ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Ikerman, 2012 IL App (5th) 110299

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

MARK A. IKERMAN, Defendant-Appellant.

 District & No. Fifth District

Docket No. 5-11-0299

Rule 23 Order filed

Motion to publish

granted

July 9, 2012

August 1, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The trial court did not abuse its discretion in sentencing defendant to 10

years in prison on two counts of aggravated driving while under the

influence of alcohol that resulted in the death of a man and his infant son

and denying defendant’s request for probation, since the evidence that the

adult decedent was out late at night with his son while he was intoxicated

and that he parked his disabled vehicle on a road with no illumination

shortly before defendant crashed into his vehicle did not constitute

extraordinary circumstances warranting probation.

Decision Under 

Review

Appeal from the Circuit Court of Madison County, No. 08-CF-2607; the

Hon. James Hackett, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Edward W. Unsell, of Law Office of Edward W. Unsell, of East Alton,

and Chet Kelly, of Belleville, for appellant.

Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick Delfino,

Stephen E. Norris, and Sharon Shanahan, all of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE WELCH delivered the judgment of the court, with opinion.

Justices Goldenhersh and Wexstten concurred in the judgment and

opinion.

OPINION

¶ 1 The defendant, Mark Ikerman, was found guilty of two counts of aggravated driving

while under the influence (DUI) of alcohol resulting in two deaths (625 ILCS 5/11-

501(d)(1)(F) (West 2008)), two counts of failure to report an accident involving two deaths

(625 ILCS 5/11-401(b) (West 2008)), and two counts of aggravated driving with a bloodalcohol level of 0.08 or more resulting in two deaths (625 ILCS 5/11-501(d)(1)(F) (West

2008)). During sentencing, the trial court noted that the two convictions for aggravated DUI

and two convictions for aggravated driving with a blood-alcohol level of 0.08 or more

merged for sentencing purposes. The court further noted that the two convictions for failure

to report an accident also merged for sentencing. Thereafter, the court sentenced the

defendant to 10 years in prison on the aggravated-DUI convictions and 5 years in prison on

the failure-to-report convictions, which was to run consecutively to the aggravated-DUI

sentence.

¶ 2 The defendant only challenges his aggravated-DUI convictions and sentence on appeal.

Specifically, the defendant argues (1) the State failed to prove beyond a reasonable doubt that

he had a blood-alcohol content (BAC) of 0.08 or more, (2) the State failed to prove beyond

a reasonable doubt that he was intoxicated at the time of the offense, (3) the State failed to

prove beyond a reasonable doubt that he was the proximate cause of the deaths of the

victims, Donald Legens, Sr., and Donald Legens, Jr., and (4) the trial court abused its

discretion at sentencing by failing to consider the mitigating factors presented by him and by

denying his request for probation. For the following reasons, we affirm.

¶ 3 On November 17, 2008, the State charged the defendant by amended information with

two counts of aggravated DUI for his involvement in a motor vehicle accident that resulted

in two deaths and with two counts of failure to report an accident involving those two deaths.

On October 7, 2010, the State also charged the defendant by information with two counts of

aggravated driving with a blood-alcohol level of 0.08 or more resulting in two deaths. On

-2-
October 18, 2010, the defendant waived his right to a jury trial, and the case proceeded to a

bench trial. The evidence adduced at trial established that in the late-night hours of

November 13, 2008, Donald Legens, Sr., was traveling in his Kia with his 10-month-old son,

Donald Legens, Jr., on Pontoon Road in Granite City. As he was driving, the vehicle ran out

of gas, and he parked in the far right lane of the four-lane road.

¶ 4 Stephanie Barks was driving home from work on November 14, 2008, at approximately

12 a.m., when she approached two vehicles stopped by a train on West Pontoon Road. After

the train passed, the vehicle in the left-hand lane crossed the railroad tracks and continued

traveling on West Pontoon Road. However, the vehicle in Barks’s lane, the right-hand lane,

did not move. Therefore, Barks was forced to move into the left lane and pass the stopped

vehicle. As she crossed the railroad tracks, she noticed a man walking toward the vehicle

carrying a small child and a gas can. She also observed that the vehicle’s headlights were on.

She continued driving until she was stopped at a stoplight at the next intersection. As she was

stopped at the light, she watched the man from her rearview mirror until the light turned

green.

¶ 5 Also on the same night shortly after midnight, Kerri Yount was traveling west on

Pontoon Road when she observed a vehicle parked in the same lane that she was driving (the

far right lane). She was approximately two car lengths away when she observed the vehicle

parked in her lane with no lights. Consequently, she slammed on her brakes and swerved out

of the lane to avoid a collision. As she approached the vehicle, she noticed a man standing

behind the vehicle carrying something. It appeared the man was getting ready to step off the

side of the road. She did not notice another person near the vehicle. She believed that she

would have hit the parked car and the man if she had not been paying attention.

¶ 6 According to Yount, the man had an unusual reaction to almost getting hit. He gave her

a “blank stare,” as if he did not care that he was almost hit by a vehicle, and then continued

“doing what he was doing.” She considered stopping to offer assistance but ultimately

decided against it because he was a “strange man” and it was dark and after midnight.

Instead, she called the police to request an officer be dispatched to assist the man. She noted

that the particular stretch of road where the car was parked was not illuminated and was

under construction. She was driving slower than the speed limit because it was very dark and

she was afraid of hitting something.

