Getting Your License Back – Challenging Breath Tests

Although there are serious criminal consequences of being charged with driving under the influence of alcohol, often the most punitive effect is losing your license. In Illinois this happens before you have either been convicted or acquitted of the offense of DUI. This method of losing your license is called a statutory summary suspension. and you have a very limited time to do something about it. Depending on the facts of your case, you may need to file a petition challenging the suspension. This procedure is called a Petition to Rescind Statutory Summary Suspension. For more on this see our Post Getting Your License Back – Challenging an Improper Traffic Stop.

If you consented to a preliminary breath test and/or an evidentiary breath test, one of the several grounds for challenging the statutory summary suspension is that the breath alcohol concentration (BAC or BrAC) test was not conducted in accordance with Illinois State Police (ISP) standards and did not result in a BAC of .08 or more.

At this stage of the DUI process, the procedure is civil, not criminal, which among other things, means that you have the burden of proof. However, if you can provide evidence of any circumstance which tends to cast doubt on the test’s accuracy, you make what is called a prima facie case, and the burden then shifts to the State to lay an adequate foundation for the admission of the test or tests into evidence.

Providing evidence which casts doubt on the test accuracy can take many forms. The simplest form is based on your testimony. If you can honestly testify that at the time of your driving prior to the arrest, you were not intoxicated, did not violate any traffic laws, and were not doing anything unusual, you havemade your prima facie case and the burden of proof shifts to the State.

The State must then produce evidence to lay a foundation for the admission of the breath tests. Without this foundation, the court will not consider the results of the breath test(s) in deciding whether or not to rescind the statutory summary suspension. Consequently, it is important that attorneys be alert to whether the State is laying an adequate foundation.

The State must present testimony for the foundation of an evidentiary breath test including (1) that the test was performed according to standards adopted by the ISP, (2) that the operator who conducted the test was certified to so by the ISP, (3) that the machine used was a model approved by the ISP (20 Ill Adm Code 1286.200), (4) was regularly (within 62 days prior to and after the arrest) tested for accuracy (20 Ill. Adm. Code 1286.230), (5) was working properly, (6) that the motorist was observed for 20 minutes before the test and did not smoke, regurgitate, drink, or ingest any foreign substance (20 Ill. Adm. Code 1286.310), (7) that the motorist was warned about the consequences of taking or refusing to take the test, and (8) that the results appearing on the machine’s print-out can be identified as the test given to the motorist.

Another basis for challenging the statutory summary suspension is that the officer did not have reasonable grounds to believe that you were intoxicated while driving. If the State wishes to use the Preliminary Breath Test (PBT) results to show the officer had a reasonable belief that you were under the influence of alcohol while driving, the State must lay a foundation for the PBT result. That foundation requires testimony (1) that the PBT used is an approved model (20 Ill. Adm. Code 1286.240), (2) that the PBT was checked for accuracy within 93 days before and after the arrest (20 Ill Adm. Code 1286.250), (3) that the machine was correctly used (20 Ill. Adm. Code 1286.260); and (4) that you gaveconsent to the PBT after the officer’s request (you may refuse the test.).

All of this requires that the State produce a live and qualified witness to lay the foundation for the results of the breath test(s) to be used against your testimony that you were not impaired, but that you were in fact sober. The law allows the court to conduct the Rescission hearing based upon the “review” of the officer’s sworn report which normally contains the results of the breath test(s). Either the State or the Defendant may subpoena the officer. If the arresting officer does not appear or testify, or is unable to testify as to the required foundation for other reasons, your attorney should object to the test results coming in as evidence. Even if the officer’s sworn report identifies the results of the test, it is highly unlikely that it will contain all, if any, of the foundation evidence the State must produce for the court to consider the tests as evidence against you.