People v. Thill

No. 2--97--0104

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellant, )
)
v. ) No. 96--DT--3768
)
ADAM R. THILL, ) Honorable
) Nicholas J. Galasso,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________

JUSTICE THOMAS delivered the opinion of the court:

The defendant, Adam R. Thill, was charged with driving under
the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1996)) and
driving with a breath-alcohol concentration in excess of .10 (625
ILCS 5/11-501(a)(1) (West 1996)). The defendant s driving
privileges were statutorily suspended after he submitted to a
breath test, which revealed a blood-alcohol concentration of .11.
The defendant filed a petition to rescind the statutory summary
suspension of his license. The trial court granted his petition.
The State appeals. We reverse.
Illinois state trooper Emmet Clifton testified at the
defendant s rescission hearing that on October 21, 1996, at
approximately 3:55 a.m., he stopped the defendant s vehicle for a
traffic violation on westbound I-88. The trooper had observed the
defendant s car weaving between several lanes and the shoulder of
the highway. He followed the car for about one mile and saw it
weave several times. After he stopped the defendant and approached
him, the trooper noticed that the defendant had bloodshot and
glassy eyes, slurred speech, and a strong odor of alcohol on his
breath. The defendant then proceeded to fail four field-sobriety
tests. Trooper Clifton was of the opinion that the defendant was
under the influence of alcohol. Clifton transported the defendant
to a police facility where the defendant submitted to a breath test
at 4:43 a.m., which revealed that his blood-alcohol level was .11.
The defendant testified that he suffers from asthma and that
he used a Ventolin inhaler on the night in question at about 6
p.m., 10 p.m., 3:15 a.m., and right before he was stopped by
Trooper Clifton. The defendant denied that he was under the
influence of alcohol.
Emmet Harmon testified as an expert on behalf of the defendant
regarding the effect of albuterol on the breathalyzer used to test
the defendant s breath, the Intoxilyzer 5000. Albuterol is an
ingredient in the Ventolin inhaler used by the defendant. Harmon
stated that the Intoxilyzer 5000 operates on principles of infrared
absorption. Under this theory, organic substances absorb
particular wavelengths of infrared light. The amount of absorption
is proportional to the concentration of the substance in the path
of the infrared light. According to Harmon, ethanol and albuterol
fall within the same hydroxyl group tested by the machine, and it
cannot differentiate between the hydroxyl compounds of ethanol and
albuterol.
Harmon further testified that there are 81 cubic centimeters
of air in the air chamber of the Intoxilyzer 5000. He stated that
"through some mathematical technique" that amount is calculated to
.10 grams of alcohol per 210 liters of breath. He then stated that
.0000385 gram of an alcohol compound in 81 cubic centimeters of air
would be equal to .10 grams of an alcohol compound in 210 liters of
air. In other words, slightly less than four one hundred
thousandths of a gram of alcohol would be equal to a .10 reading if
it was placed inside the chamber of an Intoxilyzer 5000. Harmon
indicated that .000038 gram is equal to 38 micrograms. Harmon then
noted that 90 micrograms of albuterol is distributed in a person s
lung chamber with one spray from a Ventolin inhaler. The maximum
lung retention period for albuterol is approximately two to four
hours. Harmon testified that, within a reasonable degree of
analytical and chemical certainty, after subtracting any albuterol
that measured on the Intoxilyzer 5000 the reading would not have
equaled or exceeded .10. The State objected to Harmon s opinion,
arguing that it lacked foundation. The trial court overruled the
objection.
On cross-examination, Harmon testified that the Intoxilyzer
5000 calculates the concentration of a compound in the air chamber
based on the infrared absorptivity unique to the particular
compound in the chamber. The machine is designed to make its
calculation based specifically on the absorptivity of ethanol, a
factor that is programmed into the instrument by calibration.
Harmon admitted that ethanol has a specific infrared absorptivity
that is different from the absorptivity factor for albuterol.
Harmon acknowledged that he did not know the absorptivity factor
for albuterol.
