No. 2--07--0277 Filed: 9-4-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Du Pa ge Co un ty. ) Plaintiff -Appella nt, )

) v. ) No. 06--CF--1920 ) THEODOR

E CARPENTER, ) Honorab le ) Perry R. Thompson, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: Def endant, Theodore Carpenter, submitted to a breath test and was subseque ntly charg e d with multiple offenses related to driving under the influence (DUI). Also, hisdriving privileges were summarily

suspended. Defendant filed a petition to rescind the summary

suspension and a motion inlimine to suppress the breath t est results, a rguing that notic e of the " tempora rily approve d" brea

th test device used on him

was not "available to the public" under section 1286.210(c) of Title 20 of the Administra

tive Code (20 Ill . Adm. Code §1286.210 (c), amended a t 31 Il l. Reg. 7305, eff. May 1, 2007). Because the temporarily approved device was not liste d on the I llinois State Police Web site, the trial court determined that the public did not have the notice requi red under section 1286.210(c) of Title 2 0 of the A dmin istr ative Code , and it g ranted d efenda nt the re lief he so

ught. We disagree with the trial court's interpr etation. Therefore, we reve rse its decision and remand the

cause.No. 2--07--0277

-2- I. BACKGROUND OnJuly 9 , 2006, de fendant was arr ested by a Glenda le Heig hts polic e offi cer for driving under the influence of alcohol. During the stop, he submitted to a breath test on a device known as the EC-IR I I, which revea led an al cohol con

centra tion of 0.1 23. Defe

ndant wa s subseque

ntly charged by

complaint with multiple counts. Count I alleged that he was driving in the wrong lane while under the

influenc e of alc ohol and w hile his li cense was suspende d (625 I LCS 5/11--501(c--1)(1) (West 2006)). Count II a lleged that the alcohol concentration in his blood was 0.08 or o ver (62 5 ILCS 5/ 11- -50 1(a )(1 ) (W est 200 6)) . C oun t III alleged that he wa s driving

while his license w as suspend ed (625 IL CS 5/6--303(a) (West 2006)), and count IV alleged that he was driving in the wrong lane (625 I LCS 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 cha rgi ng d efe nda nt wit h t wo c oun ts of a ggra vat ed D UI. Two document s in

the record are important for purposes of this appe al. The first document is a memora

ndum on Illinois Stat

e Police letterhead, dated May 12, 20 06, an d sign ed by Direc tor's Designee Nancy Ea sum. Th e me morandum, entitled "Evidentiary Breath Testing Temporary Approva l List, " stated

as follow s: "Upon review of the National Highway Traffi c Safety

Administra

tion's ( NHTSA' s) approval of the Intoximeters EC-I R II breath testing equipment; and After conducting a program suitability evaluation upon the Intox im ete rs E C-IR II breath testing instrument manufactured by Intoximeters, Inc ., andNo. 2--07--0277

-3- WHEREFORE, the Intoximeters EC-IR II breath testing instrument manufactured by Intoximeters, Inc., has been plac ed on the listing of approve d br eath testing equipment by NHTSA; and WHEREFORE, the program suitability e valuation condu ct ed by the Alcohol and Substance Testing

Section ( A&ST) of

the I llinois Stat

e Police showed the I

ntoximeter s ECIR II breath t e s ting instrument manufactured by Intoximeters, Inc ., is compatible with the current evidentiary

breath testing program administered by the Illinois State Police. NOW BE I T THEREF ORE RESOL VED, the Intoximeters EC- IR I

I sha ll be placed

onthe list of evidential breath tes tin g instruments temporarily approved for use as an evidential device; said approval to be effective May 15 , 2006, andexpire 18 months from date of approval." The second docum ent is the affidavit of Director's Desig nee Easum, dated September 5, 2006. In her affida

vit, Easum stated

that she worked as the supervisor of thealcohol and substance testing section, and her job responsibilities included managing and overseeing

the chemical testing pr ogram and t he breath analy sis technicians employed by the Illinois State Police for the performance of the br

eath ce rtifica tion prog ram. According

to her affidavit, the EC-IR I I device was approved for use as an evidential breath testing device on May

