A frequent issue I run into during statutory summary suspension hearings is the State's attempt to introduce proof that a portable breath testing device's breath result on a client. While PBTs are not generally admissible as to the actual breath result during a SSS hearing, the State frequently attempts to introduce such information. Practically the PBT is another breath testing device that is subject to various statutes as well as its own operating handbook.
The Illinois legislature has enacted 20 Illinois Administrative Code Title 20 1286.200-260. Those provisions describe what accuracy actions must be undertaken by not only the operator but also by the person who is charged with ensuring the device remains accurate. Aside from the statute, each device has an operator's handbook that specifies what procedure must be used witih regards to the individual device. The Code requires accuracy testing of each device no longer than every 92 days (1286.250). This typically entails introducing a known test standard containing ethanol into the machine and the machine's result reading within 10% of the standard's alcohol concentration. In other words, if a standard is .08 the machine could be considered accurate if its test result reads between .072 and .088. The person performing the accuracy test must have obtained a BAT certificate.
Recently, I was conducting a SSS hearing wherein the State repeatedly attempted to introduce evidence of my client's PBT reading. I objected on failure to lay a foundation grounds. The State called the officer who was certified to conduct the test. He testified that he had read and relied upon the operator's handbook. I had obtained the handbook. It required the device (AlcoSensor FST) to be certified no less than every 31 days. The problem for the State was his test of the device occurred 84 days after the earlier test. This, of course, was not in compliance with the required testing procedures stated in the handbook. The judge agreed with my objection and did not allow the State to introduce the breath reading of my client.
Always obtain the handbook for the PBT device used. I do this two separate ways in each case. First I serve the State's Attorney with a Notice to Produce the handbook. Secondly, I file a motion for discovery specifically requesting this information. This is a simple way to prepare for the event that is described above.