Harmon further testified on cross-examination that the
partition ratio has an effect on the calculation made when
albuterol is in the chamber of the Intoxilyzer 5000. The ratio is
the factor used to convert breath-alcohol concentration to blood-
alcohol concentration. Harmon conceded that the partition ratio
for ethanol is 2,100 to 1, is unique to ethanol, and is programmed
into the computer. He acknowledged that, if a different substance
was in the machine with a different partition ratio of, for
example, 1 to 1, the machine would be in error by a factor of
2,100. Harmon admitted that he did not know the partition ratio
for albuterol. On redirect examination, Harmon explained that the
machine reads albuterol as ethanol and would use the partition
ratio of ethanol in its calculation. He further noted that the
partition ratio for albuterol is not a factor because it relates to
the amount of albuterol in the blood and the Intoxilyzer 5000 only
reads the albuterol that is introduced into the lungs as if it were
ethanol.
During the course of Harmon s testimony, the defendant
introduced into evidence defendant s exhibit No. 3, the
manufacturer s product information insert for albuterol. The
insert prescribes that patients take no more than a two-spray dose
every four to six hours. About 90 micrograms of albuterol is
dispensed in a single spray. The insert notes that 72% of the
inhaled dose is eliminated in the urine within 24 hours. It also
notes that animal studies show that albuterol does not pass the
blood-brain barrier.
The trial court granted a motion by the defendant to strike
certain questions asked and answers given during the State s cross-
examination of Harmon. The defendant had argued that the State was
unable to prove up the facts inferred from the State s cross-
examination of Harmon. The trial court also sustained the
defendant s objections to the State s arguments regarding the
stricken testimony and prohibited the State from further arguing
the lack of proper foundation for Harmon s opinion testimony.
After hearing all the remaining evidence and considering the
closing arguments, the trial court granted the defendant s petition
to rescind the statutory summary suspension of his driving
privileges.
On appeal, the State argues that (1) the trial court erred in
striking evidence in the record that showed that Harmon s opinion
testimony lacked an adequate foundation; (2) absent the requisite
foundation, Harmon s opinion should have been excluded; and (3)
given the inadmissibility of Harmon s opinion, the trial court
erred in rescinding the statutory summary suspension of the
defendant s driving privileges.
The admission of expert testimony is a matter within the
discretion of the trial court (People v. Contreras, 246 Ill. App.
3d 502, 510 (1993)), and its decision in that regard will not be
disturbed absent an abuse of discretion (People v. Kane, 223 Ill.
App. 3d 377, 383 (1991)). However, if an expert s opinion is based
upon improper elements, it may be excluded or stricken. Department
of Transportation v. Bouy, 69 Ill. App. 3d 29, 38 (1979). The
trial court has a responsibility to determine whether the
underlying facts or data upon which an expert bases an opinion are
of a type reasonably relied upon by experts in the particular
field. City of Chicago v. Anthony, 136 Ill. 2d 169, 185 (1990).
Expert opinion that is based upon unreliable data and procedures is
inadmissible; a court must critically evaluate the reasoning
process by which experts connect data to their conclusions.
O Connor v. Commonwealth Edison Co., 807 F. Supp. 1376, 1395 (C.D.
Ill. 1992). For these reasons, wide latitude is allowed in the
cross-examination of an expert witness. See People v. Buggs, 112 Ill. 2d 284, 290 (1986). The burden of establishing an expert s
qualifications and that the scientific theories he relies upon are
generally accepted in the relevant field rests with the proponent.
Kane, 223 Ill. App. 3d at 384-85. There must be a sound
explanation as to the manner in which the expert opinion was
arrived at for it to be admissible. See Kane, 223 Ill. App. 3d at
385-86.
Applying the above-mentioned principles to the facts of the
case at bar, we find that the trial court erred in striking the
State s cross-examination of Harmon. Harmon testified on direct
examination that the Intoxilyzer 5000 operates on a theory of
infrared absorption, which involves the passage of infrared light
through organic substances in the infrared light path. The organic
substances absorb particular wavelengths of infrared light, and the
amount of absorption is proportional to the concentration of the
substance in the path of infrared light. Harmon noted that the
instrument is programmed based on the known absorptivity factor for
ethanol. On cross-examination, Harmon acknowledged that he did not
know the absorptivity factor for albuterol but that he did know it
was different from that of ethanol. Harmon never fully explained
how it was possible that given the different absorptivity rates of
the two substances he could nevertheless calculate the extent to
which any albuterol in the defendant s system would have affected
the reading given by the Intoxilyzer 5000. We find that this was
a proper subject of cross-examination and was properly argued by
the State as a basis for attacking the foundation for Harmon s
ultimate opinion that, subtracting any albuterol that measured on
the machine, the reading would not have been equal to or exceeded
.10.