15, 2006, as reflected in the May 12

memorandum. Further, her af fidavit stated tha t "any member o f the publ ic may obtain a c opy

of this Evidentiary

Breath Testing Temporary Approval List by

maki n g an oral or written request for the document from the Alcohol and Substance Testing Section." The court conducted a

resciss ion hearing on August 21, 2006. Defendant challeng ed the breath test results in light of the fact that the EC-I R II device was not listed as an approved deviceNo. 2--07--0277

1 Both of defe ndant' s motions in limine state the wron g date and the wrong police department that made the arr est. -4- onthe Illinois State Police Web site. T he State r esponde d that, und

er sect ion 1286.2 10 of Title

20 of the Administrative Code, the Department of State Police may temporarily app rove additional evidential instrumentation after conducting a progr am-suitability evaluation. The court agreed that the Administrative Code allows "temporary changes," but asked

if the temporary

change, meaning th e EC -IR II

device, was posted on the Illinois State Police Web site. The court noted tha tsection 1286.210 states that the list of temporarily approve d evidentiary instrumen

ts shall be "avail able to the public." The State conceded that the EC-I R II was not posted on the Web site. Nevertheless, the State argued that this informat ion was available to the public in that any one 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 g ranted defendant's petition to rescind. In particular, the court found that the EC-IR II was not a va lid or approved instrument because the Department of State Police failed to post approval on its Web site and "make it available to the public." OnSeptember 8, 2006, the State moved to reconsider the trial court's finding rega rding the EC -IR II device. According to the State, section 1286.210 of Title 20 of the Administrative Code does not r equire a specific typ e of publi c notice

or public posting o f the temp orary approva l list. OnFebruary

15, 2007, defendant

filed a motion in limine to suppre ss the re sults of the breath test, and the next day defe ndant filed a corrected inlimine motion. 1 A hearing on the State's motion to reconsider and defendant' s motion inlimine occurr ed on Mar

ch 1, 2007 . Based

on its previous ruling that the Department of State Police failed to provide public notice of the temporary a pprovalNo. 2--07--0277

-5-

of the EC -IR II device, t he cou rt den ied th e Stat e's mot ion t o recon sider and gran ted de fendan t's motion in limine . The tria l court thu s barre d the bre ath test r esults for defenda nt's DUI trial. The State filed a certificate of substantial impairment and appe aled. II. AN ALYS IS Section11--501.2 of the Illinois Vehicle Code (625 I LCS 5/11--501.2 (West 2006)) governs the admissibil ity o f breat

h test results in DUI prosecutions. I t states that the Director of State Police is authorized to c ertify

th e accuracy

of breath testing equipment and to prescribe re gulations as necessary to implementthe section. See 625 IL CS 5/11--501.2 (West 2006). The State's argument is premised on a particular regulation, sectio n 1286.210 of Title 20 of the Administrative Code, whichcontains

a list of th e approv ed instru ments for obtaining breath a naly sis reading s. Subsection (a) of section 1286.210

lists four instruments that have been approved by t he Depa rtment of State Police, a nd this list is posted on the Illinois State Police Web site. Besides the approve d list , subsection(c) allows the Depa rtment of State Polic e to temporarily approve additiona

l breath test devices , such as the one used in this case, the EC-I R II device. It is subsection (c) tha t is at issue he re , a nd we se t i t f

or th in it s e nt ir et y: "(c) The Department may

temporarily appr

ove additional evidential instrumentation fromNHTSA 's list afte

r conducting a pr

ogram s uitability evaluat ion. The D epartme

nt shall maintain a list of evidentiary instruments tempora rily approved f

or breath testing in addition to those provided in subsection (a). Evidentia ry instrumen

ts may be tempor

arily approved for a maximum period of 18 months. The list of t emporarily a pproved evidentiary instrumen ts, if any, shallbe avail able to th e public ." (Emphasis adde d.) 20 Ill. Adm. Code §1286.210(c), amended at 31 I ll. Reg. 7305, eff. May 1, 2007.No. 2--07--0277

