                                   Illinois Official Reports

                                           Appellate Court



                             People v. Chiaravalle, 2014 IL App (4th) 140445



Appellate Court               THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                       RYAN J. CHIARAVALLE, Defendant-Appellee.


District & No.                Fourth District
                              Docket No. 4-14-0445


Filed                         December 19, 2014


Held                          In a prosecution for driving under the influence of alcohol, the trial
(Note: This syllabus          court erred in granting defendant’s motion in limine to exclude the
constitutes no part of the    results of his breath-analysis test on the ground that the arresting
opinion of the court but      officer failed to substantially comply with the 20-minute observation
has been prepared by the      period before the test was administered when the evidence showed
Reporter of Decisions         that the officer was in the same room with defendant during the period,
for the convenience of        but he did paperwork with his back toward defendant for minutes at a
the reader.)                  time, and the officer stated that he turned around “every once in a
                              while,” since the officer had searched defendant before he was taken
                              to the jail for the test and did not find any alcohol or mouthwash, the
                              officer and defendant were alone during the observation period,
                              defendant was told not to do anything to bring alcohol to his mouth
                              and the officer did not see any evidence of vomiting or regurgitation,
                              and under the circumstances, the officer’s observation of defendant
                              through the full use of his senses did not make the breath test
                              unreliable and any failure to strictly comply with the observation
                              requirement was de minimis, as in Ebert.



Decision Under                Appeal from the Circuit Court of Livingston County, No. 14-DT-06;
Review                        the Hon. Jennifer H. Bauknecht, Judge, presiding.


Judgment                      Reversed; cause remanded for further proceedings.
     Counsel on               Seth Uphoff, State’s Attorney, of Pontiac (Patrick Delfino, David J.
     Appeal                   Robinson, and Linda Susan McClain, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.

                              W. Keith Davis, of Law Office of W. Keith Davis, of Bloomington,
                              for appellee.



     Panel                    JUSTICE TURNER delivered the judgment of the court, with opinion.
                              Justices Harris and Steigmann concurred in the judgment and opinion.


                                               OPINION

¶1         In January 2014, defendant, Ryan J. Chiaravalle, was charged by traffic citations with
       driving under the influence of alcohol (DUI) and driving with a blood-alcohol content of 0.08
       or more. In May 2014, the trial court granted defendant’s motion in limine regarding the results
       of a Breathalyzer test, and the State filed a certificate of substantial impairment.
¶2         On appeal, the State argues the trial court erred in granting defendant’s motion in limine to
       bar the results of the breath-analysis test. We reverse and remand for further proceedings.

¶3                                         I. BACKGROUND
¶4         In January 2014, defendant was charged by traffic citations with DUI (625 ILCS
       5/11-501(a)(2) (West 2012)) and driving with a blood-alcohol content of 0.08 or more (625
       ILCS 5/11-501(a)(1) (West 2012)). In February 2014, defendant entered a plea of not guilty.
¶5         Also in February 2014, the Illinois Secretary of State issued a suspension of defendant’s
       driver’s license. Defendant filed a request for a hearing and a petition to rescind the statutory
       summary suspension. In part, defendant argued the arresting officer failed to properly
       administer the breath test.
¶6         In March 2014, Judge Mark Fellheimer conducted a hearing on the petition to rescind the
       statutory summary suspension. Pontiac police corporal Brad Baird testified he stopped
       defendant’s vehicle during the early morning hours of January 19, 2014, because its headlights
       were not on. While asking defendant for his license and insurance card, Baird detected an odor
       of an alcoholic beverage coming from defendant’s breath. He also stated defendant’s speech
       “seemed somewhat slow” and “his eyes were bloodshot and glassy.” Due to the cold weather,
       defendant agreed to be transported to a fire station to undergo field-sobriety testing. After the
       tests, Baird arrested defendant for DUI. After reading the statutory warning to motorists,
       defendant agreed to submit to breath testing.
¶7         Baird conducted the breath test at the Livingston County jail. He described the room as
       having a bench on one side and a countertop on the other. There is also “a separate kind of a
       room that’s divided by a wall that covers three-quarters across the room; and then the breath
       test machine is actually inside that smaller room.” Baird stated he was alone with defendant
       during the entire observation period. Baird told defendant he “could not do anything which

