                                    2019 IL App (1st) 171993

                                                                                FIRST DIVISION
                                                                                  March 29, 2019




                                          No. 1-17-1993

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
                  Plaintiff-Appellee,           )     Cook County
                                                )
v.                                              )     No. YW-621-780
                                                )
PEDRO CARABALLO,                                )     Honorable
                                                )     Donald Havis
                  Defendant-Appellant.          )     Judge Presiding.
______________________________________________________________________________

       JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Justices Griffin and Walker concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant Pedro Caraballo was convicted of one count of driving with an alcohol

concentration of .08 or more 625 ILCS 5/11-501(a)(1) (West 2012)) and one count of driving

under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2012)) on November 10,

2013. His sole contention on appeal is that the State did not lay a proper foundation for

admission of the results of a breathalyzer test because the administrator of the test was not

certified at the time the test was given. Specifically, defendant argues that the trial court erred

when it did not exclude the result of a breathalyzer test administered to defendant because the

officer who administered the test was not licensed at the time he administered it. For the

following reasons, we agree with defendant that the results of the breathalyzer test administered
1-17-1993

to defendant should have been excluded because Officer Compton was not licensed at the time

the test was administered.

¶2                                       BACKGROUND

¶3     Before trial, defendant filed a motion in limine to exclude the result of a breathalyzer test

administered by Officer James Compton on November 10, 2013. At a hearing on the motion,

defendant argued that one of the requirements for the administration of a breathalyzer test was

that the administrator must be licensed by the State at the time of the test. Defendant argued that

Officer Compton was not licensed on the date in question and therefore the breath ticket could

not be admitted as evidence against him. The State responded that although Officer Compton

was not licensed on the day the test was administered, Officer Compton’s license to administer

the test had expired five days before the test and he was recertified the day after he administered

the test on defendant. The trial court granted defendant’s motion to suppress the breathalyzer.

¶4     The State filed a motion to reconsider arguing that the certification to administer the

breathalyzer was “just a formality” because the real test was whether the officer knew what he

was doing and whether the results were reliable. On August 14, 2015, the court ordered the

defendant to respond and indicated that a hearing on the State’s motion to reconsider was

necessary. The court stated that the hearing would be on the limited issue of whether Officer

Compton was certified at the time of the breathalyzer test, stating that if “he’s not certified then

the results don’t come in.” At some point between August 14, 2015, and February 10, 2016, the

trial court granted the State’s motion to reconsider. Defendant did not include the report of

proceedings from August 14, 2015 to February 10, 2016, in the record on appeal.

¶5     On February 10, 2016, defendant moved the court to reconsider its order granting the

State’s motion to reconsider. Defendant argued that the trial court was correct in the first instance


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when it found that because Officer Compton was not certified when he administered the

breathalyzer test, the breathalyzer result was not admissible evidence. The case was then

continued for a hearing to determine whether, despite his lack of certification, Officer Compton

was knowledgeable and the test was reliable.

¶6     At the March 28, 2016, hearing, Officer Compton testified to his 11 year employment

with the Hickory Hills police department and his specific training for the administration of breath

tests through “a class put on through NEMRT at the Burbank Police Department” in 2006 or

2007. He also took a three-day certification class that required him to take practical and written

exams relating to the operation of a breathalyzer machine. After passing these exams, Officer

Compton was certified to operate breath machines, specifically the Intoximeter EC/IR II used by

the Hickory Hills police department, and he was recertified in 2010. Compton testified that his

certification expired on November 5, 2013. Officer Compton administered the breath test at issue

to defendant on November 10, 2013, and recertified his license the following day, November 11,

2013, and his certification was valid at the time of the hearing.

¶7     In terms of administering the test, in order to operate the machine, Officer Compton was

required to enter a defendant’s information such as his name, the date, the defendant’s birth date,

the defendant’s driver’s license number, as well as the officer’s name and operator ID. After this

information is entered, the instrument will “purge itself.” Then Officer Compton placed a new

mouthpiece on the machine. The mouthpiece came out of a sealed bag and was replaced every

time he performed a test. If the machine was not working properly, an error message would

appear on the screen.

¶8     Compton testified to the required procedures in the administration and operation of the

breathalyzer machine, that he followed these procedures when administering the test to


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defendant and that these procedures were performed to the standards set by the Illinois state

police. Compton stated that when he recertified his license to administer breath tests on

November 11, 2013, he did not learn of any new procedures that would have changed the process

of the test he administered to defendant. Compton estimated that during his 11 years with the

Hickory Hills police department he administered about 75 to 100 breath tests, and that he has

been certified to administer breath tests “either three or four times” in his career with the police

department. He also stated that the breathalyzer machines are checked for accuracy every “sixty-

some days by the Illinois state police.”

