A man fighting to overturn his drunken driving conviction has asked the Illinois Supreme Court to clarify the law governing testing requirements for breath-test machines.

Dean Rigsby, who allegedly registered a blood-alcohol concentration of 0.276 percent, contends that the 5th District Appellate Court majority in his case relaxed the regulatory scheme for testing breath-alcohol machines.

At issue is whether prosecutors had to prove that the machine was not tested after Rigsby's breath check, or that if it was tested, it was found to be working properly.

In a petition for leave to appeal, Rigsby contends that since neither point was proved at his trial, the breath-test results were not sufficiently reliable to prove him guilty beyond a reasonable doubt.

Rigsby says his case is one of first impression.

According to the Appellate Court, the sole witness against Rigsby was Lebanon police officer Robert Boehm.

Boehm testified that on the afternoon of May 25, 2006, a motorist alerted him to a red pickup truck on the side of the road with a man slumped over the steering wheel.

The officer testified that he found the truck running and saw two open beer cans in the truck bed and one on the floor. Rigsby was unconscious but still had his foot on the brake.

Unable to wake Rigsby, Boehm called for an ambulance.

''Before the ambulance arrived, the defendant woke momentarily, asked Boehm for a kiss, and said 'Alikazam' before passing out again,'' the Appellate Court noted.

Paramedics told Boehm they suspected Rigsby was simply drunk. Since Rigsby smelled of alcohol and could not stand to complete a field sobriety test, Boehm arrested him.

Boehm testified that he administered a breath-alcohol test using an EC-IR machine that had last been certified on April 12, 2006, by a man named Clyde Matthews. Rigsby blew a 0.276 percent, Boehm said.

On cross-examination, Boehm was shown pages from the EC-IR's log. Immediately above the entry of Rigsby's test results, Matthews had written his name but crossed it out.

On another sheet, Matthews indicated that he calibrated the machine on May 25, the same day as Rigsby's arrest, but the entry did not indicate whether it was before or after Rigsby's breath test.

Prosecutors then entered, without objection, the printout showing the results of Rigsby's breath test.

A St. Clair County jury convicted Rigsby of drunken driving. He was sentenced to 180 days in jail — 177 already served — and 2½ years on probation.

On June 24, a divided panel of the 5th District Appellate Court affirmed Rigsby's conviction. Justice Thomas M. Welch wrote the published opinion, with Justice Richard P. Goldenhersh concurring. Justice Melissa A. Chapman dissented.

Rigsby argued on appeal that prosecutors failed to prove that the EC-IR had been tested in accordance with the Illinois State Police regulations found at 20 Ill.Adm.Code §1286.200.

Welch explained that the regulations establish a rebuttable presumption that the breath-test machine was accurate premised on four conditions: the machine had to be approved; the accuracy check prior to a defendant's test must be within a certain tolerance; a defendant's test must be within 62 days of an accuracy check; and central to Rigsby's appeal, no accuracy check was performed after a defendant's test or, if one was, it also must be within an acceptable tolerance.

Rigsby argued that prosecutors failed to submit evidence that, after his test, the EC-IR either was not checked or was checked and found to be accurate. That failure, Rigsby argued, meant the state did not meet its burden of proof.

The appellate majority disagreed.

''Proving that the breath-test examination was performed according to the Department of State Police standards is not an element of the offense of driving under the influence but is instead a foundational requirement for the admission of the breath-test results,'' Welch wrote, citing People v. Black, 84 Ill.App.3d 1050 (1980).

The failure to lay a proper foundation goes to admissibility of the evidence, not the sufficiency of the evidence, Welch wrote.

''Once the results of the breath test showing the defendant's alcohol content of 0.27 [percent] was admitted into evidence, there was sufficient evidence before the jury for it to find him guilty beyond a reasonable doubt, even if the evidence was improperly admitted,'' Welch wrote.

Rigsby exposed the purportedly improper foundation during the police officer's cross-examination, Welch noted, but then failed to object to the admission of the printout showing his breath-test results.

''This failure to object waived the issue of an improper foundation on appeal,'' Welch wrote.

In her dissent, Chapman agreed with the majority that Rigsby's trial counsel failed to object to the introduction of the test results.

''However, I believe that given the number of other times before, during and after the trial that the foundation issue was raised by defense counsel, the foundation issue was preserved,'' Chapman wrote, noting that the state did not argue waiver.

Based on pretrial motions, questions at trial and a motion for a directed verdict, Rigsby's lawyer's arguments were clear, Chapman wrote.

''Because the state failed to prove the foundational element necessary to establish the accuracy of the defendant's May 25, 2006, breath-alcohol test and because a breath-alcohol test at or above 0.08 [percent] was a required element of the crime with which the defendant was charged, I believe that the state failed to prove the defendant guilty of the crime beyond a reasonable doubt,'' Chapman wrote.

In his petition to the high court, Rigsby calls that failure a ''fatal lack of reliability' ' of the evidence.

The Vehicle Code states that breath-alcohol tests ''shall be admissible,' ' the defendant contends. ''However, the tests have no presumption of reliability or accuracy unless there is proof of a successful accuracy test after the one given to the accused, or proof that the machine was never again tested for accuracy,'' he argues.

''Since the state could not prove the presumptive accuracy of the test results, the evidence against Mr. Rigsby for having any particular blood-alcohol level is too weak to uphold a conviction,' ' the petition contends.

Rigsby is represented by Assistant Defender Larry R. Wells and Deputy Defender Daniel M. Kirwan of the Office of the State Appellate Defender.

The case is People v. Dean Rigsby, No. 106887.