¶ 7 Minutes later, before the police arrived, the defendant was driving home on Pontoon

Road following a night of playing pool at Mac and Mick’s tavern. He was driving his

employer’s tow truck. The defendant was traveling in the same lane as the parked Kia and

ultimately collided with the vehicle. His tow truck pushed the Kia 364 feet until the vehicles

came to rest on a dirt embankment on the north side of the road. The defendant then backed

up and left the scene of the crash.

¶ 8 Amber Pace was driving toward the scene of the accident when she observed a tow truck

with no front end and no headlights traveling in the opposite direction. She believed that the

tow truck was traveling faster than the speed limit of 30 or 35 miles per hour. Pace observed

the tow truck for approximately 30 to 40 seconds and did not observe it swerve. As she

crossed the railroad tracks, she noticed a wrecked blue SUV on a dirt embankment to her

-3-
right. She then noticed a body lying in the middle of the road. She parked her vehicle in the

road, stopped oncoming traffic before the body was hit, and called 9-1-1. Pace described the

area as “not brightly lit, but *** not pitch dark.” She observed debris scattered over the four

lanes of traffic. She did not realize a babywas involved in the accident until she saw the baby

being put in the ambulance.

¶ 9 Gary Poss lived on the south side of Pontoon Road, near the area where the crash

occurred. That night, he heard a “massive noise,” which sounded like an explosion. After

hearing the noise of the crash, he walked to the scene and observed a “massive amount” of

debris in the street and a lot of smoke. He also observed the taillights of a large vehicle

rapidly leaving the scene. He opined that the truck was rapidly leaving the scene because it

was “bouncing all over the railroad tracks.” He did not see the SUV until the next morning.

He testified that many of the streetlights in the area were removed due to the construction of

a new overpass. However, some nearby businesses had large parking lot lights that provided

the area with some illumination.

¶ 10 Arriving at the scene shortly after the accident, Granite City police officer Eric Bailey

observed a body lying in the road and noted the individual was deceased. He also observed

debris on the road. He testified that an infant was injured in the vehicle crash, but he did not

see the baby until he observed the baby being put in the ambulance.

¶ 11 Michael Mize observed the damaged tow truck sitting in the middle of the road when he

was driving on West Pontoon Road on the night of the accident. According to Mize, the tow

truck had significant front-end damage and did not have front headlights. He noticed the tow

truck because he thought it peculiar that the truck would be at the accident scene before any

emergency vehicles. He observed the truck leave the scene and decided to follow it because

it was obvious that a car accident had occurred. As he turned around to follow the truck, he

noticed the SUV on the embankment. He followed the truck for approximately six or seven

miles until it turned into a driveway to a trailer court. Mize then went to the Pontoon Beach

police department to report the accident. He gave the officers at the police department the

truck’s license plate number and informed them that he believed the truck had been involved

in a hit-and-run accident.

¶ 12 Sharon Hildreth received a phone call from the defendant at approximately 1 a.m. on

November 14, 2008. The defendant told her that he had been in a vehicle accident, but he did

not know what he hit because he had blacked out. He said that the whole front of his truck

was damaged, and he left the accident scene because he was drunk. She estimated that the

conversation lasted 30 to 45 minutes. While on the phone with the defendant, she heard

police officers knocking on his door for approximately 15 to 20 minutes. She knew the

knocking was from police officers because the defendant told her. Several times during the

phone conversation she advised the defendant to open the door and talk to the officers;

however, he refused because he was drunk and scared. She characterized the defendant’s

speech as slurred and said he was “all over the place.” However, the defendant’s speech was

not so slurred that she was unable to understand him. He was very emotional during the

conversation, and he admitted several times that he was drunk. Afterthe defendant was taken

into custody (this occurred approximately seven hours after the crash), Hildreth visited him

in jail. During the visit, he blamed her for everything and told her that he was drinking

-4-
following the accident because he had a toothache.

¶ 13 Jamie Mitcherson was on the same pool league as the defendant. Prior to the accident,

the defendant and Mitcherson were playing pool at Mac and Mick’s tavern until

approximately 10:30 or 11 p.m. Mitcherson observed the defendant drinking mixed drinks

throughout the night, but was unable to say exactly how many drinks the defendant had

because he never personally saw the defendant order a drink. He did not know how

intoxicated the defendant was that night. However, he did not remember seeing the defendant

without a drink in his hand. He had known the defendant for approximately three years, but

had never seen him “totally intoxicated.”

¶ 14 Chris Modrusic, a Pontoon Beach police officer, was dispatched to 2900 Sand Road

because the department had received a call of a fatal hit-and-run accident and a witness had

identified the suspect’s vehicle at this location. He arrived at the residence at 12:27 a.m. and

identified the truck as described by the witness. When he approached the truck, he noticed

it had extensive front-end damage and smoke was coming from the engine compartment. As

he approached the trailer, he heard someone running around inside.

¶ 15 Gary Brooks, a detective with the Granite City police department, arrived at the trailer

after Modrusic. Because he had orders to make contact with the occupant of the trailer, he

approached and began knocking on the doors and windows. He heard movement inside the

trailer, but no one answered the door. He believed that he knocked on the door off and on

pretty loudly for at least one hour. After approximately 30 to 45 minutes, he could hear

snoring coming from inside the trailer. The tow truck was eventually impounded by the

police department, and he left to make sure the truck was secured inside the department’s

tow-impound building. He then went to the accident scene and transported the Kia to the

impound building before returning to the suspect’s trailer to wait for a search warrant. The

warrant was not executed until approximately 7:20 a.m. on November 14. After the warrant

was obtained, officers entered the trailer and found the defendant inside. The defendant was

taken into custody, and Brooks transported him to the Granite City police department.

