Breath Test Problems in a Will County DUI Case

The rules behind the number

The Illinois State Police write the rules for evidential breath testing. They sit in Part 1286 of Title 20 of the Illinois Administrative Code. Illinois law says a chemical test is valid only if it was done according to the State Police standards by a person who holds a permit for it (625 ILCS 5/11-501.2(a)). That makes the rules more than a suggestion. If the State cannot show the rules were followed, the weight of the number is open to argument.

The three places most breath test cases get tested are the observation period, the machine and the operator.

The 20 minute observation period

Before a reading, the breath analysis operator or another employee of the agency must watch you continuously for at least 20 minutes (20 Ill. Adm. Code 1286.310(a)). During that time you must not have alcohol or any foreign substance in your mouth, and you must not vomit. If you vomit, the clock starts over after you rinse your mouth with water.

The watch is the rule's built in check on what is in your mouth before the machine takes a sample, so a skipped or shortened watch is a real issue. Questions Jeff asks:

• Did the watch really last 20 minutes without a break?
• Was the person watching you also doing paperwork, driving or talking on a radio?
• Did you burp, vomit, chew or take anything into your mouth, and was the timer restarted?
• Do the times on the printout, the report and the video agree?

The machine and its checks

Only approved instruments may be used. The rule lists the Intoximeters EC/IR II and the Alco-Sensor VXL with a printer. The older RBT IV stopped being approved on August 1, 2022 (20 Ill. Adm. Code 1286.210).

Accuracy checks have set limits:

• A check is required before a machine goes into use, and after a breakdown is repaired.
• A check is required at least once every 62 days (1286.230).
• Each check has at least two tests of a reference sample. The machine must read the reference within 10 percent of its value, adjusted for environmental factors (1286.220 and 1286.230).
• The results must be recorded in the logbook, the machine's memory or a central repository.

Jeff asks for the logbook and check records for the machine used in your case. A gap in the 62 day schedule, a failed check or a repair without a new check is something to bring up.

The operator and the test itself

A breath analysis operator must be licensed. To get the license a person takes an approved course of at least 8 hours, passes a written test with a score of at least 70 percent, and passes a hands on test. The license lasts 3 years unless renewed (1286.100). Jeff checks whether the license was current on the test date.

The test has its own rules:

• A breath test is one reading from the instrument. A valid reading has at least one air blank, one subject test and no breakdown message (1286.310(c)).
• Messages like "insufficient sample" or "refusal" are not breakdowns under the rule. They mean the machine says you did not complete the test. These can lead to a refusal suspension, so what happened in the room is important.
• The reading is the first two digits after the decimal point, even if the printout shows a third (1286.210).

For the refusal side, see breath test refusal.

What happens next

1. Keep the printout and every paper from the station. Write down what time you think the watch began and ended.
2. Tell Jeff whether you burped, vomited, took medicine or had anything in your mouth after you were stopped.
3. Jeff asks for the instrument logbook, the operator's license record and the arrest report.
4. The suspension clock runs at the same time. The petition to rescind is due within 90 days of notice, and the suspension starts on day 46.
5. Jeff compares the records with the printout to see which points are worth raising.

How Jeff helps

• Requests the machine records, operator license and video that show how your test was run.
• Checks the times against the 20 minute rule and the 62 day schedule.
• Asks about anything that happened to you before the test, such as vomiting or medical issues.
• Explains how the breath result affects both the criminal case and the license suspension.
• Says plainly when a records problem does not help the case.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.