People v. Carpenter

895 N.E.2d 24, 385 Ill. App. 3d 156, 324 Ill. Dec. 24, 2008 Ill. App. LEXIS 872
CourtAppellate Court of Illinois
DecidedSeptember 4, 2008
Docket2-07-0277
StatusPublished
Cited by6 cases

This text of 895 N.E.2d 24 (People v. Carpenter) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Carpenter, 895 N.E.2d 24, 385 Ill. App. 3d 156, 324 Ill. Dec. 24, 2008 Ill. App. LEXIS 872 (Ill. Ct. App. 2008).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Theodore Carpenter, submitted to a breath test and was subsequently charged with multiple offenses related to driving under the influence (DUI). Also, his driving privileges were summarily suspended. Defendant filed a petition to rescind the summary suspension and a motion in limine to suppress the breath test results, arguing that notice of the “temporarily approved” breath test device used on him was not “available to the public” under section 1286.210(c) of Title 20 of the Administrative Code (20 Ill. Adm. Code §1286.210(c), amended at 31 Ill. Reg. 7305, eff. May 1, 2007). Because the temporarily approved device was not listed on the Illinois State Police Web site, the trial court determined that the public did not have the notice required under section 1286.210(c) of Title 20 of the Administrative Code, and it granted defendant the relief he sought. We disagree with the trial court’s interpretation. Therefore, we reverse its decision and remand the cause.

I. BACKGROUND

On July 9, 2006, defendant was arrested by a Glendale Heights police officer for driving under the influence of alcohol. During the stop, he submitted to a breath test on a device known as the EC-IR II, which revealed an alcohol concentration of 0.123. Defendant was subsequently charged by complaint with multiple counts. Count I alleged that he was driving in the wrong lane while under the influence of alcohol and while his license was suspended (625 ILCS 5/11— 501(c — 1)(1) (West 2006)). Count II alleged that the alcohol concentration in his blood was 0.08 or over (625 ILCS 5/11 — 501(a)(1) (West 2006)). Count III alleged that .he was driving while his license was suspended (625 ILCS 5/6 — 303(a) (West 2006)), and count IV alleged that he was driving in the wrong lane (625 ILCS 5/11 — 701 (West 2006)).

After his driving privileges were summarily suspended, defendant filed a petition to rescind the summary suspension on July 12, 2006. In the meantime, the grand jury returned an indictment charging defendant with two counts of aggravated DUI.

Two documents in the record are important for purposes of this appeal. The first document is a memorandum on Illinois State Police letterhead, dated May 12, 2006, and signed by Director’s Designee Nancy Easum. The memorandum, entitled “Evidentiary Breath Testing Temporary Approval List,” stated as follows:

“Upon review of the National Highway Traffic Safety Administration’s (NHTSA’s) approval of the Intoximeters EC-IR II breath testing equipment; and
After conducting a program suitability evaluation upon the Intoximeters EC-IR II breath testing instrument manufactured by Intoximeters, Inc., and
WHEREFORE, the Intoximeters EC-IR II breath testing instrument manufactured by Intoximeters, Inc., has been placed on the listing of approved breath testing equipment by NHTSA; and
WHEREFORE, the program suitability evaluation conducted by the Alcohol and Substance Testing Section (A&ST) of the Illinois State Police showed the Intoximeters EC-IR II breath testing instrument manufactured by Intoximeters, Inc., is compatible with the current evidentiary breath testing program administered by the Illinois State Police.
NOW BE IT THEREFORE RESOLVED, the Intoximeters EC-IR II shall be placed on the list of evidential breath testing instruments temporarily approved for use as an evidential device; said approval to be effective May 15, 2006, and expire 18 months from date of approval.”

The second document is the affidavit of Director’s Designee Ea-sum, dated September 5, 2006. In her affidavit, Easum stated that she worked as the supervisor of the alcohol and substance testing section, and her job responsibilities included managing and overseeing the chemical testing program and the breath analysis technicians employed by the Illinois State Police for the performance of the breath certification program. According to her affidavit, the EC-IR II device was approved for use as an evidential breath testing device on May 15, 2006, as reflected in the May 12 memorandum. Further, her affidavit stated that “any member of the public may obtain a copy of this Evidentiary Breath Testing Temporary Approval List by making an oral or written request for the document from the Alcohol and Substance Testing Section.”

The court conducted a rescission hearing on August 21, 2006. Defendant challenged the breath test results in light of the fact that the EC-IR II device was not listed as an approved device on the Illinois State Police Web site. The State responded that, under section 1286.210 of Title 20 of the Administrative Code, the Department of State Police may temporarily approve additional evidential instrumentation after conducting a program-suitability evaluation. The court agreed that the Administrative Code allows “temporary changes,” but asked if the temporary change, meaning the EC-IR II device, was posted on the Illinois State Police Web site. The court noted that section 1286.210 states that the list of temporarily approved evidentiary instruments shall be “available to the public.” The State conceded that the EC-IR II was not posted on the Web site. Nevertheless, the State argued that this information was available to the public in that anyone could call the Department of State Police, ask to see the temporary list, and then receive the list. According to the State, making the temporary list “available to the public” did not require that it be posted on the Web site. The court disagreed and granted defendant’s petition to rescind. In particular, the court found that the EC-IR II was not a valid or approved instrument because the Department of State Police failed to post approval on its Web site and “make it available to the public.”

On September 8, 2006, the State moved to reconsider the trial court’s finding regarding the EC-IR II device. According to the State, section 1286.210 of Title 20 of the Administrative Code does not require a specific type of public notice or public posting of the temporary approval list.

On February 15, 2007, defendant filed a motion in limine to suppress the results of the breath test, and the next day defendant filed a corrected in limine motion. 1 A hearing on the State’s motion to reconsider and defendant’s motion in limine occurred on March 1, 2007. Based on its previous ruling that the Department of State Police failed to provide public notice of the temporary approval of the EC-IR II device, the court denied the State’s motion to reconsider and granted defendant’s motion in limine. The trial court thus barred the breath test results for defendant’s DUI trial.

The State filed a certificate of substantial impairment and appealed.

II. ANALYSIS

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Cite This Page — Counsel Stack

Bluebook (online)
895 N.E.2d 24, 385 Ill. App. 3d 156, 324 Ill. Dec. 24, 2008 Ill. App. LEXIS 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-carpenter-illappct-2008.