-6-

The crux of this

caseis wha t is m eant b y the langu age "available to the public." According to the State, the trial court erred by interpreting this phrase in such a "rigid and narrow" a

nd "hype r technic al" fashion, and there is no requirement that notice be posted on the Illinois State PoliceWeb site. Naturally, def

endant agrees with the trial court that the Department failed to make the temporary a

pproval of the EC-IR I

I device "a

vailable to the public." "Administrative rules and regulations have the force of law and must be construed under the

same standards t hat govern the co nstructio n of statut es." People v. Wilhelm , 346 Ill. App. 3d 206, 208 (2004). The primary

objective of interpreting

a regulation

is to ascertain and give effect to the drafters' intent. Wilhelm , 346 I ll. App. 3d at 208. The most reliable indicator of regulatory intent is the language of

the regulation itself ( People v. Hanna , 207 Ill. 2d 486, 497-98 (2003)), and clear and unambiguous terms are to be given their plain a nd ordin ary meanin g ( People v. Bonutti , 338 Ill. App. 3d 333, 341 (2003)). "Regulatory intent must be ascertained from a consideration of

the entire scheme, its nature, its object, and the consequences resulting from different constructions." Wilhelm , 346 Ill. App. 3d at 208. Furthermore , a court should not construe a regulation in a manner that would lead

to consequences that are absurd, inconvenient, or unjust. Wilhelm , 346 Ill. App. 3d at 208. Regulatory

construction is a question of law that we review de novo

. People v. Jones , 223 Ill. 2d 569, 580 (2006). This question of

construction occurs within the context of defendant's petition to rescind and motion in limine . Generally , a trial cou rt's de cision to g

rant a motion in limine will not be reversed

onappeal unless the trial court abused its discretion. People v. Claudio , 371 Ill. App. 3d 1067, 1069 (2007). Where the issue on appeal is purely a questionof law, however , our rev iew is de novo

. C laudi o , 371 Ill. App. 3d at 1069. The same is true re garding the trial court' s decision grantingNo. 2--07--0277

-7-

defend ant's petition to rescind the summary suspe nsion of his licens e: our re

view is de novo . See Peoplev. Aleliunaite , 379 Ill. App. 3d 975, 980 (2008) ("Althoug h we general ly reverse a tria l cour t's ruling on a petition to rescind a defendant' s summary suspension only if that finding is against the manifest weight of the ev idence [c itation], ou

r revie w here is de novo , as the f

acts ar e not in dispute" and the issue presented is a question of law). As previously mentioned, the regulation at issue states that the list of temporarily approve d evi den tiary

instrumen

ts "shall be avail able to th e public. " In ruling t hat notic e of the t

emporar ily approve d EC-I

R II device was not "a

vailable to the public," the trial court focused on the fact that the EC-IR I I device was not listed on the Illinois State Police Web site. However, we agree with the State that t his was not required under the plain languag e of the regulation. The word " available"

means "accessible or may be obtained." Webs ter's Third New Interna tional Dictionary 150 (1986);

see Price v. Philip Morris, Inc. , 219 Ill. 2d 182, 242 (2005) (when interpre ting statutes, we giv e undefined words t hei r plain and ordinary

meaning, and it is entirely appropriate to employ

the dictionary as a sour

ce to asc ertain the meanin g of und efined t erms) . "Pub lic" is defined as "acce ssible to or s hared b y all memb ers of t he com muni ty." Webs ter's Third N ew International Dictionary

1836 (198 6). As the

State poin

ts out, there is n

o requir ement tha t the list of

tempora rily approved instrumen

ts be poste d on the I

llinois Stat

e Police Web site or

made ava ilable to t he public ina certain fashion. See Bonutti , 338 Ill. App. 3 d at 341 (where statutory terms are clear and unambig uous, the plain language as written must be given e ffect, without re ading in to it exceptions, limitations, or conditions that the legislature did not express). Had the drafter s inten ded that the temporary approval list be available to the public in a particular fashion, the language would re flect such a manner or means of compliance. For example,No. 2--07--0277

