In June, an Illinois Appellate Court in People v. Olson ruled that the State may raise “substantial compliance” with the Illinois Administrative Code (Code) as an argument for the admission of a breathalyzer test result. The case involved a machine that had not been tested within the required 62 day period required by the regulation. Olson sheds light on how substantial compliance may be viable even when there is apparent non-compliance with the Code’s regulations pertaining to sampling protocol in driving under the influence investigations.
At the heart of the dispute in Olson was the failure of the arresting police department to comply with the requirements of the Code, which mandates that an accuracy check shall be performed at least every 62 days on breathalyzer machines. Prior to Olson, the Appellate Court strictly applied this provision in People v. Clairmont and held that a breathalyzer machine result was not admissible into evidence because 71 days had passed between certification checks. In reaching its holding in Olson, the Court specifically pointed out that, while the results may appear to be inadmissible based upon the Court’s prior holding in Clairmont, the State in Olson preserved its substantial compliance argument by raising it in the trial court, whereas the State in Clairmont had not raised this argument in the trial court. Although the Court declined to address the substance of the State’s substantial compliance argument, the Court specifically cited its holding in Clairmont stating that “courts have held that a lack of strict compliance with certain regulations does not always render test results inadmissible….substantial compliance will be found where the deviation from the regulation neither affects the reliability of the test nor prejudices the defendant.”
The Court’s willingness to allow a substantial compliance argument with respect to the certification of the breathalyzer machine is an extension of the substantial compliance argument that has been recognized by the Court with respect to the regulations governing the collection of blood and urine samples for drugs and alcohol pursuant to a driving under the influence investigation and the 20 minute observation of a subject before submitting to a breathalyzer test. As a practical matter, although Olson only provides that the State can assert a substantial compliance argument in response to the failure of a breathalyzer machine to be certified within the time limits prescribed by the Code, this case has opened the door to the application of the substantial compliance doctrine to the guidelines set forth by the National Highway Traffic Safety Administration (NHTSA) with respect to the administration of the standardized field sobriety tests. On at least one occasion, a trial court judge has accepted the substantial compliance argument in admitting the results of a horizontal gaze nystagmus test (HGN) where the arresting officer did not hold the stimulus between 12 and 15 inches from the test subject’s face as required by the NHTSA standards.
Is a case like Olson likely to occur in McHenry County? Probably not, because all McHenry County police departments check their breathalyzers more often than the Code requires. One should not, however, discount the importance of the holding in Olson in light of this information. The availability of a substantial compliance argument with respect to the accuracy testing of the breathalyzer might be applied to accuracy checks for other devices, including portable breathalyzer devices, if they do not comply with the Code’s time requirements.
Author: Kevin A. Chrzanowski