¶9     After hearing Officer Compton’s testimony, the trial court allowed the breathalyzer test

and result to be used at trial. The court found:

               “That the operator beyond a doubt was knowledgeable as far as his knowledge as

               far as the machine, how it operates, things of that nature. And at this juncture right

               now, the only thing the State has to prove, according to the Court’s opinion, is

               that the machine operated reliable [“sic”]. In this case, the machine gave out a

               result in this case. If it did not give out a result, it would give a refusal-not a

               refusal, a rejection at this point, according to the officer’s testimony. So based

               upon this point, the Court is going to allow the Breathalyzer to be used at trial.

               And now we’re at a different standard now. So your motion is granted.”

¶ 10   On the day of trial, April 4, 2016, the State filed a motion in limine asking the court to bar

evidence that Officer Compton’s breathalyzer certification had expired at the time of the arrest.

Defendant opposed the motion on the basis that it would prevent the defense from arguing a

relevant fact. The court granted the State’s motion, stating “the mere fact that the breathalyzer’s




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operator’s certifications lapsed for a period of time doesn’t make it an issue of fact. It’s an issue

of law at this point.”

¶ 11    At trial, Officer Compton testified that he was formally trained to detect and apprehend

drivers impaired by alcohol. On November 10, 2013, he was stopped at a stop sign in his marked

patrol vehicle when he observed a vehicle pass him and “the passenger’s side tires strike a curb,

go over the curb, travel through the grass, just miss a tree and then come back into the lane of

traffic.” As the vehicle came back into the lane of traffic, “the driver’s side tires then crossed the

solid yellow line before coming back into the road.” Officer Compton then initiated a traffic stop

based on his observations. He identified defendant in open court as the driver of the vehicle.

Officer Compton observed that defendant had “glassy, bloodshot eyes” and “highly slurred”

speech. Defendant also had a strong odor of alcohol coming from his mouth.

¶ 12    Defendant told Officer Compton that he had a little to drink. Defendant attempted to hand

Officer Compton a bottle of Jack Daniels but he missed Officer Compton’s hand and the bottle

fell to the ground. The video from Officer Compton’s squad car was played in open court. It

showed defendant complying with Officer Compton’s request to exit the vehicle. As defendant

exited, he tripped and almost fell into moving traffic. Officer Compton had to stop him from

hitting the ground.

¶ 13    Officer Compton asked defendant to complete some field sobriety tests and read the

instructions for these tests from a book of standardized instructions. During the one-legged test,

defendant placed his foot down, fell off balance, and raised his hand up. These actions suggested

impairment. For the walk-and-turn-test, Officer Compton noted that defendant’s balance was

“horrible,” and that he did not seem to understand the directions or Officer Compton’s

demonstration. Officer Compton observed four or five clues of impairment, when only two are


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needed. Based on defendant’s performance of these tests, Officer Compton placed him into

custody for DUI and transported him to lockup.

¶ 14    Officer Compton testified that at the police station, he read defendant his Miranda

warnings, and after the required 20-minute observation period, defendant agreed to submit to a

breath test. After Officer Compton described the test procedures employed, the State offered

defendant’s breathalyzer ticket into evidence. Defendant objected arguing that Officer Compton

was not certified as a breath test operator on the day he administered the test so the result should

not be admitted. The State responded that actual certification was unnecessary where Officer

Compton understood the procedures to operate a breath machine and that the requisite

foundation to enter the breath ticket into evidence had been met. The circuit court overruled

defendant’s objection.

¶ 15    The authenticated breathalyzer ticket showed a test result of .260, which was over the

legal limit of .08. Officer Compton explained that the machine used to analyze defendant’s

breath was the Intoximeter EC/IR II. He stated that he administered tests on this machine about

100 times and did so according to industry standards. The machine is tested monthly for

accuracy and it will not allow a test to be performed if it is not operating properly. Officer

Compton testified to the training he received to operate the machine. The court did not allow

Compton’s most recent certification into evidence because Compton had already testified that he

“is certified.”

¶ 16    The State introduced two business record reports showing that the breathalyzer machine

Officer Compton used on defendant was certified on November 1, 2013, and again on December

1, 2013, and expert testimony that the breathalyzer machine used to test defendant on the night of

November 10, 2013, was accurate in its blood alcohol test result.


