1-00-0251)							FOURTH DIVISION

1-00-0252)							JUNE 28, 2001

1-00-0253)

1-00-0256)

1-00-0257)

1-00-0258)

1-00-0259)

1-00-0897) Cons.

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

								)	Circuit Court of

		Plaintiff-Appellant,		)	Cook County.

								)

	v.							)

								)	No. Y8017303

DAVID LARSEN, GREGORY MURPHY, JOSEPH	)

CHESLAK, MATTHEW KOLLIOS, JESSE		)

CASTILLO, WALTER STERNBERG, JASON KOMIS,)	Honorable

and LESLIE MAJORS,					)	Nicholas T. Pomaro &

								)	Martin McDonough,

		Defendants-Appellees.		)	Judges Presiding.

	PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

	The State appeals the circuit court's grant of motions in limine made by defendants David Larsen, Gregory Murphy, Joseph Cheslak, Matthew Kollios, Jesse Castillo, Walter Sternberg, Jason

Komis, and Leslie Majors barring admission of the results of defendants' breathalyzer tests at trial.  The State filed Supreme

Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)) certificates of

substantial impairment in each case.  The sole issue raised by the

State on appeal is whether the court properly excluded evidence of

the breathalyzer tests based on the alleged improper certification

of the breathalyzer machines, in each of the consolidated cases.

	Each defendant was charged with driving while under the

influence of alcohol in violation of section 11-501(a)(2) of the

Illinois Vehicle Code (the Code) (625 ILCS 5/11-501(a)(2) (West

1998)) and driving while under the influence of alcohol with an alcohol concentration of .08 or more in violation of section 11-

501(a)(1) of the Code (615 ILCS 11-501(a)(1) (West 1998)).  While

in custody, each defendant submitted to a breathalyzer test,

conducted on an Intoxilyzer 5000 machine, which resulted in breath

alcohol concentrations (BAC) in excess of .08.1  Each defendant moved in limine to exclude the results of his breathalyzer test based on People v. Morris, 301 Ill. App. 3d 603, 703 N.E.2d 923 (1998) (Morris), alleging that the machines used to administer the tests were not in compliance with Illinois Department of Public

Health (the Department) regulations.

	The cases of defendants Larsen, Murphy, Cheslak, Kollios,

Castillo, Sternberg, and Komis were consolidated for purposes of an

evidentiary hearing on the motions in limine.  

	The State presented the testimony of Larry Etzkorn, the

division chief for the alcohol and substance testing program for

the Department.  Etzkorn described how the machines in the field

were tested monthly for accuracy, in compliance with Department

regulations.  Using a certified controlled reference solution

(solution), inspectors would run the accuracy test twice and if the

results of each test fell within the plus or minus .01 standard the machine was certified as accurate.  Etzkorn explained that the

solution is constituted of ethanol and water, created at either the

State Police laboratory or the Department laboratory.  Once a batch

of the solution was created, it was tested by gas chromatograph to

establish the appropriate value.  Both the State Police and the

Department used a .08 solution.  The Department cross-checked the

solution on either an Intoxilyzer 3000 or 5000, but both the

Department and the State Police certified the solutions based only

on the gas chromatograph reading.  According to Etzkorn, the

Department regulations refer to only two digits to the right of the

decimal point, in regard to both the subject test results and the

certification of machines.  Prior to March 1, 1999, the

breathalyzer machines in Illinois were set to only two digits. 

After that date, he issued a directive to the inspectors to include

the third digit because of his inability to testify at the

increasing number of trials throughout the state in defense of the

machines.  He explained that the machine truncates any digits beyond the first two and does not round up to the next number. 

	The parties stipulated to the test result evidence, involving

each defendant.

	According to the Department, each solution used to test the

machines was certified as .08 plus or minus .01, the .07 test

results thereby coming within the appropriate range and the machines, therefore, were properly certified. 

	Ronald Henson testified as an expert witness on behalf of

defendants.  According to Henson, batch 98-175 of the certified

controlled reference solution, which was used to test the machine

in Murphy's case, had a value of .096 when run on the gas

chromatograph.  The Department cross-referenced that solution on

the Intoxilyzer 5000 and obtained a reading of .081.  In Henson's

opinion, a problem arose because a solution with a value of .081

was used to certify the machine and the machine's test result was

.07.  Without identifying the third digit on the test result and,

assuming the third digit was zero (it could be any number from 0 to

9), simple arithmetic indicates that the result is a .011 variance

(.081-.070=.011), which is a higher figure than Department

regulations allow.  He concluded that with regard to Murphy, there

was no way to ascertain whether the test was within the .01

variance allowed by the Department regulation, because the test was

not reported to the third digit.

	Henson extended his theory to the other defendants' despite

the fact that batch 98-175 solution was not used to certify the

machines in those cases.  According to Henson, the variance in the

other defendants' cases would be even higher than that in Murphy's

case because the gas chromatograph values obtained in the other

defendants' cases ranged from .097 to .099, resulting in a reading in the Intoxilyzer 5000 greater than .081.2  He concluded that where the test results were not reported to the third digit, it was

not possible to draw a conclusion that the tests met the plus or

minus .01 standard.  In his opinion, defendants' breath tests did

not comply with the standard required by the Department.        