¶ 16 Kenneth Wojtowicz, a detective with the Granite City police department, had a brief

conversation with the defendant before he was transported to the police department. The

defendant admitted that he was the driver of the truck.

¶ 17 Later, while at the station, the defendant spoke with Wojtowicz and another officer

concerning the events of the past night. He told the officers that he drove his tow truck to

Mac and Mick’s tavern the previous night to play pool in his pool league. He arrived at

approximately 7:30 or 8 p.m. He admitted drinking two to three mixed drinks at the tavern

no later than 9 p.m. While at the tavern, he ate some pizza at approximately 9:30 p.m. He left

the tavern at approximately 10 p.m. and went to Wal-Mart to get dog food. He told the

officers that he never went into Wal-Mart that night because he started feeling “weird” and

began experiencing chest pains. He left the Wal-Mart parking lot and drove straight home.

He did not have anything to drink once he arrived home. He repeatedly insisted that his truck

was not damaged and that he was not involved in an accident. He maintained that he did not

remember noticing any damage to his truck. He denied making any phone calls after he

returned home and denied that he was intoxicated that night. He also denied hearing the

-5-
police officers knocking on his doors and windows. He further denied talking on the phone

with a female.

¶ 18 The defendant eventually admitted that he remembered hitting something, backing up,

and then going home. He explained that he blacked out and “snapped to” as a result of the

crash. However, he left without looking to see what he hit, and he did not know that he hit

another vehicle. Once he arrived home, he called Hildreth. He admitted that he talked to

Hildreth a second time before the police officers took him into custody, and she informed

him that he had hit a person that night.

¶ 19 The officers prepared an alcohol influence report, which indicated that the defendant had

red and/or glassy eyes, a dry mouth, and a confused appearance. It also indicated that the

officers detected the faint odor of alcohol on his breath. Following the interview, the

defendant was taken to the emergency room at Gateway Regional Medical Center because

he consented to a blood and urine sample. The parties stipulated that if Dareea Patrick-Paiva,

a forensic scientist employed by the Illinois State Police, was called as a witness, she would

testify that, within a reasonable degree of scientific certainty, the results of the defendant’s

blood test would indicate the presence of ethanol at a concentration of 0.020 grams per 100

milliliters.

¶ 20 At trial, Kris Gebke, a traffic crash reconstruction officer with the Illinois State Police,

testified that he arrived at the accident scene at approximately 2:30 a.m. on November 14.

As part of his reconstruction duties, he surveyed the scene, examined the tow truck and the

Kia, and took photographs of the area. He testified that on initial impact, the Kia collapsed

from front to rear five feet and the rear frame was exposed. The tow truck pushed the Kia

364 feet and the truck’s final resting place was on top of the car’s frame. He observed

indentations in the road caused by the rear frame of the car being pushed downward into the

road, but did not observe any preimpact marks indicating that the tow truck had braked prior

to impact. He calculated the postimpact speed of the two vehicles to be 43 miles per hour.

He calculated the preimpact speed of the tow truck to be a minimum of 50 miles per hour.

He testified that the speed limit on West Pontoon Road was 35 miles per hour. He

determined that the defendant did not reduce his speed prior to the collision and that the

primary cause of the crash was the defendant’s inability to avoid the collision. He concluded

that the lights of the Kia were turned off at the time of impact.

¶ 21 Dr. Christopher Long, the director of the St. Louis University School of Medicine

forensic toxicology laboratory, testified as an expert in toxicology and retrograde

extrapolation. Dr. Long explained that retrograde extrapolation allows for the calculation of

a person’s unknown BAC when blood is drawn sometime after a particular occurrence. He

testified that the formula he used for the retrograde-extrapolation calculation was generally

accepted in the field of toxicology. In reaching his conclusions, he analyzed the accident

report, deposition testimony from the civil case that resulted from the crash, the defendant’s

video statement, and the Illinois State Police laboratory report, which indicated that the

defendant had a 0.020 BAC 10 hours following the crash. He also considered the defendant’s

actions on the night of the crash and the police description of the accident. He also discussed

the incident with the defendant’s neighbor. Dr. Long explained that alcohol is generally

metabolized at 0.018 grams per hour. Based on his calculations, he concluded that the

-6-
defendant’s BAC at the time of the crash was 0.200 grams per 100 milliliters.

¶ 22 Dr. Long testified that a person’s height and weight had no effect on retrograde

extrapolation, but it should be considered when converting blood alcohol to the number of

drinks consumed. He estimated that the defendant had 9 to 11 drinks in his system when the

crash occurred. He explained that food would delay absorption of alcohol; however, he

opined that the defendant eating a few slices of pizza between 10 and 11 p.m. had no effect

on his calculations of the defendant’s BAC at the time of the accident. He concluded that the

defendant was impaired in his ability to safely and properly operate a motor vehicle at the

time of the crash. He maintained that the use of a disinfecting swab containing alcohol would

have no effect on the blood test performed by the Illinois State Police. He concluded that the

margin of error on the BAC test was low because the blood sample was run in the duplicate,

resulting in readings of 0.01999 and 0.02000. He testified that individuals with a BAC of

0.18 to 0.30 exhibited the following symptoms: emotional instability, decreased inhibitions,

loss of critical judgment, impairment of memory and comprehension, decreased sensory

response, increased reaction time, and some muscular incoordination. Dr. Long noted that

these symptoms might not appear in an individual who routinely performs rote tasks under

the influence of alcohol, because the body is adaptable. However, when required to perform

more than just routine tasks, the impairment would surface.