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1-17-1993

¶ 17   John Wetsetin, a toxicology coordinator for the Illinois state police, testified as an expert

in the field of forensic toxicology and opined that the primary function of the Intoximeter EC/IR

II is to measure ethanol or alcohol or ethyl alcohol in the breath coming out of an individual. It

does not measure acetone or ketones as a result of diabetes.

¶ 18   Defendant’s motion for a directed verdict was denied. The jury found defendant guilty of

driving with an alcohol concentration of .08 or more and guilty of driving under the influence of

alcohol. Defendant was found not guilty of improper lane usage. Defendant was sentenced to 12

months’ conditional discharge. This appeal followed.

¶ 19                                        ANALYSIS

¶ 20   In his brief filed in this court, defendant does not challenge the sufficiency of the State’s

evidence against him. His sole argument on appeal is that the State did not lay a proper

foundation for admission of the results of the breathalyzer test because the administrator of the

test was not licensed at the time the test was given and therefore the court’s ruling on the State’s

motion in limine was erroneous. We agree and find the court’s ruling on the State’s motion in

limine was in error.

¶ 21    Generally, the admission of evidence falls within the discretion of the trial court. People

v. Zwart, 151 Ill. 2d 37, 44 (1992). A trial court’s decision to grant a motion in limine will not be

reversed on appeal absent an abuse of discretion. However, where the issue on appeal is whether

the evidence was admitted on an erroneous legal basis, we review the question of admissibility

de novo. People v. Larsen, 323 Ill. App. 3d 1022, 1026 (2001). We also review de novo the

construction of statutes (People v. Elliot, 2014 IL 115308, ¶ 11), and the Illinois Administrative

Code (People v. Montalvo, 2016 IL App (2d) 140905, ¶ 18). When construing a statute or

administrative code provision, our “primary objective is to ascertain and give effect to the


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1-17-1993

legislature’s intent, keeping in mind that the best and most reliable indicator of that intent is the

statutory language itself, given its plain and ordinary meaning.” Elliott, 2014 IL 115308, ¶ 11.

“In determining the plain meaning of the statute, we consider both the subject the statute

addresses and the legislative purpose in enacting it.” Id.

¶ 22    The admissibility of breathalyzer test results is governed by standards promulgated by the

State Police as dictated by statute. Section 11-501.2(a) of the Illinois Vehicle Code (Code) states

in relevant part:

                (a) Upon the trial of any civil or criminal action or proceeding arising out of an

                arrest for an offense as defined in Section 11-501 or a similar local ordinance or

                proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol,

                other drug or drugs, or intoxicating compound or compounds, or any combination

                thereof in a person’s blood or breath at the time alleged, as determined by analysis

                of the person’s blood, urine, breath or other bodily substance, shall be admissible.

                Where such test is made the following provisions shall apply:

                       1. Chemical analyses of the person’s blood, urine, breath or other bodily

                       substance to be considered valid under the provisions of this Section shall

                       have been performed according to standards promulgated by the

                       Department of State Police by a licensed physician, registered nurse,

                       trained phlebotomist, certified paramedic, or other individual possessing a

                       valid permit issued by that Department for this purpose. The Director of

                       State Police is authorized to approve satisfactory techniques or methods,

                       to ascertain the qualifications and competence of individuals to conduct

                       such analyses, to issue permits which shall be subject to termination or


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                      revocation at the discretion of that Department and to certify the accuracy

                      of breath testing equipment. The Department of State Police shall

                      prescribe regulations as necessary to implement this Section.” 625 ILCS

                      5/11-501.2 (West 2013)).

¶ 23   Section 1286.00 of Title 20 of the Illinois Administrative Code states:

              “The Director or his/her designee is authorized to license persons to be BAOs

              [(Breath Alcohol Operators)] subject to the requirements of this Section. BAOs

              are licensed to perform all appropriate BAO functions described in this Part. Only

              licensed BAOs may operate evidential breath testing instruments.

                      a) To be eligible to be a BAO, the individual must be employed by an

                      agency or an accredited law enforcement training academy. BAO

                      candidates, including those who have previously been licensed as a BAO

                      in another state, must successfully attend the course and pass the written

                      and proficiency examination or successfully complete a computer-based

                      training (CBT) course.

                      b) Under the direction and control of a BAI [(Breath Alcohol Instructor)],

                      BAO candidates must:

                             1) Complete a training curriculum approved by the Department

                             that includes a minimum of 16 hours of instruction, which includes

                             the following:

                                     A) Presentation and discussion of the psychological,

                                     physiological, and pharmacological effects of alcohol in the

                                     human body;


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                                     B) Demonstration and discussion of instruments and the

                                     analytical processes used to measure BrAC [(Breath

                                     Alcohol Concentration)];

                                     C) Practical application and demonstration in the use of an

                                     evidentiary instrument; and

                                     D) Discussion of current DUI issues, the administrative

                                     rules, and case law.

