                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Olson, 2013 IL App (2d) 121308




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



District & No.             Second District
                           Docket No. 2-12-1308


Filed                      June 28, 2013


Held                       In a prosecution for driving while under the influence of alcohol, the
(Note: This syllabus       appellate court vacated the grant of defendant’s motion in limine pursuant
constitutes no part of     to Clairmont to bar the admission of the results of defendant’s breath test
the opinion of the court   on the ground that the testing machine was not certified for 63 days,
but has been prepared      despite the requirement of the Illinois Administrative Code that it be
by the Reporter of         certified every 62 days, since the State was entitled to rebut the
Decisions for the          presumption that the test results would be inadmissible if the machine
convenience of the         was not certified every 62 days by presenting evidence of substantial
reader.)
                           compliance, and the cause was remanded to allow the State to make such
                           a presentation at an evidentiary hearing.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 10-DT-2090; the
Review                     Hon. Brian J. Diamond, Judge, presiding.



Judgment                   Vacated and remanded.
Counsel on                   Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and
Appeal                       Thomas Minser, Assistant State’s Attorneys, of counsel), for the People.

                             Raymond G. Garza, of Olympia Fields, for appellee.


Panel                        JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                             Justices Hutchinson and Hudson concurred in the judgment and opinion.




                                               OPINION
¶1          Defendant, John J. Olson, was charged with two counts of driving while under the
        influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)), and he was
        ticketed for improper lane usage (625 ILCS 5/11-709 (West 2010)). Before trial, he filed a
        motion in limine, asking the court to bar admission of the results of a breath test he took.
        Defendant contended that the results should be barred because section 1286.230 of title 20
        of the Illinois Administrative Code (Code) (20 Ill. Adm. Code 1286.230, amended at 33 Ill.
        Reg. 8529 (eff. June 4, 2009)) mandates that breath-testing machines be certified every 62
        days, the machine used in his case was not certified for 63 days, and he submitted to testing
        during this 63-day period. Relying on this court’s decision in People v. Clairmont, 2011 IL
        App (2d) 100924, the trial court granted the motion. The State timely appealed and filed a
        certificate of impairment. At issue in this appeal is whether, under the facts presented here,
        Clairmont mandated that the trial court grant defendant’s motion in limine. For the reasons
        that follow, we find that it did not. Thus, we vacate and remand.
¶2          The facts relevant to resolving this appeal are as follows. On May 29, 2010, Officer Poli
        stopped defendant for DUI and improper lane usage. Defendant was taken to the police
        department, where he submitted to a breath test. The test indicated that defendant was under
        the influence of alcohol.
¶3          The machine used to test defendant underwent a “Certification Check” on May 9, 2010.1
        The next time a “Certification Check” was conducted on the machine was July 11, 2010, 63
        days later.
¶4          Based on these facts, defendant filed a motion in limine, claiming that the court should

                1
                  Information about the “Certification Check” and the test defendant took, as well as
        defendant’s motion in limine, are not contained in the record on appeal. However, those documents
        are attached to defendant’s brief. Although this court generally does not consider documents that are
        attached to a party’s brief when those same documents are not also included in the record on appeal
        (see Franciscan Communities, Inc. v. Hamer, 2012 IL App (2d) 110431, ¶ 32), we choose to
        overlook that rule here, as the State does not object to our considering those documents, and they
        were indeed filed and before the trial court.