Likewise, we find that the trial court erred in striking the
State s cross-examination of Harmon with respect to the partition
ratio for albuterol. Harmon acknowledged that, if a compound in
the chamber had a partition ratio of 1 to 1, the machine would give
a reading in error by a factor of 2,100. Harmon admitted that he
did not know the partition ratio for albuterol. He explained on
redirect examination that the machine would read albuterol as if it
were ethanol and that the partition ratio was not a factor here
because it refers to the amount of albuterol in the blood and in
this case the albuterol was only in the defendant s lungs. Even if
we were to view Harmon s testimony on redirect as satisfactorily
explaining the issues raised by the State with respect to the
partition ratio on cross-examination, we would still find that the
State was entitled to ask the questions relating to the partition
ratio. The State was entitled to test the witness s expertise in
the area and the process by which he attempted to connect the data
to his conclusion. This was not a situation, as the defendant
suggests, of the State suggesting a fact and then being unable to
prove it. To the extent that Harmon s answers to this area of
questioning were vague or unsatisfactory, it would affect the
credibility of his testimony and could compel a finding that his
opinion lacked an adequate foundation.
We next turn to the issue of whether Harmon s opinion should
have been excluded because it lacked the required foundation. In
that regard, we note that Harmon attempted to show that the reading
given by the machine was affected by the albuterol inhaled by the
defendant by comparing the fact that 38 micrograms of ethanol in
the machine would give a .10 reading and that in this case the
defendant had inhaled two sprays of albuterol at 90 micrograms
each. Harmon testified that albuterol is a crystalline solid that
works locally by adhering to the muscles within the bronchial tubes
and relaxing those muscles. A portion of the albuterol makes its
way out of the lungs and into the air chamber of the Intoxilyzer
5000. He never explained, however, what portion or percentage
passed out of the lungs through exhalation and what percentage
remained in the body. Moreover, he had testified that whatever
portion of albuterol remained in the lungs would only be there at
a maximum of between two and four hours. The defendant s breath
test was taken at 4:43 a.m., almost an hour after he last claimed
to inhale albuterol. Parenthetically, we note that the defendant s
claim that he last sprayed the Ventolin inhaler just before being
stopped is highly incredible since his last spray before that time
had been only 40 minutes earlier, even though proper use of the
drug called for a dosage every four to six hours. Nonetheless,
even assuming that the defendant had a dosage about one hour prior
to his test, some of the albuterol would have already been
eliminated from his system. The two- to four-hour figure testified
to by Harmon was a maximum time limit that any albuterol would
remain in the system. Also the product insert indicates that 72%
of the drug leaves the system by way of urination. That leaves
only 28% left that could possibly be eliminated by way of
respiration. Moreover, Harmon s testimony seems to presume that
the total amount of albuterol that went into the defendant s lungs
from the initial spray also entered the chamber of the Intoxilyzer
5000 in a single breath. Given these serious flaws in the basis
for Harmon s opinion, we find that the trial court erred in failing
to strike Harmon s opinion that, subtracting any albuterol that
measured on the Intoxilyzer 5000, the reading would not have
equaled or exceeded .10.
A summary suspension rescission hearing is a civil proceeding
in which the motorist bears the burden of proof to establish a
prima facie case for rescission. See People v. Orth, 124 Ill. 2d 326, 337-38 (1988). The burden is on the defendant to present a
prima facie case that the test result was unreliable. People v.
Miller, 219 Ill. App. 3d 246, 248 (1991). Elements of a prima
facie case attacking a breathalyzer test result as unreliable
include whether the test was properly administered by the
breathalyzer operator, whether the result was accurate and
trustworthy, and whether the Department of Public Health rules were
violated. People v. Easterly, 264 Ill. App. 3d 233, 235 (1994).