-8-

section2175.135(a) of Title 2 of the Administrative Code prescribes a spec ific means of mak ing informationavailab le to the p ublic: minu

tes from meeting s of the Pol lution Contr ol Boar d "will be availab le to the publ ic at the C lerk's Office and *** on

the Boa rd's Web site for a t le as t 6 0 d ays ." 2 Ill. Adm. Code §2175.135(a), amended a t 30 Ill. Reg. 14990, eff. Aug ust 29, 2006; see also 92 Ill. Adm. Code §252 0.110 (2006) ("This Part [of State Toll Highway Rules] shall be available to the general public at the main administrative office of the Authority during regular business hours and

onthe Authority's web site"). Unlike other provisions of the Administrative Code that specify how th e information shall be available to the public, section 1286.210 does not designate how t h e temporary

list shall b e availa

ble to the public. Therefore, the trial court err ed by concluding that the Depart ment's failure

to post the temporary

list on its Web

site cons tituted a l ack of c omplianc e with the regulation. Alth ough there is n

o Illi nois case on point, w e believ e that this result is consistent with our supreme court's decision in Hanna , which involved a different section of the Administrative Code pertainingto breath test devices. The provision at issue stated that breath a naly sis instrumen

ts "will be tested a

nd appro ved by

the Depa rtment in accor

dance w ith but not li

mited to the Standards for Devices to Measure Breath Alcohol promulga ted by the National Hig hway Tra

ffic Safet y Administration." (Emphasis added.) 77 Ill. Adm. Code §510.4 0(c) (1996 ); Hanna , 207 Ill. 2d at 496. The def

endants a rgued that, unde

r the pla in langu age of that se ct ion, the Department was required to perform

the same tests that were conducted by the NHTSA, and three tests required for NHTSA approval had not been

conducted on the breath test devices at issue. Hanna , 207 Ill. 2d at 492, 496. Though the trial court and the appellate cour t found this argument convincing, th e supreme court did not. In Hanna , the technical su pervisor of the br eath alc ohol prog

ram for t he StateNo. 2--07--0277

-9-

Police testified that the Department was not required to perform such tests, because they

were not relevant to the way the de

vices were used in I llinois. Hanna , 207 I ll. 2d at 493. In holding that the Department

was not required to perform thethree tests, the supreme court criticized the lower courts for failing to acknow

ledge or conside

r the "r eal-wor ld activit y- -the use of brea th testing devices in Illinois--that

section 5 10.40(c ) was de signed t o regulate." Hanna , 207 I ll. 2d at 50 3. Accor ding to the supreme court, i nter

preting section 5 10.40(c ) to requ

ire the D epartme

nt to condu

ct the thr ee tests, as the appell ate court did , produced "deci dedly absurd result s." Hanna , 207 Ill. 2d at 503. As in Hanna , we believe that suppressing thebreath t est resu lts in this c ase woul d lead toan unjust result. We note that in Hanna , 207 I ll. 2d at 501, the supreme court criticize d the appe llate court 's failure to consider

"the impact

of [the supervisor's] testimony upon the proper interpretation" of the reg ulation. I n this case, we have the affidavit of Ea sum, the supervisor of the alcohol and substan ce testing

section, stating

that "a ny member of

the public

may obtain a c opy

of this Evidentiary

Breath Testing Temporary Approval List by

making an ora l or written request for the document from the Alcohol and Substa nce Tes ting Section." The State similarly arg

ued before the trial court that any

member o f the publ ic could c all the Department, ask to see the temporary list, and receive a copy of the

list. Given the plain, ordinary mea n ing of th e terms , we believe that the temporary list was " available to the public," in that it was "accessible" or able to " be obtained" by "all members of the community ." Also, our conclusi on is in har

mony with the pu

rposeof section 1286.210, which is to ensure that breath test devices are approved by the Department before their use. See Peoplev. Rigsby , No. 5--06--0639, slip op. at 4 (June 24, 2008) (in order to raise the rebuttable presumption that a breat h test device was accurate , one of the four conditions that must be met is that the device wasNo. 2--07--0277

-10-

approved). Here, there is no q ues ti on t hat th e EC -IR II device was tempor arily approve d at the time it was used in July 2006. Mor eov er, on M ay 1, 200 7, t he E C-IR II device was added to the list of approved instruments in subsection (a) of section 1286.210 of Title 20 of the Administrative Code. Becau se defendant does not challenge the a ccuracy of the device, to suppre ss the bre ath test r esults would ignore the purpose of

the regulation, which is to require testing with a device approved by

the Department. Alth ough there is no out-of-state case directly on point, we note that other jurisdictions confronted

with alleged violations of administrative regulations have focused primaril y on whether the test results were accurate and reliable. In People v. Rexford , 228 Mich. App. 371, 579 N.W.2d 111 (1998), for

