IL Appellate Court rules that blood in motorist’s mouth invalidated her breath test

In a new Illinois Appellate Court opinion (People v. Ernsting, 2018 IL App (5th) 160330), the Court affirmed a trial Court’s ruling that a breath test result was inadmissible due to the motorist bleeding inside her mouth.

According to the opinion, the motorist claimed that after having three beers with dinner, she went for a ride with her 85 pound dog.  During the ride, the dog was unruly, and was licking her face and obstructing her view.  As a result, the defendant crashed her car.

She testified that before taking the breath test, she was bleeding from her mouth.  The arresting officer did not check her mouth, in violation of the Illinois Administrative Code rule for breath alcohol testing, which requires that the breath test operator observe the subject for 20 minutes prior to the test, to ensure that there is no foreign substances in her mouth.  The Court found that blood is a foreign substance.

The Court also heard testimony from Ronald Henson, PhD., a breath test expert (who I have used in a few DUI cases and one civil case in the past).  Dr. Henson testified that blood in a subject’s mouth is a “foreign substance” and would elevate their BAC result and make the test unreliable.  This was supported by Henson’s opinion that the defendant did not appear to be intoxicated on the arrest video.  He also pointed to mistakes that the officer made in administering the breath test.

Due to these errors, the Defendant’s breath test of 0.215 was suppressed from evidence at her trial and her statutory summary suspension was rescinded.

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