¶ 23 After the State rested its case, the defense called Mary Sloan to the stand. Sloan testified

that she played in the same pool league as the defendant, and she was at the tavern on the

night of the incident. She was able to observe the defendant throughout the night, and she

noted that he was drinking alcohol but did not exhibit any signs of intoxication.

¶ 24 After leaving Mac and Mick’s tavern, the defendant stopped at Sparky 397 Pub (the

defendant did not mention this second stop during his police interview). Mark Eddleman

testified that his family owned the bar. While working at the bar on November 13, Eddleman

was informed that the defendant had parked his tow truck in the center of the bar’s parking

lot, and it needed to be moved. Eddleman spoke to the defendant between 11:45 and 11:50

p.m. and requested that he move the truck. He estimated that the conversation lasted for a

couple of minutes. When asked whether he believed the defendant was intoxicated, he

responded: “Intoxicated–maybe–yeah, he probably had a few drinks. I knew he had one at

my bar, but did he over-intoxicate where I wouldn’t serve him, no.” Eddleman was involved

in a dramshop case as a result of the crash.

¶ 25 Fred Semke testified as an accident reconstruction expert for the defense. Semke

examined the pictures of the crash, the damage to the vehicles, and Gebke’s report, which

included his calculations on the preimpact and postimpact speeds of the vehicles. He

determined that Gebke’s conclusion concerning the speed of the tow truck before impact was

incorrect. He explained that Gebke’s methodology was sound, but opined that Gebke used

an incorrect drag factor coefficient of friction in his calculations. Consequently, Gebke’s

calculation of the defendant’s preimpact speed was higher. Semke estimated that the tow

truck’s speed before impact was between 38 and 47 miles per hour.

¶ 26 Ronald Henson, the defendant’s expert in retrograde extrapolation and collection and

analysis procedures for blood testing, testified as follows. Henson testified that the margin

-7-
of error within a chromatograph could generally be as much as 0.005. He believed that

performing two tests would not remove that error because the same machine was used in

both tests and the control samples used to calibrate the device usually had a 0.002 margin of

error. He claimed that the use of disinfecting swabs containing ethanol could skew the results

of the blood test. He noted that he was familiar with independent studies conducted on the

disinfecting swabs used in the Illinois State Police DUI kits, and the results from those

studies indicated that the residual liquid squeezed out of the swabs contained an ethanol

concentration of 0.005.

¶ 27 Henson testified that bacteria could also affect the reading unless precautions were taken

to safeguard against contamination in regard to the collection tube and handling of the

sample. He explained that the documents he reviewed (and which were relied upon by Dr.

Long) provided no explanation regarding the precautions taken when the blood sample was

handled. He further explained that the Illinois State Police crime laboratory does not test for

any type of microbial contamination or any type of bacterial contamination within the blood

sample. He opined that contamination could skew the results of the blood testing by more

than 0.02. He also testified that endogenous ethanol in the amount of 0.001 to 0.003 could

exist in a person who had consumed no alcohol.

¶ 28 The defendant rested. The State recalled Dr. Long to rebut Henson’s testimony

concerning the blood test performed by the Illinois State Police. Dr. Long testified that

Henson made a mathematical error in calculating the amount of endogenous alcohol that

could naturally occur in a person’s system. Dr. Long believed that the actual figure of

0.00016 grams was an insignificant number. Based on his review of the Illinois State Police

laboratory reports and his training and experience in the field of toxicology, he did not have

any doubt regarding the validity of the 0.02 reading in this case. Further, he noted that even

if Henson’s testimony regarding the 0.005 margin of error in chromatograph machines was

accepted, the differences in the retrograde-extrapolation calculations would be insignificant.

¶ 29 Following closing arguments, the trial court stated as follows regarding its decision in

the case:

“Without much comment on the strengths and weakness[es] of the case presented or

the evidence presented I would say this, that having taken all that as true and

understanding the obligation on the Court, the law is the law no matter which way it goes

in favor of the State or in favor of the Defendant as applied and interpreted as the trier

of fact.

I do state again that I am familiar with the law applicable in this case and have

reviewed it again during this trial, pre-trial and again during the trial. I am also satisfied

that I understand the evidence and I have reviewed it and considered it, and it is my

judgment that the State has met the burden of proof and the Defendant is found guilty as

charged.”

¶ 30 On March 30, 2011, the defendant filed a motion for judgment of acquittal or in the

alternative for a new trial, arguing, inter alia, that the State failed to prove the defendant

guilty beyond a reasonable doubt (1) of driving under the influence of alcohol, (2) of having

a BAC of 0.08 or more, and (3) of driving under the influence of alcohol and thereby

-8-
proximately causing the deaths of Donald Legens, Sr., and Donald Legens, Jr.

¶ 31 On April 27, 2011, the trial court denied the defendant’s motion and stated as follows:

“I did give quite a bit of credibility or credence to the expert testimony. I thought in

their individual presentation all of the experts, the defense and the State, had something

cogent to say and material to offer.

