                             2018 IL App (2d) 151142 

                                  No. 2-15-1142

                          Opinion filed February 21, 2018 

______________________________________________________________________________

                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 14-DT-2031
                                       )
NINA M. ROBLEDO,                       ) Honorable
                                       ) Veronica M. O’Malley,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion. 

       Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.


                                            OPINION


¶1     Following a jury trial in the circuit court of Lake County, defendant, Nina M. Robledo,

appeals her conviction of driving with a blood alcohol concentration (BAC) of 0.08 or more (625

ILCS 5/11-501(a)(1) (West 2014)).     We affirm.

¶2                                     I. BACKGROUND

¶3     On September 28, 2014, at 1:45 a.m., 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.   During that brief time, Bond

did not notice anything unusual about the way the car was being driven.      Defendant exited the
2018 IL App (2d) 151142


car and walked behind a house on the property.     Bond approached the car’s passenger to advise

her that a headlight was 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.

Bond arrested defendant for driving with a suspended license, and she agreed to perform field

sobriety tests at the police station.

¶4      Following defendant’s performance of the field sobriety tests, Bond informed defendant

that she was “borderline.” 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.      Bond arrested defendant for driving

under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2014)) and driving with a BAC

of 0.08 or more.

¶5      At trial, Bond testified to the above facts.    He also testified that he was a certified

breath-analysis operator and that the breath-test machine checks itself monthly for accuracy.

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.

¶6      Defendant did not contest Bond’s testimony or the admissibility of the breath-test result.

However, defendant moved for a directed verdict on the basis that her actual BAC could have



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2018 IL App (2d) 151142


been below the legal limit, given the machine’s margin of error.          The trial court denied the

motion, and defendant repeated her argument to the jury.         The prosecution argued to the jury

that the margin of error meant that defendant’s BAC actually exceeded 0.082.          The jury found

defendant not guilty of driving under the influence of alcohol, but it found her guilty of driving

with a BAC of 0.08 or more.         The court sentenced defendant to a period of supervision and a

fine. 1   Defendant filed a timely appeal.

¶7                                           II. ANALYSIS

¶8        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.                Both parties

represent that this is an issue of first impression and point us to decisions of foreign jurisdictions.

While no Illinois court has specifically addressed the issue of a breath-test machine’s margin of

error, it is well settled in Illinois that any question of the reliability of evidence is properly

considered by the jury in determining what weight to give that evidence.         People v. Lipscomb,

215 Ill. App. 3d 413, 432 (1991); People v. Mehlberg, 249 Ill. App. 3d 499, 539 (1993).           The

relevant inquiry is whether, when viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. People v. Luth, 335 Ill. App. 3d 175, 178 (2002).

¶9        Section 11-501(a)(1) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(1)

(West 2014)) provides that a person shall not drive or be in actual physical control of any vehicle

while the alcohol concentration in the person’s blood is 0.08 or more. The necessary elements

of the offense are (1) the driving or actual physical control of a motor vehicle and (2) a BAC of

          1
              Defendant was also convicted of driving with a suspended license and driving without

insurance. She does not appeal those convictions.



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2018 IL App (2d) 151142


0.08 or more. People v. Smith, 2015 IL App (1st) 122306, ¶ 28.             The trier of fact must

determine the credibility of witnesses and the weight to give their testimony, resolve conflicts in

the evidence, and draw reasonable inferences from the evidence.     Luth, 335 Ill. App. 3d at 178.

¶ 10   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) (West 2014).     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) (West 2014).     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. 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.

¶ 11    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, or the next accuracy check after the subject test

was within the accuracy tolerance, and (4) accuracy checks have been done in a timely manner,

meaning not more than 62 days passed between the last accuracy check and the subject test.      20

Ill. Adm. Code 1286.200 (2009).      When these conditions are met, a rebuttable presumption

exists that the instrument was accurate at the time of the subject test.      20 Ill. Adm. Code

1286.200 (2009).



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2018 IL App (2d) 151142


¶ 12    Here, the evidence shows that Bond was a certified breath-analysis operator when he

administered the breath test to defendant and that the particular breath-test machine used to

perform the test was approved by the Department.              Bond testified, and printouts of the

certification checks show, that the machine satisfactorily performed an accuracy test on

September 2, 2014 (26 days prior to the subject test), and on October 1, 2014 (3 days after the

subject test).   Bond testified that the machine’s dry gas container is calibrated to produce a

reading of 0.079 during the accuracy checks.        The printouts show that the machine’s readings

were 0.079 on both occasions. Thus, the State established that the machine was accurate at the

time of defendant’s test. Defendant argues that there is no evidence that the margin of error did

not apply to the accuracy checks, but that argument is specious.       If there had been an error, the

machine would not have produced a reading of 0.079 during the accuracy tests.

¶ 13    As noted, defendant did not contest the admissibility of the breath-test result.          The

result’s reliability was, therefore, for the jury to determine. 2   In People v. Barbic, 105 Ill. App.

2d 360 (1969), a prosecution for speeding, the evidence showed that a radar device was set for a

speed of 65 miles per hour and tested perfectly at all times on the day of the defendant’s arrest.

Barbic, 105 Ill. App. 2d at 362.      The evidence showed that the radar device had a possible

percentage of error of less than 1%.      Barbic, 105 Ill. App. 2d at 362-63.     The defendant was

arrested for driving 62 miles per hour in a posted speed zone of 50 miles per hour, based upon

the radar reading.     Barbic, 105 Ill. App. 2d at 361.        The defendant testified that he was

traveling 50 miles per hour, as shown by a tachograph in his truck that recorded his speed.

