Until recently, defense attorneys, prosecutors and judges alike have needed a working knowledge of the Illinois Department of Professional Health (IDPH) Rules governing breath, blood and urine collection procedures when dealing with DUI cases. These rules, however, have been permanently replaced and superceded by the Illinois State Police (ISP) Rules for the "Testing of Breath, Blood and Urine for Alcohol, Other Drugs, and Intoxicating Compounds," adopted by the Joint Committee on Administrative Regulations which became effective on February 2, 2001. While many of the ISP Rules are identical to the previously controlling IDPH Rules, there are substantive changes. A summary of the significant differences follows:
Section 1286.10: Definitions
In Section 1286.10, the ISP Rules define "Blood Alcohol Concentration" or "BAC" as the level of grams of alcohol per 100 milliliters of whole blood. The ISP Rules use the new term "BrAC" to describe the blood alcohol concentration in breath. The ISP Rules define "BrAC" as "grams of alcohol per 210 liters of breath," which is consistent with the statutory definition in 625 ILCS 5/11-501.2 (a) (5).
Further, Section 1286.10 clarifies how to properly read the breath / alcohol concentration as displayed or printed by an instrument or device. The ISP Rules provide that the "Breath Analysis Reading" means the "numeric value of the first two digits to the right of the decimal point of a BrAC analysis as displayed, printed, or recorded by an instrument." Thus only the first two numbers to the right of the decimal point need be read to establish a "BrAC" level, e.g., ".08" and not ".081."
Section 1286.10 also defines a "Malfunction" as the "failure of an instrument to function properly."
Section 1286.10 also defines, for the first time, an equation for serum to whole blood. The conversion formula is: "the blood serum or blood plasma alcohol con-centration result will be divided by 1.18 to obtain a whole blood equivalent."
"Whole blood equivalent" is defined as the "conversion of a blood serum or blood plasma alcohol concentration to an approximate BAC."
Section 1286.20: Grievances
Section 1286.20 provides that a person who wishes to contest the ISP Rules on the licensing of Breath Analysis Operators, the authorization of Breath Analysis Tech-nicians, the accreditation of Breath Analysis Instructors, or any laboratory certification, must follow the general hearing procedures outlined in 20 Ill. Adm. Code 1200, i.e., such contests may not be brought initially in the trial court.
Section 1286.30: Additional Testing
Section 1286.30 provides that persons arrested for DUI who wish to have their blood/alcohol level independently tested pursuant to 625 ILCS 5/11-501.2(a)(3), may do so only after posting bond.
Section 1286.40: Conversion of a Blood Serum or Blood Plasma Alcohol Concentration to a Whole Blood Equivalent
When hospital laboratory results of a patient’s blood contains an ethanol (alcohol) figure, it usually has been derived from an analysis of the patient’s blood serum or blood plasma. Insofar as the DUI offenses are based upon alcohol concentrations in the whole blood, it is necessary to convert the serum or plasma figure to a whole blood figure. Section 1286.40 provides a formula for the conversion of blood serum or blood plasma alcohol concentrations to a whole blood equivalent. The formula states that "the blood serum or blood plasma alcohol concentration result will be divided by 1.18 to obtain a whole blood equivalent."
Section 1286.60: Department Notifications
Section 1286.60 requires individual police agencies to notify the Illinois State Police Department if (1) an agency’s evidentiary instrument needs service; or (2) if the agency receives an approved evidentiary instrument from an entity other than the manufacturer. The second provision is designed to track evidentiary instruments.
Section 1286.70: Maintenance of Records for Approved Evidentiary Instruments
Section 1286.70 governs the keeping of records for each evidentiary instrument. As such, the police agency is required to keep a logbook, which contains records of accuracy tests. Records removed from the internal memory of an instrument are to be "downloaded" into a "central repository." This section also requires that these removed records be kept for five years from the date of download. Police departments must consult the Illinois State Police for authority to download to the central repository, and may do so only upon receiving written permission.