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       might bring alcohol to his mouth, which would be belching or vomiting or anything like that.”
       Baird stated he completed his citations and paperwork while defendant sat on the bench behind
       him. Baird did not recall the amount of time it took to complete the paperwork but stated it
       “usually takes 10 minutes.” During the 20-minute observation period, Baird turned around
       “every once in awhile,” meaning “every few minutes probably.” Baird did not hear any
       unusual noises coming from behind him and did not see any evidence of vomiting or
       regurgitation. After he finished his paperwork, Baird had a conversation with defendant. He
       did not recall defendant coughing and would not have conducted the test had he done so.
¶8         At the conclusion of the observation period, Baird typed information into the Breathalyzer
       machine and placed a new mouthpiece into the machine. Defendant then provided a breath
       sample. The machine indicated a sufficient air sample had been reached.
¶9         In making its ruling, the trial court stated, in part, as follows:
                “I just have an officer that did not comply with the twenty-minute observation. He had
                his back to him for minutes at a time. And, as I said before, when it was just bringing
                this topic up when we finished the hearing, I would be extending that twenty-minute
                observation period, the line of sight cases that I have been dealt with to a new arena that
                would simply say that the officer didn’t hear the person do anything, which is then
                eating up the entire rule, first and foremost, which would not be the purpose here of
                what we are doing.
                    So, based on that, I will find that foundation for the test was not met, that the
                observation period failed under any set of circumstances. And, therefore, I will grant
                the petition to rescind the statutory summary suspension.”
       The court later denied the State’s motion to reconsider.
¶ 10       In May 2014, defendant filed a motion in limine regarding the Breathalyzer test
       administered to him following his arrest. Defendant argued the lack of substantial compliance
       during the 20-minute observation period rendered the test result inadmissible as evidence in his
       criminal trial.
¶ 11       At a hearing on the motion in limine before Judge Jennifer Bauknecht, the State’s evidence
       included the transcripts of the summary-suspension hearing before Judge Fellheimer. Judge
       Bauknecht adopted the reasoning of Judge Fellheimer, stating there had been no substantial
       compliance with the 20-minute observation period. Accordingly, the trial court granted
       defendant’s motion in limine. Thereafter, the State filed a certificate of substantial impairment.
       See Ill. S. Ct. R. 604(a)(1) (eff. Feb. 6, 2013). This appeal followed.

¶ 12                                          II. ANALYSIS
¶ 13       On appeal, the State argues the trial court erred in granting defendant’s motion in limine to
       bar the breath-analysis test, claiming the officer substantially complied with the 20-minute
       observation period through the use of all of his senses. We agree.

¶ 14                                      A. Standard of Review
¶ 15       “In general, a trial court’s decision to grant a motion in limine will not be disturbed on
       review absent an abuse of discretion.” People v. Clairmont, 2011 IL App (2d) 100924, ¶ 11,
       961 N.E.2d 914. However, in this case, the State’s argument centers on whether the trial court
       properly excluded the evidence of the breath-test results based on the applicable administrative

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       regulations and case law. Thus, as the facts are not in dispute and a question of law is involved,
       our review is de novo. Clairmont, 2011 IL App (2d) 100924, ¶ 11, 961 N.E.2d 914; see also
       People v. Ebert, 401 Ill. App. 3d 958, 960-61, 931 N.E.2d 279, 280-81 (2010) (stating the
       question of whether the State laid a sufficient foundation for the admission of breath-test
       results by substantially, but not strictly, complying with administrative regulations was a
       question of law subject to de novo review).