instance , a techn

ical viola tion of an administr

ative ru le did not require suppression of the defendant's breath test results. I n that case, despite an administrative rule requiring the testing

o f breath test devices at least once during e very ca lendar week, one test was missed during a six

month period. Rexford , 228 Mich. App. at 373, 378, 579 N.W.2d at 113, 115. The reviewing court disagreed with the defendant's contention that there was a "bright-line rule of automatic suppression" of evidence where an administrative rule ha d not been complied with, andthere wa s nothing to indicate that the test results were inaccurate. Rexford , 228 Mich. App. at 377, 579 N.W.2d at 115. Inanother Michigan case, People v. Tipolt , 198 Mich. App. 44 , 497 N .W. 2d 198 (1993), the trial court grante d the defendant's motion to suppress breath test results because the device was not inspected within 120 days of its last inspection date, eve n though the device had been taken out of service. Tipolt , 198 Mich. App. at 45, 497 N. W.2d at 199. The reviewing court re asoned that to "agree with the tr

ial cour t would lea

d to absur

d and unju st

results," and it held that the 120-day obli ga tion appl ied only to instruments that were in ser vice. Tipolt , 198 Mich. App. at 47, 497No. 2--07--0277

-11-

N.W.2d at 200. Significant to the court was the fact that the device used to test the defendant had been verified for accuracy

less than two weeks beforeb eing used on the defendant and had be en tested weekly for

a couple of months thereafter. Tipolt , 198 Mich. App. at 47, 497 N.W.2d at 200. Fi na ll y, in City

of Salem v . Noble , 45 Or. App. 453, 608 P.2d 603 (1980), the trial court suppressed breath test resultsin light of the defendants' failure to bre athe into the machine for 12 seconds. The reviewing court reversed based

on a reg ulatory amendme

nt, which retroa ctively eliminated the 12- second requirement, and because the discrepa ncy betwe en the regulation and theadministration of the breath test did not affect the accuracy or reliability of the test re sults. Noble , 45 Or. App. at 457- 58, 608 P.2d at 605-06. The court stated that "[m]ore mischief would result from a suppression of valid test resu lts under these ci rcumstan ces than any ill effe ct from r

etr oactive elimination of an operational requirement

that is irrelevant t o the accuracy of the breath tests." Noble , 45 Or. App. at 458, 608 P.2d at 606. Consistent

with Hanna

and other jurisdictions, we must construe section 1286.210 " within the real-world activity " that the section was intended to regulate. See Hanna , 207 Ill. 2d at 500. By virtue of subsection (c), the drafters have se en fit to allow the De partment to temporarily a pprove breath test devic es in addi

tion to the o

nes listed in subse cti on (a) after conducting a programsuitability evaluation. In this case, not only wa s t he E C-IR II

device temporarily

approved, but approval was available to the public within the meaning of se ction 1286.210(c). We turn now to

defenda nt's re ma ini ng arguments in support of the trial court' s decision. First, defendant argues that the memora n dum tempo rarily appr

oving the EC-IR I

I device was not

s igned by the Direc

tor of the State Police as required by section 11--501.2 of the Illinois Vehi cl e Code ( 625 IL CS 5/11 --501.2 ( West 2006) . Section 1 1--501.2states tha t "[t]he Dir

ector of StateNo. 2--07--0277

-12-

Police isauthorized to approve satisfactory techniques or methods *** and to certify the accuracy of breath testing equipment." 625 I LCS 5/11--501 .2 (West 2006 ). Based on this language , defendant argues that only

the Director, as opposed to the Dire ct or's De signee , is author ized to approve speci fic br eath t estin g devic es. In ot her wor ds, t he mem orand um si gn ed by Direc tor's Designee Easum fails to comply with the approval procedure required in sec tion 11--501.2. We reject t

his arg ument, for obvious reasons. Although the I llinois Vehicle Code does not define "Direc

tor," th e appell ate court has interpreted "Director" to refer to the named director of a departmen t or his designee

. Welch v. Hoeh , 314 I ll. App. 3d 1027, 1034

(2000). I

t is comm o n practice for an agency

official to delegate specific re sponsibilities to a subordinate. Welch , 314 I ll. App. 3d at 1034. Moreover, the Department, in its regulations, states that " Direct or" means the "Director of State Polic e or the D irector 's desig nee." 2 0 Ill. Adm. Code § 1200.20, a dopted at 24 Ill