Barbic, 105 Ill. App. 2d at 365.     The trial court found the defendant guilty, and, on appeal, the

        2
            At oral argument, defendant conceded this point, which fundamentally contradicts her

position that no rational juror could find her guilty.



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defendant argued that the State failed to prove him guilty beyond a reasonable doubt, because the

radar unit was subject to error in both its structure and its operation.   Barbic, 105 Ill. App. 2d at

362.   This court affirmed, noting that the radar device tested accurately both before and after the

defendant’s arrest. Barbic, 105 Ill. App. 2d at 368. We also noted that both the radar device

and the tachograph were subject to error and that it was the function of the trier of fact to

determine the weight to be afforded the evidence.      Barbic, 105 Ill. App. 2d at 370-71.

¶ 14   Similarly, the Illinois Appellate Court has held that the reliability of DNA evidence and

the weight to be given it are issues for the jury to decide.    Lipscomb, 215 Ill. App. 3d at 432-33.

In People v. Eyler, 133 Ill. 2d 173, 212 (1990), our supreme court likewise held that the

reliability of fingerprint evidence was for the jury to weigh where there was evidence that a

technique known as “supergluing” fingerprints could result in misidentification.

¶ 15   Illinois law is dispositive of this appeal.          We look to the decisions of foreign

jurisdictions to provide persuasive authority for our analysis only when there is no Illinois

authority on a particular issue. People v. Bensen, 2017 IL App (2d) 150085, ¶ 30.            Thus, we

do not rely on the foreign cases cited by the parties.     Nevertheless, we will briefly discuss those

cases relied upon by defendant.

¶ 16   Defendant’s reliance on State v. Bjornsen, 271 N.W.2d 839 (Neb. 1978), is misplaced.

In Bjornsen, the result of a blood test showed the defendant’s intoxication.           Bjornsen, 271

N.W.2d at 840.     However, on cross-examination, the State’s expert conceded that the blood

test’s margin of error made it possible that the defendant’s actual BAC was below the legal limit

of intoxication.   Bjornsen, 271 N.W.2d at 840.          There was no such concession in our case.

Other cases that defendant cites are similarly inapposite.     In Haynes v. State, 865 P.2d 753, 756

(Alaska 1993), although the court held that the breath-test machine’s margin of error must be



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2018 IL App (2d) 151142


applied in the defendant’s favor, there was no evidence that the machine had been certified to be

accurate.    In State v. Boehmer, 613 P.2d 916, 918 (Haw. Ct. App. 1980), the court followed

Bjornsen and held that evidence of the breath-test machine’s accuracy was irrelevant.          That

holding is contrary to Illinois law, as section 11-501.2(a) of the Code provides that breath-test

results are considered valid if the Department’s procedures are followed.      In State v. Prestier,

455 N.E.2d 24, 27 (Ohio, New Philadelphia, Mun. Ct. 1982), the court held that the jury should

not be instructed on a statutory presumption of intoxication where the defendant tested between

0.10 and 0.109, due to the subject machine’s margin of error. Prestier is inapplicable, because

the jury in our case was instructed that the presumption of intoxication did not apply to the

charge of driving with a BAC of 0.08 or more (see Illinois Pattern Jury Instructions, Criminal,

No. 23.30 (approved Apr. 4, 2014)). Similarly, People v. Campos, 188 Cal. Rptr. 366 (App.

Dep’t Super. Ct. 1982), involved an instruction on the presumption of intoxication, and it is

distinguishable for the same reason.

¶ 17      Essentially, defendant argues that we must, in all cases, require the prosecution to prove

that a test result exceeds 0.08 by the margin of error recognized in the testing process.

Defendant arrives at this conclusion because, according to defendant, section 11-501(a)(1)

requires the prosecution to prove a defendant’s actual BAC, as opposed to merely a breath-test

result.    By focusing solely on the language in section 11-501(a)(1), however, defendant ignores

the other pertinent provisions of the Code.     A statute must be read as a whole, and all relevant

parts should be considered. People v. Reed, 177 Ill. 2d 389, 393 (1997). Section 11-501.2(a)

provides that a chemical analysis is considered valid when it is performed according to the

standards promulgated by the Department.          Defendant’s interpretation would eliminate that

provision.     Under defendant’s interpretation, her breath-test result of 0.082 would have to be



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presumed invalid, the opposite of what the legislature intended.        We cannot rewrite a statute.

People v. Davis, 351 Ill. App. 3d 215, 218 (2004).       “The obvious legislative intent in enacting

section 11-501(a)(1) was to impose a strict liability on drivers found to be impaired by an alcohol

concentration of [0.08] or above.”     People v. Ziltz, 98 Ill. 2d 38, 42 (1983).

¶ 18      We reiterate that defendant did not object to the breath-test result’s admission into

evidence.     If the evidence shows that the scientific procedures used gave an unreliable result,

the court can exclude the evidence.           Lipscomb, 215 Ill. App. 3d at 432.         Otherwise,

“[c]hallenges to the accuracy of the scientific process in question are properly held before the

jury by cross-examination of prosecution witnesses and presentation of the defendant’s own

witnesses.”     Mehlberg, 249 Ill. App. 3d at 539.        Here, the jury heard that the breath-test

machine was subject to a 0.005 margin of error, and the jury also heard Bond’s testimony and

received the printouts of the readings showing the results of the accuracy tests and defendant’s

result.     The jury was properly instructed.        Consequently, the weight to be given the

prosecution’s evidence was for the jury to decide. Viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found that defendant was guilty

of driving with a BAC of 0.08 or more, based upon the reading taken from the breath-test

machine.

¶ 19                                     III. CONCLUSION

¶ 20      For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 21      Affirmed.




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