Chicago DUI Breath Test Information

After a police officer arrests a suspect for DUI, they will most likely transport them back to the police station and ask them to submit to a blood, breath or urine test. In Illinois, a suspect cannot choose which test to submit to, the police have the choice.

The most common testing method is the breath test. Law enforcement prefers this test because it is convenient, the simplest to administer, and the results are available immediately.

Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect.

We regularly update our case law database and receive weekly updates regarding recent court decisions that affect Chicago, Illinois DUI defense. In Illinois DUI cases, before a police requested breath, blood, or urine test can be admitted into evidence, the State must establish that the test was performed in compliance with the applicable Illinois State Police Rules and Regulations. 20 Ill. Admin. Code 1286; 625 ILCS 5/11-501.2.

A vital part of the attorney’s inquiry will be to determine whether there has been compliance with applicable rules and regulations pertaining to a breath test. Failure to comply with section 625 ILCS 5/11-501.2 may make the results of chemical tests inadmissible in court. People v. Emrich, 113 Ill. 2d 343, 101 Ill. Dec. 632, 498 N.E.2d 1140 (1986).

Requirements for Evidential Breath Testing:

Some foundational requirements for evidential breath testing in Illinois include but are not limited to the following:

1. The breath testing device must be approved by the Illinois State Police:
   • Pursuant to 625 ILCS 5/11-501.2, the Illinois State Police are granted the authority to approve all evidential breath testing devices used in Illinois for DUI offenses. Those approved devices include but are not limited to:
     • Intoximeters EC-IR II and the Intoxilyzer 8000
2. The operator of the device must be licensed at the time of testing:
   • Pursuant to 625 ILCS 5/11-501.2, all breath operators must be licensed by the Illinois State Police in order to operate breath alcohol machines
3. The operator of the device must be competent:
   • This is because the device requires not only the correct use to obtain an accurate result, but also a knowledgeable operator to observe a test
4. The breath device must be certified as accurate:
   • The accuracy of all approved evidentiary instruments used to obtain a breath analysis shall be checked by a BAT (Breath Alcohol Technician)
   • Accuracy checks are required:
     • Prior to being placed in operation;
     • After a breakdown has been repaired;
     • When an approved evidentiary instrument fails to quantitate the two required accuracy checks within plus or minus 0.01 BrAC.
5. A breath device logbook and certification records must have been kept:
   • Records of the accuracy and certification of the machine must be shown by the State in order to use the results of the test in a DUI prosecution
6. A suspect must have been observed for a minimum of 20 minutes prior to a breath sample being obtained
   • Compliance with the 20 minute observation period is mandatory and the admissibility of alcohol test results will be denied for failure to comply
   • The purpose of the 20 minute observation period is to avoid inaccurate breath

Similar rules are set out in the Administrative Code for blood and urine testing. The attorneys at Suhre & Associates regularly request copies of all the pertinent calibration records and review them for compliance with the Administrative Code.

Some Common Breath Test Defenses:

• Insufficient or broken observation period – no continuous observation for entire 20 minutes before first breath sample.
• During those 20 minutes before the test, you burp, belch or have slight regurgitation of gas that is relatively quiet.
• Vomiting, belching within 20 minutes of test – no rinsing of mouth, or inadequate waiting period before retest.
• Certain medical conditions/health issues make the breath test inherently unreliable. They include:

1. gastric reflux, hiatal hernia or intestinal problem (e.g. Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest;
2. dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample);
3. or respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).

• Your behavior or actions do not match test results.
• The breath test room or circuitry has a problem – Radio Frequency Interference from a cell phone, officer’s radio, copy machine or other equipment with surge capabilities. These situations may cause the machine to give artificially high reading. Other conditions that can affect the result are smoking near the machine, shared power supply with heater or other appliance – the machines must be on a dedicated “clean” electrical circuit. Recently painted walls or trim can also interfere with the test.
• You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative tendencies, causing chemical interference/falsely elevated result.
• Air bag defenses – “the Tyndall effect” – diffusion of light; propellant exposure; cut lips; lung and airway irritation and fluid build-up from caustic gas propellant.
• Video tape refutes the high reading, supports sobriety.
• High test result from a urine screen, yet you never urinate for three to four hours or more – physiological impossibility.
• Unintentional alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
• Something in mouth containing alcohol (e.g. Breath Drops with SD alcohol).
• Something in mouth, that contains interfering or contaminating substance (e.g. Skoal snuff – wintergreen, Altoids).
• Officer not trained or marginally trained in accordance with the standards of the Illinois Administrative Code.
• Officer fails to follow manual or training protocol.
• Failure to properly calibrate or maintain the machine.
• Police report supports sobriety, or lack of investigation of alternative causes.
• Rising blood alcohol level showing time of driving BAC would have been lower than time of testing.
• Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)
• Breath/blood ratio (2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have abnormally low blood/breath conversion ratio through testing and expert.
• You have blowing pattern irregularity.
• You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the “auto-brewery” syndrome).
• You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.
• Officer gives Summary Suspension warnings, but then goes too far by threatening dire consequences for which there is no factual basis or misstates consequences regarding possible license suspension.
• You can prove sufficient alcohol was consumed during driving, after driving ended or before police arrived.
• Officer gets fired, indicted, retires, goes on military leave, or moves away.
• Breath test operator is unlicensed
• Breath test operator’s license is expired
• Breath test device not approved

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