2019 IL App (2d) 180758 No. 2-18-0758 Opinion filed August 13, 2019 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE CITY OF McHENRY, ) Appeal from the Circuit Court ) of McHenry County. Plaintiff-Appellant, ) ) v. ) No. 17-DT-331 ) STUART A. KLEVEN, ) Honorable ) Joel D. Berg, Defendant-Appellee. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.

OPINION

¶1 Defendant, Stuart A. Kleven, was charged with one count each of driving with a breath- alcohol concentration of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2016)) and driving under the influence of alcohol (id. § 11-501(a)(2)). He moved to suppress the result of the breath test

that he took at the police station. The trial court granted his motion. The City of McHenry, which the McHenry County State’s Attorney authorized to prosecute the case (see id. § 16-102), appeals. We reverse and remand.

¶2 Defendant’s motion relied on the following Illinois Administrative Code provision:

“(a) Prior to obtaining a breath analysis reading from a subject, the [operator] *** shall continuously observe the subject for at least 20 minutes.

2019 IL App (2d) 180758

(1) During the 20 minute observation period the subject shall be deprived of alcohol and foreign substances and shall not have vomited.

(2) If the subject vomits during the observation (deprivation) period, the process shall be started over by having the individual rinse the oral cavity with water.

(3) If the individual continues to vomit, alternative testing shall be considered.” 20 Ill. Adm. Code 1286.310(a) (2004).

¶3 The motion to suppress alleged as follows. On May 17, 2017, police officers stopped defendant’s vehicle and arrested him. In the police station’s booking room, an officer tested his breath-alcohol concentration. However, during the 20-minute observation period, the officer twice left the room. In these absences, defendant could have vomited or placed some substance into his mouth. Because the officer had not conducted the test as required, the result should be suppressed.

¶4 In response, plaintiff alleged as follows. Defendant was taken to the booking room by

Officer Matthew Schmitt. The room had equipment that recorded both images and sound.

According to the video of defendant’s detention, he was tested at 12:30:36 a.m. Thus, the mandatory 20-minute observation period began at 12:10:36. During this period, the video depicted Schmitt leaving the room twice, to go to his squad car in the sally port. The first trip lasted from 12:23:48 until 12:26:21. At 12:26:26, Schmitt asked defendant whether he had vomited, burped, or eaten anything in the past half hour; defendant responded, “no.” Schmitt’s second absence lasted from 12:28:27 though 12:28:50. During this period, defendant sat with his head up in full view of the camera. Plaintiff reasoned that, because the purpose of the rule requiring a 20-minute observation period is to ensure that a person to be tested has not belched, 180759

2019 IL App (2d) 180758 vomited, smoked, or eaten anything in the period preceding the test, and because the video showed that defendant had done none of these things between 12:10:36 and 12:30:36, Schmitt had substantially complied with the 20-minute rule even though he had not directly observed defendant continuously the whole time.

¶5 The trial court held a hearing on defendant’s motion. Defendant introduced the video into evidence, and it was played in court. (We shall recount the video as necessary when we explain our decision.) Defendant put on no further evidence.

¶6 Plaintiff moved for a directed finding, arguing that defendant had failed to present a prima facie case that Schmitt had not substantially complied with the 20-minute rule. According to plaintiff, the video showed that, during both of Schmitt’s absences, defendant had been in full

view of the camera and subject to the sound recording and had not belched, vomited, eaten, or done anything else to call the breath-test result into question. Moreover, upon returning from his first absence, Schmitt had asked defendant whether he had belched, vomited, or eaten in the past half hour, and defendant had said no. Defendant contended that Schmitt had not observed him continuously for 20 minutes and that the video could not substitute for such observation.

¶7 The trial court denied plaintiff’s motion. The court noted that, under People v. Ebert, 401

Ill. App. 3d 958, 960 (2010), the 20-minute rule requires only substantial, not strict, compliance.