¶ 16                                       B. Breath-Alcohol Tests
¶ 17       “When a motorist files a motion in limine to bar breath test results, the State must establish
       a sufficient foundation for the admission of the evidence.” Clairmont, 2011 IL App (2d)
       100924, ¶ 12, 961 N.E.2d 914 (citing Ebert, 401 Ill. App. 3d at 960, 931 N.E.2d at 280). To lay
       a proper foundation, the State must establish the breath test was performed in accordance with
       section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a) (West 2012)) and
       regulations promulgated by the Illinois Department of State Police. Clairmont, 2011 IL App
       (2d) 100924, ¶ 12, 961 N.E.2d 914. “Failure to comply with section 11-501.2(a) and the
       regulations renders the results of the test unreliable and, thus, inadmissible.” Clairmont, 2011
       IL App (2d) 100924, ¶ 12, 961 N.E.2d 914.
¶ 18       Section 1286.310(a) of Title 20 of the Illinois Administrative Code (20 Ill. Adm. Code
       1286.310(a) (2004)) sets forth the procedures to obtain a breath sample in determining a
       subject’s breath-alcohol content, as follows:
                    “(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 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, alternate testing shall be considered.”
¶ 19       In regard to the 20-minute observation period, Illinois courts have found substantial rather
       than strict compliance is necessary to meet the requirement. Ebert, 401 Ill. App. 3d at 963, 931
       N.E.2d at 283 (stating for a proper foundation, “it is necessary to establish only that the test
       was performed in substantial compliance with the Department’s standards”); see also People v.
       Bergman, 253 Ill. App. 3d 369, 373, 623 N.E.2d 1052, 1055 (1993) (stating that “with respect
       to the 20-minute observation period, only substantial and not strict compliance is required”);
       In re Summary Suspension of Driver’s License of Ramos, 155 Ill. App. 3d 374, 376-77, 508
       N.E.2d 484, 486 (1987).
¶ 20       In Ramos, 155 Ill. App. 3d at 375, 508 N.E.2d at 485, the trooper observed the defendant
       for 20 minutes before having to spend 6 minutes “resetting the machine to accept a breath
       sample.” During that time, his attention was primarily on the machine and not the defendant,
       although he was within the trooper’s peripheral vision. Ramos, 155 Ill. App. 3d at 375, 508
       N.E.2d at 485. While the trooper did not stare at the defendant while resetting the machine, he
       did have occasion to see the defendant during that time as he was seated five to seven feet away
       and did not leave the room. Ramos, 155 Ill. App. 3d at 375, 508 N.E.2d at 485.


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¶ 21       This court found no substantial error that would require the results to be stricken. Ramos,
       155 Ill. App. 3d at 376, 508 N.E.2d at 486. The court stated the six minutes the trooper spent
       resetting the machine rather than staring at the defendant did “not indicate a serious failure to
       comply with the required standards and procedures.” Ramos, 155 Ill. App. 3d at 376, 508
       N.E.2d at 486. In finding substantial compliance, the court also noted the defendant had been
       “observed periodically as the trooper moved about the machine and was constantly within the
       peripheral vision of the trooper.” Ramos, 155 Ill. App. 3d at 376-77, 508 N.E.2d at 486.
¶ 22       In Bergman, 253 Ill. App. 3d at 370-71, 623 N.E.2d at 1053, the trooper left the room
       during the 20-minute observation period, “for no more than one minute,” to pick up
       paperwork. The trooper “admitted that during the 20-minute period he did do some paperwork
       and moved around the room, but [the defendant] remained in his line of sight at all times.”
       Bergman, 253 Ill. App. 3d at 371, 623 N.E.2d at 1054.
¶ 23       The defendant’s wife testified she spoke with the trooper in the waiting room and he could
       not see the defendant from where he was standing. Bergman, 253 Ill. App. 3d at 371, 623
       N.E.2d at 1054. The defendant testified the trooper left the room for a minute or two to retrieve
       paperwork and for a couple of minutes to talk to the defendant’s wife. Bergman, 253 Ill. App.
       3d at 371, 623 N.E.2d at 1054. The defendant also testified he put some Certs breath mints in
       his mouth prior to taking the breath test. Bergman, 253 Ill. App. 3d at 371, 623 N.E.2d at 1054.
¶ 24       After noting the credibility of the witnesses was at issue, the trial court found the trooper
       maintained the 20-minute observation period by keeping the defendant within his peripheral
       vision and hearing. Bergman, 253 Ill. App. 3d at 373, 623 N.E.2d at 1055. The Fifth District
       agreed, finding the trooper “substantially complied with the observation rule by keeping [the
       defendant] in his line of sight and peripheral vision continuously for 20 minutes, and this is at
       least sufficient to prove that [the defendant] did not regurgitate, vomit, smoke, or drink
       anything and did not ingest anything other than the Certs breath mints during the 20-minute
       observation period.” Bergman, 253 Ill. App. 3d at 374-75, 623 N.E.2d at 1056.
¶ 25       In Ebert, 401 Ill. App. 3d at 960, 931 N.E.2d at 280, the defendant sought to exclude the
       breath-test results because the officer failed to accompany him to the restroom during the
       20-minute observation period. The defendant testified he did not vomit, belch, regurgitate, or
       place a foreign substance in his mouth. Ebert, 401 Ill. App. 3d at 960, 931 N.E.2d at 280. The
       State argued defendant’s testimony showed the test results were reliable. Ebert, 401 Ill. App.
       3d at 961, 931 N.E.2d at 281.
¶ 26       The Second District found any failure to strictly comply with the 20-minute observation
       requirement was de minimis. Ebert, 401 Ill. App. 3d at 965, 931 N.E.2d at 284.
               “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 would frustrate the