But I am satisfied with *** the science presented by the State’s expert and his

thorough knowledge of it. I do think that *** was even demonstrated by his correction

on the defense’s witness which–wherein he pointed out an error in his calculations which

was valid.

The issue of the extrapolation is–when presented with the right evidentiary

substructure, is valid and has been accepted by a lot of Courts. There are ways it can be

weakened and ways it can be attacked and ways that it would be found insufficient. But

the overview that I had, the opinion that resulted were that the corroborating

circumstances, corroborating testimony was such that I did give credence to his

interpretation.

The lay witnesses’ testimony I did not find to be so much impeached that it would

become unreliable. I think it was sufficient for the points offered.

*** I didn’t find the *** evidence *** as to the possible ramifications of the innate

alcohol content in the defendant’s system or the alleged skewing of results because of a

swab or draw contamination. I accepted, obviously, the summary of Dr. Long and the

other evidence as presented in the case that *** did not play a significant part in this

matter.”

Thereafter, the trial court denied the defendant’s motion.

¶ 32 On May 25, 2011, the sentencing hearing was held. The trial court noted that the two

convictions for aggravated DUI and the two convictions for aggravated driving with a BAC

of 0.08 or more merged for sentencing purposes. The court also noted that the two

convictions for failure to report also merged for sentencing. The defendant offered mitigating

evidence in the form of testimony and presented a statement in allocution. In announcing the

defendant’s sentence, the trial court noted, as factors in mitigation, that (1) the defendant had

“no great history of prior criminal activity” and (2) the defendant was unlikely to commit

another crime. Further, the court noted, as factors in aggravation, that the sentence needed

to deter others from committing the same crime. The court noted that the defendant could

receive probation under extraordinary circumstances; however, it concluded that

extraordinary circumstances were not present in this case.

¶ 33 Thereafter, the trial court sentenced the defendant to 10 years in prison on the aggravatedDUI convictions and 5 years in prison on the failure-to-report convictions. (The court

initially sentenced him to 11 years on the aggravated-DUI conviction, but subsequently

entered a corrected orderreducing the sentence to 10 years.) The sentence for failure to report

was to run consecutively to the aggravated-DUI sentence.

¶ 34 On June 10, 2011, the defendant filed a motion to modify and reduce sentence, arguing

that the trial court erred at sentencing by denying his request for probation and by failing to

-9-
consider all the mitigating factors set forth by him at the sentencing hearing. On July 5, 2011,

the trial court denied the defendant’s motion. The defendant appeals.

¶ 35 First, the defendant argues the State failed to prove beyond a reasonable doubt that he had

a BAC of 0.08 or more. Specifically, he argues that retrograde extrapolation “is in no way

reliable enough to prove intoxication beyond a reasonable doubt.”

¶ 36 The relevant inquiry when reviewing a challenge to the sufficiency of the evidence is

whether, viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt.

People v. Johnson, 392 Ill. App. 3d 127, 130 (2009). A reviewing court will not reverse a

criminal conviction unless the evidence was so unsatisfactory, improbable, or implausible

as to justify any reasonable doubt as to the defendant’s guilt. People v. Latto, 304 Ill. App.

3d 791, 798 (1999). “The trier of fact has the responsibility to determine the credibility of

witnesses and the weight given to their testimony, to resolve conflicts in the evidence, and

to draw reasonable inferences from that evidence.” Johnson, 392 Ill. App. 3d at 130.

¶ 37 Applying this standard, we find that the evidence was sufficient to support the

defendant’s convictions for aggravated driving with a blood-alcohol level of 0.08 or more.

Although the defendant admits that it is well recognized that Illinois courts have allowed

experts to testify about the theory of retrograde extrapolation, he argues that retrograde

extrapolation is unreliable to prove intoxication beyond a reasonable doubt. In support of this

position, he cites Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001) (en banc), a Texas

court of appeals case that raised concerns about relying on the theory of retrograde

extrapolation.

¶ 38 However, we note that this court in People v. Barham, 337 Ill. App. 3d 1121, 1133-34

(2003), determined that evidence regarding retrograde extrapolation is admissible as long as

it is presented by a qualified expert. In Barham, 337 Ill. App. 3d at 1134, this court

concluded that the State’s expert was not qualified to explain retrograde extrapolation

because no evidence was presented to indicate that she was qualified by education, training,

or experience. Therefore, this court concluded that the State failed to present any qualified

witness “to render an opinion that [retrograde] extrapolation [was] a generally accepted

method in the appropriate scientific community, that it produce[d] valid results, and that it

could be applied to defendant in this case.” Id. Because retrograde extrapolation was a

complex scientific evaluation, “[e]xpert testimony [was] required initially to establish

reliability and then its admissibility and relevance to [the] case.” Id.

¶ 39 In the present case, Dr. Long’s testimony on the theory of retrograde extrapolation was

necessary to prove the defendant’s BAC at the time of the crash because the defendant left

the scene of the crash and remained in his residence until the police were able to execute a

search warrant, which did not occur until approximatelyseven hours after the crash. Dr. Long

testified as to his qualifications concerning retrograde extrapolation. He explained that he had

been the director of the St. Louis University School of Medicine forensic toxicology

laboratory for over 20 years. Prior to that, he was employed as the chief toxicologist for the

Illinois State Police and was also employed as a medical examiner for 11 years. He had a

bachelor’s degree in chemistry, a master’s degree in medical biology, a master’s degree in

-10-
pharmacology toxicology, and a Ph.D. in toxicology. He was also board certified in

toxicology. Based on these credentials, the trial court concluded that he was qualified to

testify as an expert in the field of toxicology.