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     bar admission of the results of his breath test. At the hearing on the motion, which occurred
     on the eve of trial, the parties discussed with the court whether resolution of defendant’s
     motion was controlled by Clairmont. During that discussion, the following exchange was
     had:
              “[Assistant State’s Attorney]: I believe it actually is a case of first impression onto
         the–in Clairmont the State waived their argument of substantial compliance.
              The Court noted, specifically at the end of the case, that the State could have made
         that argument. They chose not to. And this–Clairmont was actually a case on statutory
         interpretation of the administrative rule where the Court found that the State did not
         properly read that rule. And they found, in fact, that there was a requirement to have
         certification on every 62 days.
              So the State will be making a substantial compliance argument that we believe is
         consistent with Clairmont and [People v.] Bishop[, 354 Ill. App. 3d 549 (2004)].
              [Defense counsel]: A brief response?
              THE COURT: That won’t be necessary, counsel.
              [Defense counsel]: All right.
              THE COURT: The State’s [sic] motion in limine will be granted.
              The Court is going to follow the Clairmont–I don’t–I don’t agree if the State’s–there
         may be some mention in there of that, but I think at this juncture I have to follow the
         Second District’s ruling in that Clairmont case. And I find that that–my interpretation of
         that is that this breath result should be barred under that case law. So I’m going to grant
         the motion on that.”
¶5       That same day, as the parties were preparing to start defendant’s jury trial, the State, in
     essence, orally moved the court to reconsider its order granting defendant’s motion in
     limine.2 In discussing the motion, the parties advised the court that they agreed that “the post
     cert[ification] occurred on day 63.” Nevertheless, the State claimed that, even though strict
     compliance with section 1286.230 was not had, that did not mean that the test results were
     rendered inadmissible. Rather, the State contended that, pursuant to Clairmont, if there is no
     certification within 62 days, there is a presumption that the test results are unreliable, and the
     State may rebut that presumption by establishing substantial compliance.
¶6       The court denied the State’s motion. Specifically, the court stated:
              “All right. Well, I’m going to stand on my ruling.
              I’ve read the Clairmont case. It’s my impression that the [Appellate] Court is
         intending that that be a mandatory provision. And, frankly, making a bright line makes
         it a lot easier for trial courts to decide that issue. And I don’t know how you go from
         inaccuracy to accuracy.

             2
              The State actually moved the court for a continuance so that it could file a written motion
     to reconsider. The court and the parties began discussing the substance of that motion, and, after
     hearing that, the court essentially ruled on what it considered to be the State’s oral motion to
     reconsider.

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               It clearly depicted a number of days and that’s the day that’s (unintelligible). I’ve read
           the language from Clairmont which seems to indicate that it is to be read as it’s–as it
           reads.”
¶7         After denying the motion to reconsider, the trial court allowed the State to make an offer
       of proof to support its claim that there was substantial compliance with section 1286.230,
       because, in the trial court’s view, such facts could “enlighten[ ] the Second District.”
       Pursuant to that proffer, the State indicated that Officer Rodriguez would testify that, on July
       9, 2011, which was the sixty-first day following the May 9, 2011, certification, he attempted
       to do a certification check on the breath-testing machine that was used in defendant’s case.
       Officer Rodriguez was unable to do the certification check because the power source on the
       machine needed to be replaced, meaning that, because of the faulty power source, “the
       machine literally died.” The replacement part was brought to the police department on the
       sixty-third day and the breath-testing machine was immediately fixed. The State further
       indicated that Officer Rodriguez would testify that the reliability of the breath test that
       defendant took on May 29, 2010, was in no way affected by the problem with the power
       source. Moreover, the State asserted that Officer Bishop, who administered the breath test,
       would testify that all of the other requirements for administering a breath test were met and
       that defendant’s breath test was administered accurately on May 29, 2010.
¶8         At issue in this appeal is whether, under Clairmont and the facts presented here, the trial
       court was required to grant defendant’s motion in limine. Before considering that issue, we
       must address defendant’s contention that the State’s motion to reconsider was improper
       because “the *** motion to reconsider contained argument as to whether the State
       substantially complied with [the Code], and a proffer of testimony in that regard.” The
       “purpose of a motion to reconsider is to bring to the court’s attention newly discovered
       evidence, changes in the law, or errors in the court’s previous application of existing law.”
       (Emphases added.) Farmers Automobile Insurance Ass’n v. Universal Underwriters
       Insurance Co., 348 Ill. App. 3d 418, 422 (2004). Here, the State advised the court that it was
       moving to reconsider because, in the State’s view, the court had misapplied Clairmont. This
       was a proper purpose for a motion to reconsider. As to defendant’s claim that the motion was
       improper because the State was allowed to present evidence of substantial compliance, the
       record shows that the State presented that evidence only after the court denied its motion to
       reconsider, and the State did so, at the court’s request, only because the court believed that
       such evidence could aid this court in resolving this appeal. Based on these circumstances, we
       find nothing improper with the State’s motion to reconsider.
¶9         We now turn to the merits of this appeal. “A party may file a motion in limine to obtain
       an order before trial excluding inadmissible evidence.” People v. Ebert, 401 Ill. App. 3d 958,
       960 (2010). “When a motorist files a motion in limine to bar breath test results, the State
       must establish a sufficient foundation for admission of the evidence.” Id. “To lay a proper
       foundation [for admission of a breath test], the State must establish that 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 [2010])) and the regulations promulgated by the Illinois Department of
       State Police.” Clairmont, 2011 IL App (2d) 100924, ¶ 12.
¶ 10       One of those regulations is contained in section 1286.200 of title 20 of the Code (20 Ill.