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                truth-seeking function by excluding reliable evidence.” Ebert, 401 Ill. App. 3d at 965,
                931 N.E.2d at 284.
¶ 27       In ruling on the petition to rescind, Judge Fellheimer found Corporal Baird did not
       substantially comply with the 20-minute requirement, stating that to find an adequate
       foundation in this instance would extend the “line of sight cases” to “a new arena that would
       simply say that the officer didn’t hear the person do anything.” Judge Bauknecht adopted
       Judge Fellheimer’s reasoning in ruling on the motion in limine.
¶ 28       The evidence in this case indicates Baird did not always have defendant in his “line of
       sight” or “peripheral vision,” as he had his back to him at times. Thus, the question becomes
       whether the requirement that the officer “continuously observe the subject” requires
       continuous visual observation. The State argues an officer may “observe” a subject by using all
       of his senses, not just his sense of sight. Based on the facts presented and the case law, we find
       this is a matter of first impression here in Illinois.
                    “Administrative regulations have the force and effect of law and are construed
                according to the same standards that govern the construction of statutes. [Citation.] The
                fundamental rule of statutory construction is to ascertain and give effect to the
                legislature’s intent. [Citation.] The best indication of legislative intent is the statutory
                language, given its plain and ordinary meaning. [Citation.] Where the language is clear
                and unambiguous, we must apply the statute without resort to further aids of statutory
                construction.” People v. Bonutti, 212 Ill. 2d 182, 188, 817 N.E.2d 489, 493 (2004).
¶ 29       Because section 1286.310(a) does not specifically define “observe” or “observation,” the
       words must be given their plain and ordinary meaning. “Observation” has been defined as “the
       act of noticing or perceiving” and “the act of regarding attentively or watching.” The American
       College Dictionary 836 (1966). “Observe” means “to see or sense esp. through directed,
       careful, analytic attention.” Webster’s Third New International Dictionary 1558 (2002); see
       also      The     American       Heritage      Dictionary     of     the     English      Language,
       http://www.yourdictionary.com/observe#americanheritage (last visited Dec. 3, 2014) (noting
       “observe” means “[t]o be or become aware of, especially through careful and directed
       attention; notice”).
¶ 30       By using the word “observe,” and not “keep in line of sight” or “watch,” the Department of
       State Police required the officer to use all of his senses and not merely his sense of sight. The
       same can be said about the use of the word “observation,” given the lack of a requirement that
       it be a “visual” observation period. Our supreme court has stated “the purpose of section
       1286.310(a) is to ensure that only accurate breath-alcohol tests are admitted into evidence
       against a criminal defendant.” Bonutti, 212 Ill. 2d at 190, 817 N.E.2d at 494. The purpose of
       observing the defendant is to ensure that he does not do anything to compromise the breath test
       by ingesting alcohol or foreign substances or by vomiting. These activities do not require
       continuous visual observation to determine if they have occurred.
¶ 31       Case law from other states supports the conclusion that observation in similar
       circumstances can include more than just the sense of sight. See State v. Mashek, 312 P.3d 774,
       781 (Wash. Ct. App. 2013) (“an individual can ‘observe’ by seeing or other sensing”
       (emphasis in original)); Bennett v. State of Idaho, Department of Transportation, 206 P.3d
       505, 508 (Idaho Ct. App. 2009) (stating “ ‘observation’ can include not only visual observation
       but use of other senses as well”); State v. Filson, 976 A.2d 460, 467 (N.J. Super. Ct. Law Div.