¶ 40 Dr. Long then testified that the formula that he used to calculate retrograde extrapolation

was generally accepted in the field of toxicology. He testified that he reviewed the accident

report, the depositions taken in the civil case regarding this crash, the police report, the video

interview with the defendant, the Illinois State Police laboratory report, which indicated that

the defendant’s BAC was 0.020 approximately 10 hours following the crash, and the

coroner’s report. He explained the theory behind retrograde extrapolation and the formula

used to calculate it. He set forth his calculations for determining that the defendant’s BAC

was 0.20 at the time of the crash. He noted that he relied on the Illinois State Police’s

laboratory report in making his calculations, and he had no reason to believe that the tests

conducted by the Illinois State Police were contaminated or unreliable.

¶ 41 The record indicates that the trial court was satisfied with Dr. Long’s qualifications, the

science behind the theory of retrograde extrapolation, and Dr. Long’s understanding of the

subject. Specifically, the trial court noted that the issue of retrograde extrapolation was

accepted as valid by many courts when it was presented with the right evidentiary

substructure. The court also noted that it was satisfied with Dr. Long’s thorough knowledge

of the theory. From our review of the record, we find no reason to disturb the trial court’s

decision to rely on the testimony of Dr. Long and the theory of retrograde extrapolation.

Accordingly, the trial court correctly determined that the State proved the defendant guilty

beyond a reasonable doubt of two counts of aggravated driving with a blood-alcohol level

of 0.08 or more resulting in two deaths.

¶ 42 Next, the defendant argues that the State failed to prove beyond a reasonable doubt that

he was intoxicated at the time of the crash because none of the evidence presented at trial

revealed that he exhibited any signs of intoxication. The defendant notes that no witness,

aside from Dr. Long, testified that he was intoxicated or displayed any signs consistent with

being intoxicated. The State counters that it was not required to show signs of intoxication

because the defendant was convicted of driving with a blood-alcohol concentration of more

than 0.08 under section 11-501(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(1)

(West 2008)), a strict-liability violation. Further, the State argues that overwhelming

evidence was presented to support Dr. Long’s conclusion that the defendant was intoxicated

at the time of the crash. We agree with the State.

¶ 43 Here, the evidence presented at trial was sufficient to support Dr. Long’s testimony that

the defendant was intoxicated at the time of the crash. First, the record reveals that the

defendant left the scene of the crash and drove several miles with the entire front of his truck

and headlights missing. He remembered hitting something, but was unaware that he hit a

vehicle with enough force to push it 364 feet until it rested on a dirt embankment. Although

he denied being intoxicated, he admitted to drinking two or three drinks while he played

pool.

¶ 44 Hildreth, the defendant’s friend, testified that the defendant repeatedly stated that he was

intoxicated when they were talking on the phone on the night of the crash. She characterized

-11-
the defendant’s speech as slurred and stated that “he was all over the place.” Mitcherson, a

member of the defendant’s pool team, indicated that he had observed the defendant drinking

mixed drinks throughout the night. He also indicated that he did not remember ever seeing

the defendant without a drink in his hand. Although he observed the defendant drinking, he

was unsure if the defendant was intoxicated. Eddleman, who was facing a dramshop lawsuit

as a result of this incident, testified that it appeared the defendant had a few drinks, but he

was not “overly intoxicated” to the point that he would not serve him. The defendant was

served at least one drink while he was at Eddleman’s bar.

¶ 45 The evidence also indicated that when the police interviewed the defendant

approximately seven hours after the crash, they detected a faint odor of alcohol on his breath.

Further, they described the defendant as having red and/or glassy eyes and a confused

appearance. Although the witnesses indicated that the defendant did not exhibit any overt

signs consistent with intoxication, the trial court determined that he was guilty of driving

under the influence of alcohol on the night of the crash. “On appeal, we will not substitute

our judgment for that of a trier of fact in cases where the facts could lead to either of two

inferences, unless the inference accepted by the fact finder is inherently impossible or

unreasonable.” People v. Lemke, 349 Ill. App. 3d 391, 398 (2004). Because we do not find

the trial court’s findings inherently impossible or unreasonable, we find that the State proved

the defendant guilty beyond a reasonable doubt of two counts of aggravated DUI resulting

in two deaths.

¶ 46 The defendant also argues that Dr. Long improperly relied on the Illinois State Police

laboratory report, which indicated that his BAC was 0.020 approximately10 hours following

the crash. Specifically, the defendant argues that Dr. Long was unable to entirely eliminate

the possibilitythat the blood sample might be contaminated. We disagree with the defendant.

¶ 47 The defendant presented expert testimony indicating that the chromatograph could have

a margin of error of as much as 0.005 and contamination of the blood sample could result if

the proper procedures for handling the sample were not observed. The defendant’s expert

noted that the laboratory report did not indicate whether these safeguards were taken with

regard to the defendant’s blood sample. In contrast, Dr. Long testified that he had no reason

to question the validity of the 0.020 analysis of the defendant’s blood. He indicated that a

margin of error in the BAC test was insignificant because the blood sample was run in the

duplicate, which resulted in a 0.00001 difference (the first reading was 0.01999 and the

second was 0.02000). He testified that even if the 0.005 margin of error in the chromatograph

machine was accepted, the difference to the retrograde-extrapolation calculation would be

insignificant. The trial court accepted the testimony of Dr. Long and rejected Henson’s

testimony concerning the possible contamination of the blood sample. The court found Dr.