                                                  -4-
       Adm. Code 1286.200 (2009)). That section provides procedures for establishing the accuracy
       of breath-testing machines. When the four conditions delineated in section 1286.200 are met,
       there is a rebuttable presumption that the breath-testing machine used in a defendant’s case
       was accurate when the test was administered. Id. One of those four conditions provides, in
       relevant part, that “the next accuracy check after the subject test was within the accuracy
       tolerance described in this Subpart.” 20 Ill. Adm. Code 1286.200(c) (2009). Section
       1286.230(a), which is within the “Subpart,” states that “[t]o ensure the continued accuracy
       of approved evidentiary instruments, a BAT [(Breath Analysis Technician)] or automated
       system shall perform accuracy checks,” and those accuracy “[c]hecks shall be performed at
       least once every 62 days.” 20 Ill. Adm. Code 1286.230(a), amended at 33 Ill. Reg. 8529 (eff.
       June 4, 2009). “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.
¶ 11        Although the decision to grant or deny a motion in limine is usually left to the discretion
       of the trial court (People v. Morris, 394 Ill. App. 3d 678, 680 (2009)), the question presented
       in this case is whether the trial court properly excluded the evidence based on its application
       of Clairmont to the undisputed facts presented here. Given that, our review is de novo. See
       Petre v. Kucich, 331 Ill. App. 3d 935, 941 (2002) (when “the relevant facts are undisputed
       and *** the trial court excluded proposed evidence based solely on its interpretation of case
       law, our review is de novo”).
¶ 12        In Clairmont, the defendants, like defendant here, filed motions in limine to bar
       admission at trial of the results of the breath tests they took. Clairmont, 2011 IL App (2d)
       100924, ¶ 5. The defendants argued, like defendant here, that the results were inadmissible
       because the breath-testing machines used to test the defendants were not certified as accurate
       in a timely manner. Id. More specifically, one defendant submitted to testing during a 71-day
       lapse between certification checks and the other submitted to testing in the midst of a 65-day
       lapse. Id. ¶¶ 6, 7. The trial court granted the defendants’ motions in limine, and the State,
       which never advanced an argument that substantial compliance with the Code was had,
       appealed. Id. ¶¶ 7, 28.
¶ 13        On appeal, this court determined that section 1286.230 clearly mandated that certification
       checks be conducted every 62 days. Id. ¶ 14. When, as in Clairmont, the certification checks
       are done more than 62 days apart, the results of a breath test completed during that lapse are
       generally inadmissible at a defendant’s trial. Id. ¶¶ 12, 14.
¶ 14        Here, as in Clairmont, more than 62 days passed between certification checks, and, like
       the defendants in Clairmont, defendant submitted to testing during that lapse. Accordingly,
       it might appear as if, like in Clairmont, the results of defendant’s breath test are inadmissible
       at his trial.
¶ 15        However, unlike in Clairmont, the State here claims that the results of defendant’s breath
       test should be admitted because the State substantially complied with the Code. In
       Clairmont, this court hinted more than once that the results of a breath test will indeed be
       admissible if the State establishes that substantial compliance with the regulation at issue was
       had. Id. ¶¶ 21, 28. Specifically, we stated:


                                                 -5-
            “[W]e note that courts have held that a lack of strict compliance with certain regulations
            does not always render test results inadmissible. [Citation.] In such a case, the State may
            rebut the presumption of unreliability with proof that a test result is valid despite the lack
            of strict compliance with the regulation. [Citation.] Substantial compliance will be found
            where the deviation from the regulation neither affects the reliability of the test nor
            prejudices the defendant. [Citation.]” Id. ¶ 28.
       As the State in Clairmont made clear that it was not making a substantial compliance
       argument, this court had no reason to consider whether the results of the defendants’ breath
       tests were admissible because there was substantial compliance with the Code. Id.
¶ 16        Given that Clairmont suggests that the State may rebut the presumption that the results
       of a breath test are inadmissible if the proper accuracy tests are not had in a timely manner,
       we must conclude that applying Clairmont to the facts presented here, without regard to the
       State’s substantial compliance argument, was improper. Accordingly, we vacate the order
       granting defendant’s motion in limine and remand this cause for an evidentiary hearing on
       whether the State substantially complied with the Code. In doing so, we are in no way
       commenting on the merits of any substantial compliance argument the State may advance
       at that hearing.
¶ 17        For these reasons, the judgment of the circuit court of Du Page County is vacated, and
       this cause is remanded for further proceedings.

¶ 18       Vacated and remanded.




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