Nevertheless, the court reasoned, Schmitt’s absences, for more than two minutes and then for half a minute, failed even this standard. If asking a detainee whether he has belched, vomited, or eaten during the 20-minute observation period and receiving the answer “no” could constitute substantial compliance, the requirement of actually observing the detainee would be negated.

Moreover, relying on the self-report of a person who is presumably impaired is inherently dubious. The court explained, “I honestly *** can’t even tell you sitting here—and I’m stone

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2019 IL App (2d) 180758 sober right now for the record—I can’t tell you whether I’ve belched or anything within the last half hour.”

¶8 The trial court noted next that, although Ebert found substantial compliance based on the defendant’s testimony that he had not done any disqualifying act during the observation period, he had made this statement in court under oath, while he was presumably sober. Also, People v. Chiaravalle, 2014 IL App (4th) 140445, ¶ 9, found substantial compliance even though the officer had his back turned to the defendant “ ‘for minutes at a time.’ ” The trial court noted that

Chiaravalle held that mere hearing is acceptable observation, so that “theoretically, Ray Charles could serve as the observer. How Ray Charles could ever tell us that the person did not put something in their mouth is beyond me.” Noting that Chiaravalle was binding, the trial court distinguished it; Schmitt could neither see nor hear defendant during his absences. In neither

Ebert nor Chiaravalle had the officer left the room altogether; Schmitt had done so twice.

¶9 Plaintiff called Schmitt. He testified as follows. The booking room had “a camera on the back wall facing the entire booking room that [was] audio and visually recorded [sic].” The recording was sometimes “jumpy with the audio,” which did not “exactly match the movement of the video,” but nothing suggested that there were any jumps in the video.

¶ 10 Schmitt testified that, in the booking room, he sat on a stool at a desk with a booking computer, and defendant sat on a stool in front of him and to his right. The room was about 10

feet by 15 feet, and the Breathalyzer was located 1 to 2 feet from defendant. Schmitt began the 20-minute observation period. While Schmitt was in the room, he was either working on the computer or at the Breathalyzer. While sitting at the computer desk, Schmitt could see and hear defendant. While working on the Breathalyzer, Schmitt had his back turned to defendant, but he could hear him.

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¶ 11 Schmitt testified that, twice during the 20-minute observation period, he exited the room

and went to the sally port. Before his first departure, he did not see or hear defendant eat, drink, vomit, or smoke. When Schmitt returned to the booking room, defendant was still sitting on the stool. Schmitt noticed nothing about defendant that indicated that he vomited, ate, or drank

during Schmitt’s absence. Schmitt asked defendant whether he had vomited, burped, or eaten in the preceding half hour; defendant said no.

¶ 12 Schmitt testified that, between returning the first time and leaving the second time, he observed defendant continuously, although his back was turned a couple of times while he

worked on the Breathalyzer. During this period, Schmitt did not see or hear defendant vomit, eat, or drink. On returning the second time, he saw that defendant was still sitting on the stool.

Nothing indicated that he vomited, smoked, ate, or drank during Schmitt’s absence.

¶ 13 Plaintiff rested. The court granted defendant’s motion, explaining as follows. Schmitt had left the booking room twice, once for 2½ minutes and once for half a minute. Although only substantial compliance was required, “leaving the room not once but twice for in total over three minutes is nobody’s definition of substantial compliance.” The court continued:

“[T]he problem that we have is we are relying on self-reporting for someone who

was never told to pay attention to whether they burped, hiccuped [sic], or vomited *** or did anything else, and I’m relying on a video that is not a straight on video of the guy’s face. It’s a video from the top looking down. You can’t even see his mouth the vast majority of the time. [So], I can’t even allow the video to substitute for the 20-minute

observation period because I can’t clearly see what’s happening with his mouth while the officer is gone from the room.