Long’s testimony credible and stated it was satisfied with his thorough knowledge of the

subject. As previously explained, determinations of witness credibility and resolution of

conflicts in evidence are functions for the trier of fact. Therefore, we conclude that sufficient

evidence existed to justify the trial court’s finding that the defendant was guilty of aggravated

driving while under the influence of alcohol resulting in two deaths and aggravated driving

with a blood-alcohol level of 0.08 or more resulting in two deaths.

¶ 48 The defendant further argues that the State failed to prove beyond a reasonable doubt that

-12-
his intoxication or impairment was the proximate cause of the deaths of Donald Legens, Sr.,

and Donald Legens, Jr. Specifically, the defendant argues that Donald Legens, Sr.’s actions

in dangerously leaving his vehicle in the middle of the road without any headlights was the

proximate cause of the crash. We disagree with the defendant.

¶ 49 As explained above, challenges to the sufficiency of the evidence in criminal cases are

reviewed by determining whether the evidence is so unsatisfactory, improbable, or

implausible as to create a reasonable doubt as to the defendant’s guilt. Latto, 304 Ill. App.

3d at 798. The offense of aggravated DUI is committed when a person’s driving under the

influence is a proximate cause of the victim’s injuries, not the sole and immediate cause of

the injuries. People v. Merritt, 343 Ill. App. 3d 442, 448 (2003). “Proximate cause includes

both cause in fact and legal cause.” Johnson, 392 Ill. App. 3d at 131. In the present case, the

defendant argues the State failed to present sufficient evidence to prove cause-in-fact

proximate cause. The cause-in-fact requirement of proximate cause is present when

reasonable certainty exists that the defendant’s actions caused the injury or damage. Id.

¶ 50 Here, the defendant was found guilty of two counts of aggravated driving with a BAC

of 0.08 or more resulting in two deaths and two counts of aggravated driving under the

influence of alcohol resulting in two deaths. Section 11-501(a)(1) of the Illinois Vehicle

Code (625 ILCS 5/11-501(a)(1) (West 2008)) provides that a person shall not drive or be in

actual physical control of any vehicle while the alcohol concentration in the person’s blood

is 00.08 or more. Section 11-501(a)(1)is a strict-liability violation and does not require proof

of impairment. People v. Martin, 2011 IL 109102, ¶ 26. Because proof of impairment is not

required under this section, proximate cause requires the State to show a causal link between

the physical act of driving and another person’s death. Id. However, the State may be

required to prove impairment under certain aggravated-DUI charges. “[W]hether proof of

impairment is necessary to sustain a conviction for aggravated DUI under section 11-

501(d)(1)(F) depends uponwhetherimpairment is an element of the underlying misdemeanor

DUI.” Id. A person commits aggravated DUI under section 11-501(d)(1)(F) of the Illinois

Vehicle Code (625 ILCS 5/11-501(d)(1)(F) (West 2008)) when the person is driving a

vehicle under the influence of alcohol and that results in the death of another person. The

DUI violation must be the proximate cause of the death. 625 ILCS 5/11-501(d)(1)(F) (West

2008). When the underlying misdemeanor DUIis driving under the influence of alcohol (625

ILCS 5/11-501(a)(2) (West 2008)), impairment is an element of the offense. Because

impairment is an element of this offense, the State must show that impairment was a

proximate cause of the death. See Martin, 2011 IL 109102, ¶ 26.

¶ 51 In this case, the defendant argues that the State failed to prove that his actions of driving

under the influence of alcohol or driving with a BAC of 0.08 or more was the proximate

cause of the deaths of Donald Legens, Sr., and Donald Legens, Jr. The defendant notes that

Donald Legens, Sr., created a dangerous situation by parking his darkly colored vehicle on

the road with no headlights at night. In support of his argument, the defendant points to

Yount’s testimony that she did not observe the SUV until she was two car lengths away, and

she was forced to swerve into another lane to avoid hitting it. However, as noted by the trial

court, this fact also indicates the opposite, i.e., that a sober driver, driving the speed limit,

had time to react and take evasive action. The record reveals that the defendant failed to take

-13-
any evasive action to avoid the crash. The State’s accident reconstructionist testified that the

defendant never applied his brakes, his preimpact speed was a minimum of 50 miles per

hour, and he pushed the Kia 364 feet until it was stopped by a dirt embankment. The

defendant admitted to his friend that he was drunk and that he had blacked out. Several

witnesses testified that he was drinking on the night of the accident. As previously explained,

the State presented sufficient evidence to prove the defendant was intoxicated at the time of

the crash. Accordingly, the State presented sufficient evidence to prove beyond a reasonable

doubt that the defendant’s actions of physically driving the tow truck and of driving under

the influence of alcohol caused the deaths of Donald Legens, Sr., and Donald Legens, Jr.

¶ 52 The defendant also argues that his sentence was an abuse of discretion. Specifically, he

argues the trial court failed to consider all the mitigating factors that were presented by him

during sentencing, and the court abused its discretion by denying his request for probation

as he proved extraordinary circumstances existed to justify a sentence of probation.