                              2) Pass the following:

                                     A) The standardized written examination for Breath

                                     Analysis Operator provided by the Department with a

                                     minimum score of 70 percent.

                                     B) A proficiency examination in which the candidate

                                     operates approved evidentiary instruments.

                      c) A license shall be valid for a period of three years after the printed date

                      of issuance. If the license is not renewed as provided for in Section

                      1286.110, it shall expire three years after the printed date of issuance.” 20

                      Ill. Adm. Code § 1286.100 (eff. June 4, 2009).

¶ 24   When a motorist files a motion in limine to prevent the introduction of breath test results,

the State must establish a sufficient foundation for admission into evidence. People v. Ebert, 401

Ill. App. 3d 958, 960 (2010). The requirements for laying the proper foundation of breath test

results were outlined by our supreme court in People v. Orth, 124 Ill. 2d 326, 340 (1988). To lay

a proper foundation, the State must establish that the test was performed in accordance with both

section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11–501.2(a) (West 2010)) and the


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regulations promulgated by the Illinois Department of State Police. Id. The State must lay a

foundation establishing five factors: (1) evidence that the test was performed in accordance with

the uniform standard adopted by the Illinois Department of State Police; (2) evidence that the

operator conducting the test was certified by the Department of State Police; (3) evidence that

the breath test machine used was a model approved by the Department of State Police, was

working properly, and was tested regularly for accuracy; (4) evidence that defendant was

observed for 20 minutes prior to the test, and during that time, he did not smoke, drink or

regurgitate; and (5) evidence that the results on the “printout” sheet are properly identified as

defendant’s test results. Id. Failure to comply with section 11-501.2(a) and the regulations

renders the results of the test unreliable and, thus, inadmissible. People v. Emrich, 113 Ill. 2d

343, 350 (1986).

¶ 25   It is undisputed that Officer Compton was not licensed to conduct the breath test on

November 10, 2013. 20 Ill. Adm. Code §1286.100 (eff. June 4, 2009). Because the administrator

was not licensed at the time the test was administered, the breath test was not conducted in

conformity with the regulations promulgated by the Department of State Police. Id. (“[O]nly

licensed BAOs may operate evidential breath testing instruments.” Section 1286.00 of Title 20 of

the Illinois Administrative Code.)

¶ 26   The State argues that although Officer Compton was not licensed when he administered

the breath test, his license had only lapsed for five days, and there is no showing that the testing

process was in any other way improper and relies on People v. Keith, 148 Ill. 2d 32 (1992), to

support its argument. In Keith, the defendant moved in limine to suppress breath alcohol test

results in his prosecution for reckless homicide. The test administrator’s certification had expired

at the time he administered the breath test and he had since died. It was stipulated that the


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deceased officer’s supervisor reviewed the test results and that the deceased officer had his

administrator’s license renewed within two weeks after the subject test. The trial court

suppressed the breath test results because the administrator was deceased and because he was not

certified at the time of administration of the test, and we affirmed.

¶ 27   Before our supreme court, the State argued that the trial and appellate courts erred in

barring the breath test results into evidence on the reckless homicide charge. The State argued

that in a prosecution for reckless homicide, “section 11-501.2 of the Illinois Vehicle Code

(Ill.Rev.Stat.1987, ch. 95½, par. 11-501.2), which incorporates the Department’s standards

relating to breathalyzer instruments, does not apply as in a DUI prosecution.” Rather, the State

argued that admissibility of breath-alcohol tests in a prosecution for reckless homicide was

governed by the usual standards of evidentiary admissibility. Id. at 40.

¶ 28   The Keith court found that “section 11-501.2 standards apply only to actions or

proceedings arising out of arrest for an offense as defined in section 11-501. Reckless homicide

is not such an offense.” Id. at 41. A prosecution for reckless homicide does not arise out of an

offense defined in section 11-501, and “therefore Orth and the Department’s standards are not

applicable here.” Id. at 42. “We thus hold that the usual standards governing the admission of

evidence apply to breath-alcohol test results in prosecutions for reckless homicide.” Id. In

addressing the defendant’s contention that the only standard for admitting breath tests were the

Department’s standards, the Keith court explained that prior to the adoption of the Department’s

standards, breath-alcohol tests were admitted under the usual standards of admitting evidence. Id.

