City and ZRFM Prevail in Case Defining DUI LawAuthor: Kevin A. Chrzanowski
September 17, 2019
In a recent opinion issued in City of McHenry v. Kleven, the Second District Appellate Court held that a police officer’s failure to continuously observe the defendant prior to submission of a breathalyzer test did not require exclusion of the result from admission into evidence.
The defendant was arrested for driving under the influence of alcohol and transported to the police department for processing. During the 20-minute observation period, the defendant was seated on a stool facing a camera located in the corner of the processing room. The camera was facing down at the defendant and recorded, both visually and audibly, the defendant during the entire observation period. During the observation period, the officer left the booking room on two separate occasions for approximately 2½ minutes and 30 seconds. At the end of the observation period, the defendant provided a breathalyzer sample disclosing a breath alcohol concentration of .168. The trial court found that the officer failed to comply with the 20-minute observation requirement of the Illinois Administrate Code and granted the defendant’s motion to bar the introduction of the breathalyzer result into evidence.
On appeal, the Second District Appellate Court was asked to determine whether an officer’s failure to continuously observe a defendant during the observation period required that the breathalyzer result be barred from admission into evidence, where the booking room video showed that the defendant did not vomit or place a foreign substance into his mouth during the lapses in observation. The Court held that the audio and video recording of the defendant compensated for the officer’s lapses in following the observation requirement of the Illinois Administrative Code. This case is the first reported case in Illinois finding that the use of audio and visual recording was sufficient to substitute for an officer’s observation of a defendant during the mandatory observation period.