¶ 53 We initially note that the State filed a motion to cite additional authority, which this court

ordered taken with the case on May 4, 2012. In its motion, the State sought permission to cite

People v. Hill, 2012 IL App (5th) 100536, as support for its argument that this case did not

warrant a sentence of probation. We hereby grant the State’s motion and consider the Hill

case when determining whether the trial court abused its discretion in denying the

defendant’s request for probation.

¶ 54 The legislature has established the range of sentences permissible for a particular offense.

People v. Fern, 189 Ill. 2d 48, 53 (1999). “Within that statutory range, the trial court is

charged with fashioning a sentence based upon the particular circumstances of the individual

case, including the nature of the offense and the character of the defendant.” Id. at 55. A trial

court’s sentencing determination is given great deference because that court, having observed

the defendant and the proceedings, is in a better position to consider the particular

circumstances of each case, such as the defendant’s credibility, demeanor, general moral

character, mentality, social environment, and habits. People v. Winningham, 391 Ill. App. 3d

476, 485 (2009). Therefore, the reviewing court must proceed with great caution when

considering the trial court’s sentence, and it must not substitute its own judgment for that of

the trial court just because it would have weighed the factors differently. Id. “A sentence

within statutory limits will not be deemed excessive unless it is greatly at variance with the

spirit and purpose of the law or manifestly disproportionate to the nature of the offense.”

Fern, 189 Ill. 2d at 54. Accordingly, a reviewing court may not reduce the defendant’s

sentence unless the sentence constitutes an abuse of discretion. Winningham, 391 Ill. App.

3d at 485.

¶ 55 Pursuant to section 11-501(d)(2)(G)(ii) of the Illinois Vehicle Code (625 ILCS 5/11-

501(d)(2)(G)(ii) (West 2010)), a person convicted of aggravated DUI, which resulted in the

death of two or more persons, shall be sentenced to a term of imprisonment of not less than

6 years and not more than 28 years unless the court determines that extraordinary

circumstances exist and require probation.

¶ 56 In the instant case, the defendant argued that seven factors in mitigation were present in

this case, i.e., he did not contemplate that his criminal conduct would cause or threaten

-14-
serious physical harm to another, substantial grounds existed to justify his criminal conduct,

he cooperated with a civil suit brought by the victim’s wife as a result of this crash, he had

no history of prior delinquency or criminal activity, his criminal conduct was the result of

circumstances unlikely to reoccur, his character and attitude indicated that he was unlikely

to commit another crime, and he was particularly likely to comply with the conditions of

probation.

¶ 57 After reviewing all the evidence, the trial court determined that not “much of what [the

defendant argued] really [resulted] in mitigation.” Instead, the court considered, as factors

in mitigation, that the defendant had no history of prior criminal activity and that he was

unlikelyto commit another crime. After carefullyconsidering the circumstances surrounding

the accident, the mitigating and aggravating factors, the arguments concerning sentencing

alternatives, and the presentence report, the court sentenced the defendant to 10 years’

imprisonment on the aggravated-DUI convictions. Given our highly deferential standard of

review, we conclude that the trial court’s consideration of only two of the seven mitigating

factors presented by the defendant was not an abuse of discretion.

¶ 58 Also, during sentencing, the defendant requested that the trial court sentence him to

probation because he proved the existence of extraordinary circumstances. Specifically, the

defendant noted that he was not the sole cause of the vehicle crash. Instead, the defendant

argues that Donald Legens, Sr.’s decision to take his infant son out at midnight and park his

vehicle in the road with no illumination was a factor in the accident. He also noted that the

evidence revealed that Legens was intoxicated and had cocaine in his system at the time of

the crash.

¶ 59 As explained above, the trial court can impose a sentence of probation for an aggravated

DUIinvolving a death when extraordinarycircumstances are present.However,the existence

of extraordinary circumstances is rare. Winningham, 391 Ill. App. 3d at 483. “The

extraordinary circumstances required for probation are matters for the trial court’s

discretion.” Hill, 2012 IL App (5th) 100536, ¶ 28. In Hill, 2012 IL App (5th) 100536, ¶ 27,

the defendant argued that extraordinary circumstances, i.e., he was induced to drink alcohol

and drive while intoxicated at the victim’s suggestion, warranted that he receive a sentence

of probation. This court concluded that extraordinary circumstances were lacking and that

the defendant’s “attempt to blame the victim for his own choices *** [was] without merit

and *** not worthy as a mitigating factor.” Id. ¶ 28.

¶ 60 After carefully reviewing the record, we agree with the trial court that extraordinary

circumstances are lacking in this case. The defendant’s decision to drive while intoxicated

resulted in the deaths of Donald Legens, Sr., and Donald Legens, Jr. The evidence indicated

that the defendant did not take any evasive action to avoid the crash, his tow truck pushed

the Kia 364 feet before it rested on an embankment, he did not remember hitting a vehicle,

and then he drove off without checking on the occupants of the vehicle. The fact that Donald

Legens, Sr., was intoxicated and had parked his vehicle in the road with no illumination does

not constitute extraordinary circumstances to warrant the defendant receiving a sentence of

probation. Therefore, we find that the trial court’s sentence of 10 years’ imprisonment does

not amount to an abuse of discretion.

-15-
¶ 61 For the foregoing reasons, the judgment of the circuit court of Madison County is hereby

affirmed.

¶ 62 Affirmed.

-16-