
20 April 2000

NOS. 5-99-0242 and  5-99-0277

(Consolidated)



IN THE



APPELLATE COURT OF ILLINOIS



FIFTH DISTRICT

________________________________________________________________________



THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

)  Circuit Court of

     Plaintiff-Appellant,				)  Washington County.

)

v.							)  Nos. 98-DT-57

)          98-TR-2488

SHIRLEY DUNNIGAN,				)

)  Honorable William A. Schuwerk, Jr.,

     Defendant-Appellee.				)  Judge, presiding.

________________________________________________________________________



THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

)  Circuit Court of

     Plaintiff-Appellant,				)  Williamson County.	

)

v.							)  Nos. 98-DT-139

)          98-DT-162

TIMOTHY SWORM, WILLIAM DEATON,	)          98-DT-180

CHESTER ROLLINS, JERRY RISLEY,		)          98-DT-187

LEWIS MAY, SR., GERALD DAVIS, and	)          98-DT-193

OREN PEOPLES,					)          98-DT-210

)          98-DT-63

     Defendants-Appellees.				)

)  Honorable Kimberly Dahlen,

)  Judge, presiding.

________________________________________________________________________



JUSTICE RARICK delivered the opinion of the court:



Each of the defendants involved in these two cases was charged with driving under the influence of alcohol.  Each filed a motion to exclude or suppress the results of his or her breathalyzer exam, based on 
People v. Morris
, 301 Ill. App. 3d 603, 703 N.E.2d 923 (1998), alleging that the instrument used to test their breath, the Intoxilyzer 5000, was not operated in conformity with the Illinois Administrative Code.  In each instance, the defendant's motion was granted.  The State appeals, contending the trial court erred in excluding and suppressing the test results.  We agree and therefore reverse.

In 
People v. Orth
, 124 Ill. 2d 326, 530 N.E.2d 210 (1988), our supreme court stated that the foundational requirements for the admission of a breath-analysis result include:

"(1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the tests was certified by the Department of Public Health, (3) evidence that the machine used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutes prior to the test and, during this period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that the results appearing on the 'printout' sheet can be identified as the tests given to the motorist."  124 Ill. 2d at 340, 530 N.E.2d at 216-17.

At the hearings on defendants' motions, the State presented the testimony of Larry Etzkorn, the division chief for health care regulation public services for the Illinois Department of Public Health.  Mr. Etzkorn was the draft author of the regulations regarding the approval and certification of breathalyzer machines.  His responsibilities also included determining whether or not an instrument such as the Intoxilyzer 5000 should be approved for use by the Department of Public Health.  Mr. Etzkorn, accepted as an expert witness on matters pertaining to breath analysis and the Intoxilyzer 5000 machine, testified that during every breath test the Intoxilyzer 5000 will run an "internal standard" with that standard set at .01.  If the instrument should deviate during the testing cycle in excess of .01, the test cycle or breath test will be aborted automatically.  He further stated that after performing hundreds of tests on the machine with the third digit turned on, analysis of the resulting data showed that the probability of the existence of the hypothetical situation which prompted the decision in 
Morris
, namely, that a mathematical discrepancy with a range above that allowed by the regulations (plus or minus 0.01), was so small as to be nonexistent.  He further testified that when the third digit of the instrument is turned off, it is simply truncated and does not influence the second digit at all.  According to Mr. Etzkorn, there is no manufacturer recommendation with regard to the use of a third digit, and the standard procedure for the Department of Public Health has always been using two digits to the right of the decimal point on the instruments.  Mr. Etzkorn also explained that the 
Morris
 decision was based upon a false premise that the sample solution was certified as 0.101 rather than in reality being certified at 0.10 plus or minus 0.01.  Without the false premise, Mr. Etzkorn concluded that the 
Morris
 assumption of a test higher than the acceptable margin of error could not exist.  With regard to the second air blank, Mr. Etzkorn testified that neither the regulations nor the operating manual for the Intoxilyzer 5000 requires that the second air blank be printed.  According to Mr. Etzkorn, the machine automatically performs the second air blank even though the result is not printed.  If the second air blank is not done, no test result will be printed.  Mr. Etzkorn explained that the purpose of the second air blank is not to detect interferant that could influence a test result but rather to purge the machine of the corrosive effect of alcohol on the instrument.

Looking at the plain language of the regulations, the acceptable margin of     error on a breathalyzer machine is plus or minus .01.  See 77 Ill. Adm. Code §510.100(a) (1995); 
People v. Cady
, No. 3-99-0158, slip op. at 8 (Feb. 2, 2000).  The entire regulatory scheme does not require accuracy beyond plus or minus .01.  We, too, decline to determine the relative merit of mathematical theories in determining whether a breathalyzer machine has been properly certified, and we conclude that the regulations do not require accuracy beyond two digits.  See 
Cady
, slip op. at 9.  In contrast to our holding in 
Morris
 where such evidence was lacking, we conclude that in these instances the State met its burden of proving that the machines at issue were certified accurate within plus or minus .01, and their ability to yield a three-digit result therefore is irrelevant.  See 
Cady
, slip op. at 9.  Accordingly, the circuit court erred in ruling that the State had not met its burden and further erred in excluding and suppressing the results of defendants' breath tests.  

We therefore reverse and remand these causes for further proceedings consistent with this disposition.



Reversed; cause remanded.



WELCH and CHAPMAN, JJ., concur.