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[The] 20-minute observation period means an officer, under all of the existing

case law, has to at least be in the room for the 20 minutes. That wasn’t done here. And so the foundation has not been laid.”

¶ 14 In an offer of proof, Schmitt testified that the result of defendant’s breath test was 0.168, above the legal limit. After the court granted defendant’s motion and barred the introduction of the breath-test result, plaintiff timely appealed.

¶ 15 On appeal, plaintiff contends that the court erred in holding that Schmitt had not

substantially complied with the 20-minute-observation rule. Plaintiff acknowledges that the video showed that Schmitt left the booking room twice and thus defendant was out of his sight and hearing for a total of more than 2 of the 20 minutes. Plaintiff argues, however, that case law establishes that Schmitt need not have had defendant under his direct observation for the entire

20-minute period and that the video provided satisfactory evidence that, in Schmitt’s absence, defendant did not vomit or eat or drink anything. Plaintiff reasons that, because it demonstrated that the purposes of the 20-minute rule were fulfilled, the breath-test result was not rendered unreliable by any irregularities that the rule was intended to prevent. Therefore, plaintiff concludes, it laid a sufficient foundation for the admission of the result of the breath test.

¶ 16 Defendant has not filed an appellee’s brief, but we may decide the merits of this appeal.

See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

¶ 17 Whether plaintiff laid a sufficient foundation for the breath-test result is a question of law, which we review de novo. Ebert, 401 Ill. App. 3d at 960-61. The regulation at issue here requires substantial, not strict, compliance. Id.

¶ 18 We turn to the case law applying the 20-minute rule. In People v. Bergman, 253 Ill. App.

3d 369 (1993), the officer twice left the room, for one minute or less each time, and moved

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2019 IL App (2d) 180758 around the room at other times. However, he kept the defendant within his hearing and his line of sight the whole time. The appellate court agreed with the trial court that the officer had substantially complied with the rule. Id. at 374. The court noted that in In re Summary

Suspension of Driver’s License of Ramos, 155 Ill. App. 3d 374, 376 (1987), the court held that the officer substantially complied with the rule even though he had spent part of the period working on the breath machine; the officer had kept the defendant within his peripheral vision and had observed him directly from time to time. Bergman, 253 Ill. App. 3d at 373-74.

¶ 19 The Bergman court explained that “[t]he purpose of the 20-minute observation period is to ensure that the defendant does not regurgitate, vomit, smoke, or ingest anything which will render the breathalyzer test results unreliable.” Id. at 374. The officer had substantially complied with the rule, because he had kept the defendant under observation sufficiently to know that he had not done any of the problematic acts. Id. at 374-75.

¶ 20 In Ebert, the officer testified that, after an initial test that was discontinued because the machine detected “ ‘mouth alcohol,’ ” the defendant rinsed his mouth and waited to retake the test. Ebert, 401 Ill. App. 3d at 960. During the intervening period, the officer observed the defendant. The officer testified that he did not see the defendant put anything into his mouth, regurgitate, or vomit but that it was possible that the defendant belched. He did not recall

whether the defendant used the restroom, but he testified that when a defendant did so the door was usually kept open, in order that he could still be observed. The defendant testified that

during the observation period he did not put anything into his mouth, regurgitate, vomit, or belch. He also testified that he used the restroom and was not accompanied there. Id. The trial court granted the defendant’s motion in limine to suppress the result of the second breath test.

Id. at 959-60.

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¶ 21 This court reversed and remanded. We explained that the purpose of the 20-minute rule and the other regulations is to ensure that a breath test is conducted “in a manner that produces reliable results.” Id. at 965. Thus, to ascertain whether there has been substantial compliance

with the 20-minute rule, a court must “determine whether *** the deviation compromised the integrity of the testing process.” Id. We concluded that the answer in that case was no, because, whatever the imperfections in the officer’s observation of the defendant, the defendant’s own

testimony established that he had done nothing to impair the test’s accuracy. Id. Thus, the evidence at the hearing on the defendant’s motion in limine established that “the breath test result was no less reliable than it would have been if [the officer] had observed [the] defendant not doing those things.” Id.