¶ 29   The Keith court discussed People v. Krueger, 99 Ill. App. 2d 431, 440-41 (1966), in

which a breath test was admitted in evidence where the officer who performed the test testified

that he had taken a training course, had a certificate as a certified breathalyzer officer, explained


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the operation of the machine, stated the results of the defendant’s test, and stated that the

machine was in working order. On appeal, the trial court’s decision to admit the breath test into

evidence was affirmed, as the trial was satisfied that the machine was properly calibrated and

maintained and that the officer had the proper knowledge to operate the machine and the officer

properly performed and observed the test. Id. at 441.

¶ 30     The Keith court then affirmed the holding of the trial and appellate courts, finding that

under the usual standards governing the admissibility of evidence, the results of the breath test

were inadmissible because there was no evidence that the test was reliable. Keith, 148 Ill. 2d at

44-45.

¶ 31     The State urges this court to find that Keith stands for the proposition that where a proper

foundation for a breath test cannot be laid under the requirements set forth in Orth and the

Department’s standards, then the breath-test can be alternatively admissible under the usual

standards governing the admissibility of evidence. We decline to do so. Keith is very clear that

the Orth requirements and the Department’s standards are the foundational standards applicable

to the admission of breath test results in prosecutions for those offenses enumerated in section

11-501 (625 ILCS 5/11-501 (West 2014)).

¶ 32     As stated, defendant was charged with offenses listed in section 11-501. The Keith court

only considered the admissibility of the breath-test under ordinary admissibility standards

because the Orth requirements and the Department standards did not apply in reckless homicide

prosecutions. The Keith court’s rejection of Keith’s argument that the Department’s standards

were the only applicable standards for admitting breath tests, and its subsequent discussion of the

admissibility of breath-test results prior to the Department’s adoption of its standards in 1970,

does not in any way demonstrate the court’s intention to allow an alternative means of admitting


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1-17-1993

breath-tests in the prosecution of offenses described in section 11-501. Rather, the Keith court’s

discussion of this subject explained that in the absence of a specific, identified admissibility

standard for a breath-test in a prosecution for an offense not identified in section 11-501, a

general analysis of the procedures used, the knowledge of the person performing the test and the

reliability of the test were factors to be considered in determining the test’s admissibility. Id. See

also People v. Hamlton, 118 Ill. 2d 153 (1987); People v. Emrich, 113 Ill. 2d 343 (1986).

¶ 33   We also find the State’s reliance on People v. Ebert, 401 Ill. App. 3d 958 (2010) and

People v. Bishop, 354 Ill. App. 3d 549 (2004), to be misplaced. Ebert involved a defendant’s

challenge to the admissibility of a breath test where the administrator failed to comply with the

regulations requiring him to continuously observe the defendant for at least 20 minutes before

administering a breath test because the officer did not accompany the defendant to the bathroom

during that time period. The Ebert court remarked:

               “The act of observing a motorist for 20 minutes obviously has no direct effect on

               the result of a breath test administered at the end of that period. The purpose of

               the observation requirement is to document that the motorist does nothing that

               might impair the accuracy of the breath test. Although [the officer] might not have

               been watching defendant while defendant was using the bathroom, defendant’s

               own testimony establishes that he did nothing to impair the accuracy of the test-he

               did not vomit, belch, regurgitate, or place a foreign substance in his mouth. Thus,

               the breath test result was no less reliable than it would have been if [the officer]

               had observed defendant not doing those things. Given defendant’s testimony,

               rigid enforcement of the observation requirement would serve no purpose and




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1-17-1993

               would frustrate the truth-seeking function by excluding reliable evidence.” Id. at

               965.

The Ebert court dismissed the defendant’s argument, finding that any failure to strictly comply

with the observation requirement was de minimis. Id.

¶ 34   In Bishop, 354 Ill. App. 3d at 551, the defendant was convicted of DUI following an

automobile accident. On appeal, he argued that the State failed to collect a sample of his urine in

compliance with section 1286.330(d) of title 20 of the Administrative Code, which required that

the “ ‘urine sample shall be collected from the subject’s first emptying of the bladder in a clean,

dry container.’ ” Id. at 555 (quoting 20 Ill. Adm. Code 1286.330(d) (2002)). According to the

defendant, the hospital drew the first urine sample and the second sample, drawn by police, was

taken hours later. Therefore, the second urine sample did not strictly conform with section

1286.330(d). Id.

