dissenting:
I dissent from the majority’s opinion.
I do not conclude that defense counsel waived her client’s right to complain that there was a lack of foundation supporting the breath-alcohol evidence utilized in the defendant’s conviction. There was no doubt that the defense argued the matter of foundation from the beginning of the trial. The majority is correct that when the State sought to introduce the breath-alcohol test result in issue, defense counsel did not object to its introduction. However, I believe that given the number of other times before, during, and after the trial that the foundation issue was raised by defense counsel, the foundation issue was preserved. I also note that the State does not argue that the defendant waived the issue.
Prior to the trial, counsel for the defendant sought discovery of the necessary foundational documents from the State. Those requests were dated July 10, 2006, and September 18, 2006. By a pretrial motion in limine, the defendant asked the court to bar the State’s use of the breath-test results for the State’s failure to produce them in discovery before the trial. The prosecutor replied and indicated that he did not believe he needed the logbook, to which the trial judge pressed him on whether or not he had sufficient foundational evidence. The prosecutor had no documentation in his file, and he had to leave the courtroom to contact the police department. The logbook pages utilized at the trial were the ones that the Lebanon police department faxed to the prosecutor. The trial court indicated that a ruling would be forthcoming, but the record and the minute entries reflect no such order. During cross-examination, a Lebanon police officer admitted that he did not know if the May 25, 2006, certification check had been performed before or after the defendant’s test. The State had the officer on the stand, and in possession of the logbook, and did not seek to clarify the matter by documenting any certification done after the date of the defendant’s test. The majority’s contention that the defense “sandbagged” the State by waiting to raise the foundational failures until counsel filed a motion for a directed verdict is factually incorrect. Any further questioning on the part of the defense counsel about prior or subsequent certification checks would have been contrary to the position of her client. It was up to the State to verify the existence and timing of these recertification checks, and there is no reason that the State could not have done so on direct and/or on redirect. While her motion for a directed verdict at the close of the State’s case did involve this missing element, there should have been no doubt from the motions filed before the trial, and her questioning during the trial, what argument defense counsel was making. Furthermore, the missing element is a key foundational component to the most important piece of evidence used against the defendant in this case. Her argument by a motion for a directed verdict should not have been a surprise to the State.
Despite defense counsel’s failure to object to the admission of the breath-test document, from the entirety of the motions, arguments, and cross-examination, I would not conclude that the defendant waived his right to object to the lack of foundation.
I would also like to comment on this foundational requirement to stress its importance to the crime with which the defendant was charged.
The use of breath-alcohol-testing instruments is fairly complicated, in that only certain instruments are authorized by the federal and state governments to be used for the detection of blood-alcohol content, only highly trained individuals can operate the instruments, and the instruments require frequent tests to ensure their reliability. See 20 Ill. Adm. Code §1286.210 (eff. June 30, 2004) (containing the list of approved breath-alcohol instruments — instruments that have been the subject of rigorous testing); 20 Ill. Adm. Code §1286.230 (eff. June 30, 2004) (the accuracy or certification checks that must be performed no more than every 62 days); 20 Ill. Adm. Code §1286.70 (eff. June 30, 2004) (the rule regarding the maintenance of records relative to the tests performed by defendants, the accuracy tests, and any service records); 20 Ill. Adm. Code §1286.100 (eff. June 30, 2004) (the licensure requirements for all breath-alcohol-instrument operators). Additionally, in order for evidence of the blood concentration of alcohol to be admissible, the testing must have been performed in keeping with “standards promulgated by the Department of State Police” and by a person possessing a permit issued by the Department of State Police for purposes of testing blood-alcohol content. 625 ILCS 5/11— 501.2(a)(1) (West 2004). The Department of State Police is authorized by statute to “certify the accuracy of breath[-]testing equipment” and to “prescribe regulations as necessary” relative to training and to ensure the accuracy of the instruments. 625 ILCS 5/11 — 501.2(a)(1) (West 2004).
At issue in this case was one portion of the regulation that included the following requirement:
“No accuracy check has been performed subsequent to the subject test[,] or the performance of the instrument on the next accuracy check after the subject test was within the accuracy tolerance described in this Subpart.” 20 Ill. Adm. Code §1286.200(c) (eff. June 30, 2004).
If the regulatory “no test” language is literally construed, as the State urges, that interpretation produces what I find to be an “absurd result.” See People v. Hanna, 207 Ill. 2d 486, 498, 800 N.E.2d 1201, 1207 (2003). When an interpretation of the wording of a statute utilizing the plain-meaning rule would lead to an “absurd” result, then the plain-meaning rule need not be followed. Hanna, 207 Ill. 2d at 498, 800 N.E.2d at 1207-08.
