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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section

April 2018, vol. 48, no. 9

Reliability is the paramount concern: People v. Ernsting

In People v. Ernsting, 2018 IL App (5th) 160330, the appellate court affirmed the trial court’s decision finding a breath test result to be untrustworthy. In May 2016, Defendant Therashia Ernsting, was driving a 2011 Chevrolet Camaro with her 85-pound dog in the passenger seat when she collided with a parked pickup truck. Id. at ¶ 3, 11. The collision caused the airbags to deploy. Id. at ¶ 3. At the scene, Defendant stated that she did not require medical treatment and that her dog had distracted her while driving. Id. After failing multiple field sobriety tests, she was arrested and charged with driving under the influence of alcohol (“DUI”). Id. At the Randolph County Jail, Deputy Kyle Colvis administered a breath test, which indicated that Defendant’s blood alcohol concentration (“BAC”) was 0.215. Id. at ¶ 4. Thus, she was charged with operating her vehicle while her BAC was 0.08 or more (625 ILCS 5/11-501(a)(1)). Id. Defendant filed a motion to suppress the results of the breath test and a petition to rescind the statutory summary suspension of her driving privileges, arguing that the breath test results were unreliable. Id. at ¶ 5-6. Specifically, Defendant argued that, when her car’s airbags deployed, her tooth punctured a spot in her mouth causing her mouth to bleed, and the blood materially affected the reliability of the test results. Id. at ¶ 6.

At the suppression hearing, the trial court heard evidence from Colvis (who administered the test), Dale Ernsting (Defendant’s husband), Defendant, Ronald Henson (Defendant’s expert witness), Dian Chandler (a correctional officer who booked Defendant following her arrest), and Anthony Shovan (a trooper with the Illinois State Police who routinely tests the accuracy of breath test machines). Id. at ¶ 8-21. The testimony for the State revealed that Colvis observed Defendant with slurred speech, glassy red eyes, a strong odor of alcohol on her breath, and a cold, unopened can of beer in her car. Id. at ¶ 19. It also revealed that Defendant never indicated to the officers that she had blood in her mouth or that she suffered any type of injury. Id. at ¶ 19-20.

Defendant testified that she had three beers with dinner between the hours of 6 p.m. and 8:30 p.m. (the accident happened at 11:00 p.m.), that the dog was hyper that night because Defendant and her husband had been gone all day, and that the dog was licking Defendant’s face and obstructing her vision while driving. Id. at ¶ 10-11. Defendant testified that one of the air bags hit her face causing a tooth to puncture a spot on her lip. Id. at ¶ 11. She explained that puncture wound was not serious enough to warrant medical attention but it did cause active bleeding inside of her mouth. Id. Defendant’s expert witness, Henson, testified that blood in a subject’s mouth will inflate a breath test because it disrupts the equilibrium upon which the breath test is based. Id. at ¶ 14. He ultimately opined that, given the presence of blood in Defendant’s mouth, the breath test was not reliable. Id. at ¶ 16.

The trial court ultimately granted the motion to suppress, finding that Defendant had established a prima facie case that the results of her breath test were unreliable. Id. at ¶ 18. The trial court found Defendant’s testimony that there had been blood in her mouth credible and noted that the State had not called an expert witness to refute Henson’s opinion that blood affects the reliability of a breath test. Id. at ¶ 24-26.

The State appealed and the appellate court affirmed, applying a manifest weight of the evidence review to the trial court’s factual findings and de novo review to the trial court’s ultimate legal determination.  Id. at ¶ 30. The appellate court concluded that Defendant presented a prima facie case that the results of her breath test were untrustworthy, and the State failed to rebut this. Id. at ¶ 34. The appellate court also noted that Defendant testified that she had blood in her mouth when she took the breath test, the trial court credited this claim, and Defendant presented unrebutted expert testimony that the blood in her mouth affected the reliability of the test results. Id.

The trial court was clearly convinced that Defendant was credible. Together, the air bag deployment, Defendant’s husband’s corroboration of her testimony that she had a cut inside of her mouth, and Henson’s testimony as an expert witness raised legitimate questions of reliability. The appellate court pointed out that the inquiry is not limited to whether the administration of the breath test is in compliance with the Code. Rather, as the Illinois Supreme Court has emphasized, reliability is and remains the paramount concern. See People v. Bonutti, 817 N.E.2d 489, 494 (2004).