. Reg. 6982, eff. April 21, 2000. Because defendant cites to nothing in the Illinois Vehicle Codeor the Administrative Code prohibiting Easum from signing on behalf of the Director as his designee, his arg ument fa ils. Second, def

end ant arg ues th at t he m emo ran dum tem por ari ly ap pro vi ng t he E C-IR II device served as a "mo dificati on" to section 1286.210 of Title 20 of the Administra tive Code a

nd that this modificationviolated section 5--10 of the Administrative Procedure Act (5 IL CS 100/5-- 10 (West 2006)), because it was not published in the Illinois Register or filed with the Secretary of State and becaus e it was not made ava ilable for public in spection . Essentia lly, defenda

nt argu es that th e "modifica tion" is actually a " rule" subject to the requirements set forth in the Administrative Procedure Act. See

5 ILCS 100/5-- 10(c) (

West 2006)("No a

gency rule is va lid or eff ective a gainstNo. 2--07--0277

-13-

any pe rs on or pa rt y, nor may be invoked by the ag ency for any purpose, until it has been ma de available for public inspection and filed with the Secretary of State as required by

this Act"). Defend ant's argument is a circular one at be st. The tempora ry a ppr ova l o f th e EC -IR II device does notconstitute an independent rule within the meaning of section 1--70 of

the Adm inistrative Procedure Act. See 5 I LCS 100/1--70 (West 2006) (" 'Rule' means each

agenc y statement of general ap

plicabili ty that implements, applies, interprets, or prescribes law or policy" ). Rather, it is an authorized application of subs e ction (c) of section 1286.210 of Title 20 of the Administrative Code, which allows the Dep artment to temporarily a pprove evidential instrumentation in addition to those provided in subsection (a). In othe r words, the temporary appro val of the EC-IR I I device does not constitute a new rule but is an implementation of an existing regulation. Otherwise, under defe ndant's reasoning, the

temporary

approva l of each breath test device would constitu te a "r ule" subje ct to the r

equirements of th e Administ rative Pr ocedure Act. The authority to "tempora rily approve" the EC-I R

II device d erived f rom secti on 1286.21 0(c) of Title 20 of the Administrative Code. Accordingly , the memorandum evidencing such temporary approval did not con stitute a " rule" w ithin the me aning o f the Admi nistrativ e Proced

ure Act. Defend ant's fi nal arg ument is again prem ised on the

Administra

tive Proc edure A ct. According

to defendant, because section 1286.21 0(c) allows for "temporary amendments" of the regulation

for a period of 18 months, it violates section 5--45(c) of t h e Administ

rative Pr ocedure Act, whichstates that an"emergency rule may be effective for a perio d of not lon ger than 150 days." 5 IL CS 100/5--45(c) (West 2006). Where an agency de termines that an "emergenc y" e xists, it may ado ptemergency

rules for a period of no more than 150 day s without following the g enera l rulemakingprovision, which sets forth the requir ements of public

notice a nd a minimum

time fra meNo. 2--07--0277

-14-

for formal hearings and comments on the pro posed rules. County of Du Page v. Illinois Labor Relations Board , 358 Ill. App. 3d 174, 179-80 (2005). The Administrative Procedure Act defines "e me rg en cy" as the "exist ence of any situation t

hat any agenc y f inds rea sonably

constitutes a threat to the public interest, safety , or welfare." 5 I LCS 100/5--45 (West 2006). Defendant 's a rgument ignores the fact that temporary approval under section 1286.210(c) is not an emerg ency rule

. Theref ore, i t cann ot run afoul of the 150-d ay limit ation for em ergency rul emaki ng. III. CONCL

USION For th e f or eg oi ng re as on s, th e t em po ra ry approva l of the EC- IR I

I de vice wa s availa

ble to the public within the meaning of section 1286.210(c) of

Title 20 of

the Admini strative

Code. As a result, the trial court erred by granting defenda nt's petition to rescind and motion in limine to suppress the breath test results. The judgment of the Du Page County circuit court is reve rsed and this case is remanded. Reversed and remanded. HUTCHINSON and BU

RKE, JJ., concur.