¶ 22 In Chiaravalle, the officer testified that he initially instructed the defendant not to do

anything that could bring alcohol to his mouth, such as vomiting. The officer was with the defendant for the whole 20-minute observation period but spent much of the time with his back to him. Chiaravalle, 2014 IL App (4th) 140445, ¶¶ 7, 28. The trial court granted the defendant’s motion in limine to exclude the result of the breath test, but the appellate court reversed. Id.

¶¶ 1-2.

¶ 23 The court explained that the requirement that the officer “ ‘continuously observe the subject’ ” does not imply a requirement of “continuous visual observation,” as there are other ways to monitor the defendant to ensure that he does not compromise the test. (Emphasis

omitted.) Id. ¶¶ 28-30; see 20 Ill. Adm. Code 1286.310(a) (2004). The court cautioned that the officer “must still be in close enough proximity to use his other senses to detect whether the defendant has ingested a foreign substance or vomited.” Chiaravalle, 2014 IL App (4th)

140445, ¶ 34.

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¶ 24 The court noted that, although the defendant was out of the officer’s line of sight for much of the time, the officer had told the defendant not to bring alcohol to his mouth, belch, or vomit; he had turned around from time to time to look at the defendant; and he had heard or seen

no evidence of vomiting or regurgitation. Moreover, after spending the first 10 minutes of the observation period on his paperwork, the officer conversed with the defendant the rest of the time. Id. ¶ 35. Thus, he had substantially complied with the 20-minute rule. Id. ¶ 36.

¶ 25 We return to the present case. Schmitt was completely absent from the booking room for more than two minutes. During his absences, he could not see, hear, or otherwise observe

defendant. Although the audiovisual equipment recorded defendant during these absences, Schmitt did not view or listen to any of the recording before he tested defendant’s breath. Thus, it strains common usage to conclude that, during the 20-minute observation period, Schmitt

“continuously observe[d]” defendant. 20 Ill. Adm. Code 1286.310(a) (2004). Although

substantial compliance does not require uninterrupted visual observation, we cannot stretch the rule’s language to cover the situation here. For more than two minutes, Schmitt failed to observe

defendant at all—visually, aurally, or otherwise. Schmitt was in the sally port, out of range of defendant. Thus, to paraphrase the trial court, Schmitt did not meet even the “Ray Charles” standard of Chiaravalle. Moreover, his complete inability to observe defendant in any way, for a significant period, distinguishes this case from Bergman and Ramos.

¶ 26 Were we to rely solely on Schmitt’s conduct, we could not find that he substantially complied with the 20-minute rule. However, under Ebert, a court may still find substantial compliance even if an officer completely failed to observe the defendant for a significant period.

This depends on the existence of evidence that compensates for the officer’s inability to say whether, in a given period, the defendant did something that the regulation recognizes as inimical

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2019 IL App (2d) 180758 to reliance on the breath-test result. In Ebert, such evidence came in the form of the defendant’s

testimony that, during the 20-minute observation period, he did not put anything into his mouth, regurgitate, vomit, or belch. Ebert, 401 Ill. App. 3d at 960. Based on this evidence, we held that the officer’s failure to observe the defendant for part of the 20-minute period was not crucial. ^[1]

¶ 27 Although in Ebert we stated that the officer had substantially complied with the rule, it

would have been more precise to say that the lack of substantial compliance was harmless, because evidence showed that the officer’s failure to keep the defendant under continuous

observation did not render the test result unreliable. We did not emphasize the degree of the officer’s fidelity to the regulation’s requirements, but instead considered whether his deviation affected “the integrity of the testing process.” Id. at 965. Clearly, we spoke not to compliance but to prejudice. We held that the failure to adhere to the regulation did not affect the integrity of