Section 1286.90: Reporting Laboratory Results
Section 1286.90 mandates that laboratories issuing blood or urine analysis reports send them only to the submitting police agency.
Section 1286.100: Licensing Breath Analysis Operators
Section 1286.100 governs the licensing of Breath Analysis Operators, a procedure which is generally unchanged by the new ISP Rules. Those licensed under the IDPH Rules retain their licenses under the ISP Rules until their IDPH licenses expire. A license issued under the ISP Rules is valid for three years.
Section 1286.110: Renewal of Breath Analysis Operator Licenses
Section 1286.110 governs the procedures required to renew a Breath Analysis Operator license under the ISP Rules. These requirements are substantially similar to the IDPH Rules, but are not as numerous. The most important change in the ISP Rules states that a BAO license that has been either revoked or expired for more than one year cannot be renewed; to become licensed again, the person must complete the initial licensing procedures under section 1286.100.
Section 1286.120: Revocation and Denial of a Breath Analysis Operator License
Section 1286.120 governs the revocation and denial of a Breath Analysis Operator license. This section contains provisions similar to those found in the IDPH Rules, but has some additions. Some of the new bases for revocation or denial of a Breath Analysis Operator license include the failure to notify the Illinois State Police that the licensee has changed his or her name, or that the licensee is no longer employed by the police agency stated on the license.
Section 1286.130: Authorization of Breath Analysis Technicians
Section 1286.130 governs the authorization of Breath Analysis Technicians. Persons certified as technicians under the IDPH Rules are authorized as technicians under the ISP Rules until December 31, 2003, or until their IDPH license expires. Under the ISP Rules, a new technician candidate must pass a proficiency examination which includes an under-standing of the maintenance, calibration and repair procedures for all approved breath analysis instruments.
Section 1286.170: Certification of Laboratories and Laboratory Technicians
Section 1286.170 governs the certification of laboratories and laboratory technicians. Under this section, laboratories and their technicians certified by the IDPH are certified for one year from December 31, 2000.
Section 1286.200: Equipment Approval and Accuracy
Section 1286.200 governs the approval and accuracy of breath-testing instruments. As with the IDPH Rules, the ISP Rules establish a presumption as to an instrument’s accuracy where it has been checked within a certain time period. Section 1286.200, however, extends this time period from once a month, not to exceed 45 days, to a bi-monthly period, i.e., up to 62 days. The section also adds a rebuttable presumption that the instrument used to test the offender was accurate when four specific conditions exist: 1) the instrument was approved under 1286.200 at the time of the defendant’s test; 2) the instrument was within the accuracy tolerance range according to the last accuracy test or verification (whichever is later) prior to the defendant’s test; 3) there has been no accuracy test after the defendant’s test or the accuracy test after the defendant’s test was within the accuracy tolerance range; and 4) the relevant accuracy tests have been performed in a timely manner, i.e. within 62 days of the prior accuracy test.
Furthermore, Section 1286.200 provides that the failure to certify an instrument shall not effect the admissibility of the BrAC reading but, rather, only the weight to be afforded the result.
Section 1286.210: Evidentiary Instrument Approval
Section 1286.210 lists those instruments which are approved for use to obtain a BrAC level. The list of approved instruments under this section is the same as those listed under the IDPH Rules.
Section 1286.220: Verifying Approved Evidentiary Instruments
Section 1286.220 governs the verification of approved instruments. Each instrument previously approved under the IDPH Rules is deemed to be verified under the ISP Rules until 1) either the instrument breaks down; or 2) The instrument fails to quantitate the reference sample within plus or minus 0.01 BrAC the two required times. Accuracy is not required beyond the second digit to the right of the decimal point.
Section 1286.230: Checking Approved Evidentiary Instruments for Accuracy
Section 1286.230 governs the checking of approved evidentiary instruments for accuracy. Those evidentiary instruments certified accurate on December 31, 2000 by the IDPH Rules are deemed accurate until February 28, 2001.