Absent proof of these factors, a motorist fails to establish a
prima facie case for rescission of his suspension. Easterly, 264
Ill. App. 3d at 235.
Without Harmon s opinion, the defendant failed to meet his
burden of proof that the statutory summary suspension of his
license should have been rescinded. The defendant took the test
and his blood-alcohol concentration was found to be .11, creating
a presumption that he was under the influence of alcohol. See 625
ILCS 5/11--501.2(b)(3) (West 1996); People v. Franciskovich, 202
Ill. App. 3d 693, 694 (1990). This was supported by the
defendant s erratic driving before being stopped, his subsequent
failure of several field-sobriety tests, and the arresting
officer s observation of glassy eyes, slurred speech, and a strong
odor of alcohol. As we previously noted, albuterol does not cross
the blood-brain barrier, so any inhalation of the substance would
not have impacted on the defendant s failure of the field-sobriety
tests and his erratic driving. Accordingly, we find that the trial
court s order rescinding the defendant s statutory summary
suspension was against the manifest weight of the evidence.
For the foregoing reasons, we reverse the judgment of the
circuit court of Du Page County that rescinded the defendant s
statutory summary suspension, and we remand the cause for further
proceedings consistent with this opinion.
Reversed and remanded.
GEIGER, P.J., concurs.
JUSTICE BOWMAN, dissenting:
I respectfully dissent from the majority s conclusion that the
trial court erred when it failed to strike Harmon s opinion that
"subtracting any albuterol that measured on the Intoxilyzer 5000,
the reading would not have equaled or exceeded .10" (slip op. at
___). The majority reaches this conclusion by reviewing Harmon s
complex scientific testimony and then playing the role of a fact
finder. I simply do not agree with the majority s approach, and I
believe that any deficiencies in Harmon s testimony were a matter
for the trial court to consider. Accordingly, I would affirm the
trial court s decision to admit Harmon s expert testimony.
It is well settled that an expert s opinion is only as valid
as the bases for that opinion. Gyllin v. College Craft
Enterprises, Ltd., 260 Ill. App. 3d 707, 715 (1994). An expert is
a witness who, because of his education, training, or practical
experience, possesses knowledge beyond that of the average person.
People v. Novak, 163 Ill. 2d 93, 104 (1994). The decision to admit
an expert s testimony lies within the sound and wide discretion of
the trial court. People v. Eyler, 133 Ill. 2d 173, 211 (1989). It
is a well-established principle of appellate review that this court
does not substitute its judgment for that of the trier of fact on
questions involving the weight of the evidence or the credibility
of the witnesses. People v. Van Brocklin, 293 Ill. App. 3d 156,
165 (1997).
In this case, the majority criticizes Harmon for never
explaining what portion of albuterol exits the body through
exhalation and what portion of albuterol remains in the body.
Given the sequence of events on the night in question, Harmon s
testimony that any albuterol would remain in defendant s lungs for
between two and four hours, and information from the product
insert, the majority concludes that "some" of the albuterol
defendant inhaled would have already been eliminated at the time of
the test. Based on its own interpretation of the facts, the
majority is then able to conclude that Harmon s testimony was
filled with "serious flaws" and not credible on appeal. In other
words, by merely reading the record, the majority is able to
contradict Harmon s conclusion and the trial court s determination
regarding the amount of albuterol in defendant s system and its
effect on the Intoxilyzer.
As is apparent, the majority s analysis is based on its
reading of Harmon s testimony and its credibility determinations of
Harmon and defendant. These types of decisions are simply not the
responsibility of this court. Harmon s testimony was highly
technical and certainly beyond the ken of the average person. His
testimony was properly admitted because it would assist the trier
of fact in the determination of a fact at issue, namely, the effect
of albuterol on the Intoxilyzer reading. His opinion that the
reading would be lower than .10 if the albuterol were to be
subtracted was based on his knowledge and practical experience.
Once he offered his opinion, the trial court had the discretion to
determine whether that opinion was properly based in fact. It was
also within the trial court s discretion to weigh the value of that
opinion as well as the credibility of Harmon and defendant.
Because the majority has usurped the trial court s role regarding
the weighing of evidence and the determination of witness
credibility, I dissent.