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       2009) (stating “a person may observe a subject by listening, smelling, or feeling, instead of
       seeing”).
¶ 32       Moreover, courts have not required unbroken eye contact by the officer of the defendant.
       See State v. Scheffert, 778 N.W.2d 733, 741 (Neb. 2010) (stating the act of observing “does not
       require a police officer to stare fixedly at the person being tested”); Peterson v. Wyoming
       Department of Transportation, Drivers’ License Division, 2007 WY 90, ¶ 15, 158 P.3d 706
       (Wyo. 2007) (stating “[c]ompliance with observation rules does not require an officer to fix his
       stare on the subject”); Manriquez v. Gourley, 130 Cal. Rptr. 2d 209, 216 (Cal. Ct. App. 2003)
       (stating “uninterrupted eye contact is not necessary (and may not always be sufficient by itself)
       to determine whether the proscribed events have occurred”); Goode v. State, 798 S.W.2d 430,
       433 (Ark. 1990) (stating an “officer is not required to stare fixedly at the arrested person for the
       entire time in order to comply with the 20-minute regulation”); State v. Smith, 547 A.2d 69, 73
       (Conn. App. Ct. 1988) (stating the “continuous observation” requirement did not “require that
       an officer fix his unswerving gaze upon a subject during each fifteen minute interval prior to
       administration of a breath test”); People v. McDonough, 518 N.Y.S.2d 524, 526 (N.Y. App.
       Div. 1987) (stating “[a] constant vigil is not required”); Glasmann v. State of Colorado,
       Department of Revenue, Motor Vehicle Division, 719 P.2d 1096, 1097 (Colo. App. 1986)
       (stating the officer need not “stare fixedly at a test subject for twenty minutes”).
¶ 33       Interpreting the phrase “continuously observe” “to require exclusively unbroken visual
       observation is contrary to its ordinary meaning.” Mashek, 312 P.3d at 781. Moreover, “[s]uch
       an interpretation would not only be practically impossible to perform but would allow a subject
       to thwart compliance with the regulation simply by turning his head away.” Smith, 547 A.2d at
       73.
¶ 34       While an officer can use more than just his sense of sight when observing a defendant, he
       must still be in close enough proximity to use his other senses to detect whether the defendant
       has ingested a foreign substance or vomited.
                “An officer’s observation should be of the sort capable of detecting contamination if it
                actually occurred. Thus, an officer who looks away must be close enough to detect
                contamination through aural or olfactory senses.” Filson, 976 A.2d at 469.
       See also Scheffert, 778 N.W.2d at 741 (stating an officer must “be in a position to detect,
       through the use of one or more senses, any conduct or event which could contaminate the
       breath sample and taint the results”); Bennett, 206 P.3d at 508 (stating “[s]o long as the officer
       is continually in position to use his senses, not just sight, to determine that the defendant did
       not belch, burp or vomit during the observation period, the observation complies with the
       training manual instructions”); Manriquez, 130 Cal. Rptr. 2d at 216 (stating uninterrupted eye
       contact is not necessary, “so long as the officer remains present with the subject and able by the
       use of all his or her senses to make that determination”).
¶ 35       Here, Corporal Baird searched defendant prior to bringing him to the jail and found nothing
       of interest, like a bottle of alcohol or mouthwash, on his person. Baird and defendant were
       alone in the room during the observation period. Baird told defendant that he could not do
       anything that might bring alcohol to his mouth, such as by belching or vomiting. Baird then
       proceeded to fill out paperwork. With defendant seated behind him, Baird turned around
       “every once in awhile” or “every few minutes” to check on him. Baird did not hear any unusual
       noises coming from behind him and did not see any evidence of vomiting or regurgitation.


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       After using approximately 10 minutes to complete paperwork, Baird spent the rest of the
       observation period conversing with defendant.
¶ 36       The evidence in this case indicates Corporal Baird substantially complied with the
       20-minute observation requirement. Baird was alone in the same room with defendant,
       periodically turned around to check on him, and did not hear any sounds that might indicate
       defendant had vomited, belched, regurgitated, or placed a foreign substance in his mouth. No
       evidence indicates defendant did so. The fact that Baird had his back to defendant while
       maintaining observation through the full use of his senses did not make the breath test
       unreliable. Moreover, as in Ebert, any failure to strictly comply with the observation
       requirement was de minimis. Accordingly, we find the trial court erred in granting defendant’s
       motion in limine.

¶ 37                                   III. CONCLUSION
¶ 38      For the reasons stated, we reverse the trial court’s judgment and remand for further
       proceedings.

¶ 39      Reversed; cause remanded for further proceedings.




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