	Etzkorn testified that he conducted an epidemiological study

of the third digit issue, from March 1999 through June 1999, where

he gathered all the information coming from the field using the

standard reports which are collected from inspectors, and he

reviewed the third digit values that were displayed on the

certification ticket.  In 1,010 test samples, a test inaccuracy or

certification that exceeded .01 never occurred.  He found that the

range of the tests were from a .006 positive to a .009 negative

from the known solution.  In response to questioning by the circuit

court, Etzkorn admitted that it was mathematically possible for a

variance of greater than .01 to occur, but that "[w]e are talking

somewhere out in the one in a million, one in a billion theory." 

In his opinion, all the breath test certifications and machines in

these cases were appropriately certified as accurate and were in

compliance with the Department regulations and the Code.         

	Etzkorn explained that the Morris decision was based on a false premise that the sample solution was certified as .101.  He

explained that neither the Department nor the State Police have

ever certified a solution other than a .10 plus or minus .01, or in

the present cases, .08 plus or minus .01.  

	The circuit court granted defendants' motions in limine.  The State's appeal followed.

	Prior to his trial, Majors orally moved in limine to exclude the results of his breathalyzer test based upon Morris.  The circuit court granted his motion without an evidentiary hearing.  The State filed a certificate of impairment and a timely notice of

appeal in this case as well.

	I

	Generally, a circuit court's decision to grant a motion in limine will not be reversed absent an abuse of discretion; where, as in the present case, the only issue before the reviewing court

involves a question of law, review is de novo.  People v. Cady, 311 Ill. App. 3d 348, 724 N.E.2d 549 (2000) (Cady).

	The results of chemical tests in cases involving driving under

the influence are admissible only when there is compliance with

section 11-501.2 of the Code and the regulations promulgated

thereunder.  People v. Kilpatrick, 216 Ill. App. 3d 875, 576 N.E.2d 546 (1991) (Kilpatrick).  Section 11-501.2(a)(1) prescribes that chemical tests "to be considered valid *** shall have been performed according to standards promulgated by the Department of

Public Health in consultation with the Department of State Police." 

625 ILCS 5/11-501.2(a)(1) (West 1998).  

	Section 510.100(a) of the Illinois Administrative Code

provides:

"An instrument must be accurate within plus or

minus 0.01 W/V to be certified.  To determine

accuracy of instruments, an inspector shall

perform two analyses on a certified controlled

reference   sample at least once a month at

intervals not to exceed 45 days.  The

inspector   shall record test results of his

certification in the instrument logbook ***. 

The original certification test results will

be retained by the inspector."  77 Ill. Admin.

Code §510.100(a) (1995)

According to the supreme court, the foundational requirements for admission of breathalyzer results include evidence that: (1) the

tests were performed according to the uniform standard adopted by

the Department; (2) the operator administering the tests was

certified by the Department; (3) the machine used was a model

approved by the Department, was tested regularly for accuracy, and

was working properly; (4) 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) the results

appearing on the printout sheet can be identified as the tests

given to the motorist.  People v. Orth, 124 Ill. 2d 326, 530 N.E.2d 210 (1988).

	The principal issue here is whether the machines were properly

certified where the test results were not reported three digits to

the right of the decimal point.  This district has never addressed

this issue; however, the second, third, and fifth districts have

found that the regulations do not require accuracy beyond two

digits.

	In Kilpatrick, the second district considered a nearly identical fact situation.  The circuit court granted defendant's

motion in limine to exclude breathalyzer results where the solution used to test the machine had a recorded value of .101% W/V (weight

of alcohol in the volume of the breath), and the two tests using

that solution produced results of .09 and .09.  The circuit court

concluded that the mathematical result derived from comparing the

two numbers was ".011 or eleven thousandths which is one thousandth

greater than the acceptable margin of error."  Kilpatrick, 216 Ill. App. 3d at 880.  The second district reversed, noting that in

giving the language of the regulation its plain and ordinary

meaning, the acceptable margin of error on a breathalyzer machine was .01.  Moreover, the regulatory scheme did not require accuracy

beyond +.01 to -.01.  The court declined to determine the relative

merit of mathematical theories in determining whether a

breathalyzer machine has been properly certified because "the

regulations do not require accuracy beyond two digits." 

Kilpatrick, 216 Ill. App. 3d at 882.  See also People v. Cady, 311 Ill. App. 3d 348, 724 N.E.2d 549 (3rd Dist. 2000) (Cady).

	Defendants rely on Morris, in which the fifth district, when faced with a nearly identical factual situation, declined to follow

Kilpatrick, and affirmed the grant of defendant's motion in limine to exclude breathalyzer results.  The fifth district did not

expressly overrule Morris, but has since retreated from its holding in that case.  In People v. Dunnigan, 312 Ill. App. 3d 1186, 728 N.E.2d 122 (5th Dist. 2000), after readinghearing the testimony of Etzkorn, the fifth district followed Kilpatrick  and Cady and concluded that the regulations did not require accuracy beyond two digits.  In light of Etzkorn's testimony, the court held that the Sstate met its burden of proving

that the machines were properly certified.

	The present case cannot be distinguished materially from

Kilpatrick, Cady, and Dunnigan; consequently, the circuit court erred in granting defendants' motions in limine.

	Accordingly, for the reasons set forth above, the judgments of

the circuit court of Cook County are reversed and the cause is

remanded for further proceedings.

	Reversed and remanded with directions.

	HOFFMAN and BARTH, JJ., concur.