¶ 35   This court rejected the defendant’s argument. We found that that substantial compliance

with section 1286.330(d) of title 20 of the Administrative Code was sufficient and that

substantial compliance had been satisfied. Id. at 556. We noted that it was the hospital’s

procedure that prevented the State from taking a sample from the first emptying of the bladder.

Id. We further noted that, “if we were to agree that any deviation whatsoever from the

regulations rendered the results of a sample inadmissible, ‘we would be ignoring the fact that

strict compliance is not always realistically or humanly possible.’ ” Id. (quoting State v.

Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 34).

¶ 36   Both Ebert and Bishop involve challenges to tests that deviated slightly from the

standards prescribed for administration of the test. These de minimis deviations did not affect the

validity or reliability of the results. Substantial compliance was sufficient in those cases where a


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1-17-1993

defendant was not continuously observed for the required 20-minute period because the

defendant testified that he did nothing that, if he was observed, would have affected the test and

where the State collected a second urine sample because the first sample was taken at the

hospital following defendant’s automobile accident. In Ebert and Bishop there was no challenge

to the admissibility of the tests on the basis that the officers administering these tests were not

licensed by the State. That is not the case here.

¶ 37   Unlike Ebert and Bishop, in this case we cannot find there was substantial compliance

where the officer was not licensed at the time he administered the breath test: there simply was

no compliance, as required by the statute and the Department’s standards. Officer Compton’s

testimony regarding his training and the steps he took in performing the breath test was not

sufficient to overcome the statutory requirement that Officer Compton be licensed to perform the

test at the time the test was administered. Because Officer Compton was not a licensed breath

analysis operator at the time he administered the defendant’s test, the State failed to lay the

required foundation for the admission of the breath test results in a section 501(a)(1) prosecution

and it was reversible error to admit the results into evidence.

¶ 38   The plain language contained in the Department standards and the finding in Orth

specifically requires that, to be admissible in evidence, the breath tests shall be “performed” by a

licensed administrator according to the standards. The test was not performed according to the

required standards in this case, and the failure to strictly comply was not de minimis.

Accordingly, defendant’s motion in limine should have been granted and the breath test results

should not have been admitted. Because the results of the breath test lacked a proper foundation

and should not have been admitted as substantive evidence, we reverse defendant’s conviction

under section 11-501(a)(1). To prove defendant guilty beyond a reasonable doubt, the State must


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1-17-1993

prove defendant (1) was in “actual physical control” of the vehicle and (2) the concentration of

alcohol in his blood or breath was more than .08 based upon the definition set forth in section 11-

501.2 of the Code. 625 ILCS 5/11-501(a)(1) (West 2012). Because the State cannot prove a

foundational element necessary for the admission of the breath test results, that the test was

administered by a licensed operator, the State cannot prove defendant’s blood or breath alcohol

concentration while he was driving. The foundational defect we have found cannot be cured on

retrial. We therefore reverse defendant’s conviction for driving with an alcohol concentration of

.08 or more (625 ILCS 5/11-501(a)(1) (West 2012)).

¶ 39   At oral argument, defendant requested that we remand for a new trial the driving under

the influence charge (625 ILCS 5/11-501(a)(2) (West 2012)) because the admission of the breath

test result infected and prejudiced defendant’s trial on this charge. As we previously noted,

defendant did not challenge his conviction for DUI in his notice of appeal, or make any argument

in his appellate brief that the State failed to prove him guilty of DUI beyond a reasonable doubt.

Defendant has therefore forfeited this argument. People v. Enoch, 122 Ill. 2d 176, 186 (1988).

¶ 40   Forfeiture aside, we find that there was overwhelming evidence from which the jury

could conclude beyond a reasonable doubt that defendant was under the influence of alcohol

while in physical control of the vehicle even without the admission of the breath test evidence.

Infra. ¶¶ 11-13. We find no possibility that admission of the breath test results prejudicially

influenced the jury’s determination on this charge. Defendant’s conviction for DUI (625 ILCS

5/11-501(a)(2) (West 2012)) is therefore affirmed.

¶ 41                                     CONCLUSION

¶ 42   For the foregoing reasons, we affirm in part and reverse in part.

¶ 43   Affirmed in part; reversed in part.


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