THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NINA M. ROBLEDO, Defendant-Appellant.
No. 2-15-1142
Appellate Court of Illinois, Second District
February 21, 2018
2018 IL App (2d) 151142
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.
Appeal from the Circuit Court of Lake County. No. 14-DT-2031. Honorable Veronica M. O‘Malley, Judge, Presiding.
¶ 1 Following a jury trial in the circuit court of Lake County, defendant, Nina M. Robledo, appeals her conviction of driving with a blood alcohol concentration (BAC) of 0.08 or more (
I. BACKGROUND
¶ 3 On September 28, 2014, at 1:45 a.m., Officer Michael Bond of the Mundelein Police Department observed defendant driving a car with only one headlight illuminated. He followed the car onto a residential street, where it pulled into a driveway. During that brief time, Bond did not notice anything unusual about the way the car was being driven. Defendant exited the
¶ 4 Following defendant‘s performance of the field sobriety tests, Bond informed defendant that she was “borderline.” Defendant agreed to take a breath test. Bond observed defendant for 20 minutes, during which she did not put anything into her mouth. Defendant then blew into an Intox EC/IR-II machine, with a result of 0.082. Bond arrested defendant for driving under the influence of alcohol (
¶ 5 At trial, Bond testified to the above facts. He also testified that he was a certified breath-analysis operator and that the breath-test machine checks itself monthly for accuracy. Bond explained that a dry gas container inside the machine is calibrated to give a result of 0.079. According to Bond, the machine did internal checks and performed certification tests on September 2, 2014, and October 1, 2014, and both tests accurately measured the alcohol concentration in the dry gas container at 0.079. Bond testified that the machine has a margin of error of plus or minus 0.005.
¶ 6 Defendant did not contest Bond‘s testimony or the admissibility of the breath-test result. However, defendant moved for a directed verdict on the basis that her actual BAC could have
II. ANALYSIS
¶ 8 Defendant contends that she was not proved guilty beyond a reasonable doubt where her BAC could have been as low as 0.077, given the machine‘s margin of error. Both parties represent that this is an issue of first impression and point us to decisions of foreign jurisdictions. While no Illinois court has specifically addressed the issue of a breath-test machine‘s margin of error, it is well settled in Illinois that any question of the reliability of evidence is properly considered by the jury in determining what weight to give that evidence. People v. Lipscomb, 215 Ill. App. 3d 413, 432 (1991); People v. Mehlberg, 249 Ill. App. 3d 499, 539 (1993). The relevant inquiry is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Luth, 335 Ill. App. 3d 175, 178 (2002).
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¶ 12 Here, the evidence shows that Bond was a certified breath-analysis operator when he administered the breath test to defendant and that the particular breath-test machine used to perform the test was approved by the Department. Bond testified, and printouts of the certification checks show, that the machine satisfactorily performed an accuracy test on September 2, 2014 (26 days prior to the subject test), and on October 1, 2014 (3 days after the subject test). Bond testified that the machine‘s dry gas container is calibrated to produce a reading of 0.079 during the accuracy checks. The printouts show that the machine‘s readings were 0.079 on both occasions. Thus, the State established that the machine was accurate at the time of defendant‘s test. Defendant argues that there is no evidence that the margin of error did not apply to the accuracy checks, but that argument is specious. If there had been an error, the machine would not have produced a reading of 0.079 during the accuracy tests.
¶ 13 As noted, defendant did not contest the admissibility of the breath-test result. The result‘s reliability was, therefore, for the jury to determine.2 In People v. Barbic, 105 Ill. App. 2d 360 (1969), a prosecution for speeding, the evidence showed that a radar device was set for a speed of 65 miles per hour and tested perfectly at all times on the day of the defendant‘s arrest. Barbic, 105 Ill. App. 2d at 362. The evidence showed that the radar device had a possible percentage of error of less than 1%. Barbic, 105 Ill. App. 2d at 362-63. The defendant was arrested for driving 62 miles per hour in a posted speed zone of 50 miles per hour, based upon the radar reading. Barbic, 105 Ill. App. 2d at 361. The defendant testified that he was traveling 50 miles per hour, as shown by a tachograph in his truck that recorded his speed. Barbic, 105 Ill. App. 2d at 365. The trial court found the defendant guilty, and, on appeal, the
¶ 14 Similarly, the Illinois Appellate Court has held that the reliability of DNA evidence and the weight to be given it are issues for the jury to decide. Lipscomb, 215 Ill. App. 3d at 432-33. In People v. Eyler, 133 Ill. 2d 173, 212 (1990), our supreme court likewise held that the reliability of fingerprint evidence was for the jury to weigh where there was evidence that a technique known as “supergluing” fingerprints could result in misidentification.
¶ 15 Illinois law is dispositive of this appeal. We look to the decisions of foreign jurisdictions to provide persuasive authority for our analysis only when there is no Illinois authority on a particular issue. People v. Bensen, 2017 IL App (2d) 150085, ¶ 30. Thus, we do not rely on the foreign cases cited by the parties. Nevertheless, we will briefly discuss those cases relied upon by defendant.
¶ 16 Defendant‘s reliance on State v. Bjornsen, 271 N.W.2d 839 (Neb. 1978), is misplaced. In Bjornsen, 271 N.W.2d at 840, the result of a blood test showed the defendant‘s intoxication. Bjornsen, 271 N.W.2d at 840. However, on cross-examination, the State‘s expert conceded that the blood test‘s margin of error made it possible that the defendant‘s actual BAC was below the legal limit of intoxication. Bjornsen, 271 N.W.2d at 840. There was no such concession in our case. Other cases that defendant cites are similarly inapposite. In Haynes v. State, 865 P.2d 753, 756 (Alaska 1993), although the court held that the breath-test machine‘s margin of error must be
¶ 17 Essentially, defendant argues that we must, in all cases, require the prosecution to prove that a test result exceeds 0.08 by the margin of error recognized in the testing process. Defendant arrives at this conclusion because, according to defendant,
¶ 18 We reiterate that defendant did not object to the breath-test result‘s admission into evidence. If the evidence shows that the scientific procedures used gave an unreliable result, the court can exclude the evidence. Lipscomb, 215 Ill. App. 3d at 432. Otherwise, “[c]hallenges to the accuracy of the scientific process in question are properly held before the jury by cross-examination of prosecution witnesses and presentation of the defendant‘s own witnesses.” Mehlberg, 249 Ill. App. 3d at 539. Here, the jury heard that the breath-test machine was subject to a 0.005 margin of error, and the jury also heard Bond‘s testimony and received the printouts of the readings showing the results of the accuracy tests and defendant‘s result. The jury was properly instructed. Consequently, the weight to be given the prosecution‘s evidence was for the jury to decide. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that defendant was guilty of driving with a BAC of 0.08 or more, based upon the reading taken from the breath-test machine.
III. CONCLUSION
¶ 20 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 21 Affirmed.