Section 1286.240: Preliminary Breath Testing Approval
Section 1286.240 governs the approval of Preliminary Breath Test (PBT) devices. The ISP Rules have substantially increased the regulation of PBTs. PBT instruments must now display the breath analysis reading. "Display" does not mean a written or printed result. Breath analysis readings consist of only the first two digits to the right of the decimal point. PBTs must be checked for accuracy pursuant to section 1286.250.
Section 1286.250: Checking Approved Preliminary Breath Tests for Accuracy
Section 1286.250 for the first time requires PBTs to be checked for accuracy. PBTs shall be checked for accuracy by a technician or an individual specially trained to perform PBT accuracy checks. The ISP Rules do not define what constitutes a "specially trained individual." PBT accuracy checks must be performed at least every 93 days. To be certified as accurate, the PBT instrument must quantitate a known reference sample within plus or minus 0.01 BrAC. Breath analysis readings consist of only the first two digits to the right of the decimal point.
Section 1286.310: Approved Evidentiary Instrument Operation
Section 1286.310 outlines the procedure to be utilized in obtaining a breath sample from a subject. Significantly, the Section provides that the Breath Analysis Operator need follow only those steps "programmed into the instrument." This is a departure from the IDPH Rules that required an Operator to comply with the manufacturer’s operating procedures.
Section 1286.310 also states that messages such as "refusal," "insufficient sample," and "inadequate sample," are not breakdowns or malfunctions. Rather, these messages "indicate the subject’s failure to meet the minimum requirements of a complete and valid breath analysis."
Section 1286.320: Withdrawal of Blood for Chemical Analysis of Alcohol, Drugs, or Intoxicating Compounds
This section specifically delineates the procedure to be used to obtain a blood sample from a subject for a DUI kit provided by the Illinois State Police to determine alcohol concentration, the presence of a drug or drugs, or intoxicating compounds.
Section 1286.330: Urine Collection for Determining the Presence of Drugs or Intoxicating Compounds Other than Alcohol
Section 1286.330 governs the collection of urine for determining the presence of drugs or intoxicating compounds other than alcohol. The ISP Rules have created substantive changes in this area. Under Section 1286.330, a police agency is now allowed to collect a urine sample at the police department so long as the sample is provided in the presence of (1) the arresting officer; (2) another law enforcement officer; or (3) an agency employee who can "authenticate the sample." The Section does specifically require that the collection of the urine sample be done in such a way as to "preserve the dignity of the individual." Toward this end it mandates that the officer or agency employee collecting the sample be of the same sex as the subject providing the sample.
Section 1286.340: Urine Collection for Determining the Concentration of Urine Alcohol
Section 1286.340 governs the collection of a urine sample for the determination of the alcohol level in a suspect’s system. The ISP Rules clearly state that this method of determining the alcohol concentration is not preferred. The police officer should have a well-documented reason for using urine to determine alcohol concentration and not collecting/using blood or breath samples to determine a suspect’s alcohol level.
Section 1286.350: Operation of Preliminary Breath Tests
Section 1286.350, for the first time, defines the required procedure to be used by police officers in determining a subject’s BrAC with a PBT, and further provides that only a pass/fail result is admissible where PBT results are otherwise admissible at hearing. To be valid, PBTs must 1) be performed according to an operational procedure programmed into the device; and 2) consist only of one subject breath test reading. There is no longer a requirement that the officer perform two complete tests as recommended by the manufacture’s guidelines for the result to be admissible.
While the foregoing survey of the newly promulgated ISP Rules highlights departures from the IDPH Rules, it certainly is not intended as an exhaustive list of changes. Only time and practice will disclose the full extent of the changes, which, of course, will bring about challenges to and arguments over the interpretation of various components of the ISP Rules.
Roberta W. O’Leary is Chief Deputy of the Misdemeanor and Traffic Divisions for the DuPage County State’s Attorney’s Office. She received her Undergraduate Degree from Indiana University in 1985 and her Law Degree from The John Marshall School of Law in 1988.