The purpose of the certification tests is to ensure that the instrument is properly functioning, thereby ensuring result accuracy. The language of this regulation mandates that any subsequent certification check be within the allowable range. This, too, serves to establish that the instrument continues to function properly. By inference, if the certification tests performed before and after a defendant’s test yield results within the accepted deviation values (and the department was using an approved instrument and the certification tests were completed every 62 days or less), then as the regulation states, “[a] rebuttable presumption exists that an instrument was accurate at the particular time a subject test was performed” (20 Ill. Adm. Code §1286.200 (eff. June 30, 2004)). I would conclude that the “no test” language does not allow the State to simply neglect to introduce its evidence relative to the next certification check.
In this case, the trial did not occur until some months after the 62 days following the defendant’s test. So, there necessarily would have been another accuracy test after the defendant’s test. The final entries of both of the logbook sheets introduced into evidence relative to the breath-alcohol-testing instrument used by the Lebanon police department coincidentally ended on May 25, 2006. The next pages of these logbooks were not introduced, and there was no testimony about a certification check conducted after May 25, 2006.
Furthermore, to accept the State’s theory that “no test” means that the departments were not required to test the instrument for accuracy at any time after the defendant’s test, the evidence at the trial certainly did not prove that no test had occurred. From entries (one finalized and one crossed out) on the two logbook sheets introduced into evidence, there was an accuracy check performed on the same date that the defendant’s test was performed — May 25, 2006. We do not doubt that this May 25, 2006, test was designed to be the next accuracy check after the April 12, 2006, accuracy test. The State could have taken the position that this May 25, 2006, test was performed before the defendant’s test (earlier in the day) — eliminating the need to prove up the April 12, 2006, test. Or the State could have taken the position that this May 25, 2006, test was performed after the defendant’s test, which would have effectively satisfied the third requirement of the administrative regulation on accuracy. The State chose to take neither position. In response to a defense motion for a directed verdict during the trial referencing the State’s failure to establish if the May 25, 2006, accuracy check had been performed before or after the defendant’s test, the prosecutor said:
“We did not elicit testimony that the certification happened on the day of this arrest. We elicited testimony that it happened 43 days earlier, which is within the time frame allowable by law.”
From this argument I believe that the prosecutor missed the point of the requirement. Obviously, had the Illinois State Police employee who performed the accuracy check on May 25, 2006 — again, Clyde Matthews — listed the time of the test, the handling of this evidence would likely have been different. From a look at the two logbook sheets in evidence, it would appear that Clyde Matthews did not ever record the time of his certification checks — just the date and the results. The April 2006 accuracy check results also contained no listed time for the checks. The prosecution took the position that by proving up the April 12, 2006, accuracy check, the State’s required evidence regarding the reliability of the test result in question was complete. About this, I contend that the State was wrong.
The more specific manner in which the State charged the defendant with driving under the influence of alcohol necessitated the admission of breath-alcohol test results. See 625 ILCS 5/11 — 501(a)(1) (West 2004). Because the State failed to prove the foundational element necessary to establish the accuracy of the defendant’s May 25, 2006, breath-alcohol test and because a breath-alcohol test at or above .08 was a required element of the crime with which the defendant was charged, I believe that the State failed to prove the defendant guilty of the crime beyond a reasonable doubt.
I also find that the majority’s reliance upon People v. DeLuna, 334 Ill. App. 3d 1, 777 N.E.2d 581 (2002), is misplaced because it is factually distinguishable. In DeLuna, because the expert witness had already testified that the substance at issue was, in fact, cocaine, the defendant’s argument was not that the substance was something other than cocaine but that the State had not established that the expert’s testimony was of the type reasonably relied upon in the industry and/or that the machines utilized in analyzing the chemical content were properly functioning. DeLuna, 334 Ill. App. 3d at 19, 777 N.E.2d at 597-98. With breath-alcohol tests, administrative regulations mandate testimony about the accuracy checks completed on the machine utilized — checks completed both before and after the subject test and within a certain time frame. Compliance with an administrative regulation was not at issue in DeLuna. Also, as the court in DeLuna indicated, “sufficiency involves absence of proof of a basic element of the crime,” and that was not at issue in DeLuna because the expert testified that the substance was, in fact, cocaine. DeLuna, 334 Ill. App. 3d at 20, 777 N.E.2d at 598. In this case, what was at issue was the level of alcohol within the defendant’s system as quantified by a breath-alcohol test — not the mere presence of alcohol. Unlike cocaine, which is illegal in any quantity, it is not a crime to have a blood-alcohol level less than .08 as long as it does not impair one’s driving abilities. Without proper testimony about the device’s history of accurate reporting, the proof fails. This situation involves the admissibility of the result — not just the sufficiency of the evidence. For that reason, the majority’s reliance upon DeLuna is inappropriate.
For the reasons stated herein, I respectfully dissent.