in a subject’s mouth, blood is a foreign substance that will “inflate a breath test” and lead to “overreported” results.

As the trial court noted, Henson’s “main point [had been] that the blood was a contaminant,” and the State failed to rebut Henson’s expert opinion that “blood is a foreign substance[,] and it affects the reliability of the test.”

The State’s argument further ignores that whether a defendant’s breath test was administered in compliance with the provisions of the Code is a distinct inquiry from whether the defendant’s test results are ultimately reliable and that reliability “is the paramount concern.”

In the present case, the defendant testified that she had blood in her mouth when she took the breath test, and the trial court credited her claim. She also presented unrebutted expert testimony that the blood in her mouth was a contaminant that affected the reliability of her test results, and the court accepted her expert’s opinion.

Thus, regardless of whether blood technically falls within the Code’s definition of “foreign substance,” the defendant presented a prima facie case that the results of her breath test were untrustworthy, and the State failed to rebut her prima facie case. Accordingly, we cannot conclude that the trial court’s judgment was against the manifest weight of the evidence, and we reject the State’s contention that the court’s judgment should be reversed as a matter of law.

Holding

For the foregoing reasons, the trial court’s judgment granting the defendant’s motion to suppress and petition to rescind is hereby affirmed.

The State’s reliance on our decision in People v. Van Bellehem, 389 Ill. App. 3d 1129 (2009), is misplaced (chewing gum would not have qualified as a foreign substance as defined in the Administrative Code but more importanlty defendant did not provide proof that the reliability of the test has been affected).