People v. Carpenter

Decision Date04 September 2008
Docket NumberNo. 2-07-0277.,2-07-0277.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Theodore CARPENTER, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Gregory L. Slovacek, State's Attorney Appellate Prosecutor, Elgin, IL, for Appellant.

Donald J. Ramsell, Ramsell & Associates, LLC, Wheaton, IL, for Appellee.

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 ECIR 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 Easum, 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

Section 11-501.2 of the Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2006)) governs the admissibility of breath test results in DUI prosecutions. It states that the Director of State Police is authorized to certify the accuracy of breath testing equipment and to prescribe regulations as necessary to implement the section. See 625 ILCS 5/11-501.2 (West 2006). The State's argument is premised on a particular regulation, section 1286.210 of Title 20 of the Administrative Code, which contains a list of the approved instruments for obtaining breath analysis readings. Subsection (a) of section 1286.210 lists four instruments that have been approved by the Department of State Police, and this list is posted on the Illinois State Police Web site. Besides the approved list, subsection (c) allows the Department of State Police to temporarily approve additional breath test devices, such as the one used in this case, the EC-IR II device. It is subsection (c) that is at issue here, and we set it forth in its entirety:

"(c) The Department may temporarily approve additional evidential instrumentation from NHTSA's list after conducting a program suitability evaluation. The Department shall maintain a list of evidentiary instruments temporarily approved for breath testing in addition to those provided in subsection (a). Evidentiary instruments may be temporarily approved for a maximum period of 18 months. The list of temporarily approved evidentiary instruments, if any, shall be available to the public." (Emphasis added.) 20 Ill. Adm.Code § 1286.210(c), amended at 31 Ill. Reg. 7305, eff. May 1, 2007.

The crux of this case is what is meant by the language "available to the public." According to the State, the trial court erred by interpreting this phrase in such a "rigid and narrow" and "hyper technical" fashion, and there is no requirement that notice be posted on the Illinois State Police Web site. Naturally, defendant agrees with the trial court that the Department failed to make the temporary approval of the EC-IR II device "available to the public."

"Administrative rules and regulations have the force of law and must be construed under the same standards that govern the construction of statutes." People v. Wilhelm, 346 Ill.App.3d 206, 208, 281 Ill.Dec. 411, 803 N.E.2d 1032 (2004). The primary objective of interpreting a regulation is to ascertain and give effect to the drafters' intent. Wilhelm, 346 Ill.App.3d at 208, 281 Ill.Dec. 411, 803 N.E.2d 1032. The most reliable indicator of regulatory intent is the language of the regulation itself (People v. Hanna, 207 Ill.2d 486, 497-98, 279 Ill.Dec. 618, 800 N.E.2d 1201 (2003)), and clear and...

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