## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Hall, 2011 IL App (2d) 100262

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. DAVI D M. HAL L , Def

endant- Appellee

.

District & N o. Second District Docke t No. 2-10-0262

Filed Dec ember 9, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n a DUI prosec ution, the trial court’s order barr ing the use of bloo d alcohol test results on the g round that defe ndan t ’s b l ood had not been collecte d and stored in compliance with the applicabl e regulations, including the require ment that the tubes used c ontain anticoagulant and
prese rvative, was aff

irmed, but the dismiss al of one count of DUI on speedy trial and compulsory joinder g rounds was reve rsed wher e there

was no indication defe ndant ever made an aff irmative reque st for a speedy trial.

Dec ision Under Review Appea l from the Circuit Court of L ake County
, Nos. 08-CM-24 9 7
, 0 8- T R- 5 6 8 7 1
, 08-TR-56872, 08-DT- 1274, 08-TR-449 3 5 4 ; th e H o n

. F

. K e it h Br own, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d.Counsel on

Appea l L isa Madig an, Attorney Gene ral, of Chic ago (Michae l A. Scodro, Solicitor Gene ral, Michae l M. Glick, and Retha R. Stott s, Assistant Attorney s Gene ral, of c ounsel), for the People.

Doug las E. Z eit and Br ian E. King
, both of L aw Offic es of Do ug las E. Z eit, of Waukeg an, for

appellee

.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices B owman and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 The S tate appeals from the trial court’s order s barr ing the use of the blood a lcohol test results of defe ndant, David M. Hall, and dismiss ing one count of driving under the influence (DU I ) (625 I L CS 5/11-501(a) (1) (West 2006)). We aff irm in part, reve rse in part, and

rema nd.

¶ 2 I . BA CKGROUND ¶ 3 Def

endant was arr ested on April 26, 2008, and char g ed with DUI (influenc e of alcohol) (625 I L CS 5/11-501(a) (2) (West 2006)), impro p er t u rn (625 I L CS 5/11-801(a) (1) (West 2006)), improper lane usag e (625 I L CS 5/11-709(a) (Wes t 2 0 0 6)), and resisting a peac e office r (720 I L CS 5/31-1 (West 2006)). During the course of the arr est, the arr esting office r, Offic er Goldsmith of the Ver non Hills police depar

tment, sprayed d ef

endant with pepper spray and pulled defe ndant from his vehicle. A resc ue squad was called t o t h e s ce n e, and

emer g ency medical t ec h nicians tended to defe ndant for about 25 minutes. Def endant was then taken to Condell Medica l Center for treatment of his left eye, which had taken the brunt of the pepper spray

. Whil e at the hospital, defe ndant was hooked up to an elec troca rdiog ram, which detec ted a rapid hear t rate. Be fore defe ndant was moved from the emer g ency room and admitted to the hospital, Goldsmith told him to come to the police station to pick up his citations afte r he was rele ased. Goldsmith then left, and defe ndant was moved to a hospital
room, wher e, eventua lly
, sever al vials of his blood wer e drawn to be tested for hear t-related issues. The following afte rnoon, defe ndant was rele ased from the hospital and he picked up his citations at the police station. ¶ 4 The I llinois Attorney Gene ral took over the prosec ution of this case , as the L ake County State’s Attorney deter

mined that his office had a conflict of interest. An assistant Attorney 1

Def end ant is a La ke Count y cir cui t c our t j udge. 1

-2-Gene ral, with the help of an assistant State’s At torney , lear ned that sever al vials of defe ndant’s blood still rema ined at Condell. On May 14, 2008, the trial court order ed Condell
to rele ase the blood samples to the Ver non Hills police depar

tment for transportation to the I llinois State Police (I SP) crime lab for testing. An I SP t ec h n i ci an tested the blood for 2 alcohol conce ntration on May 15 and repor ted a blood alcohol conce ntration (B AC) of 0.1 07. This information was tender ed to defe ndant on J une 11, but the test results rema ined seale d under c ourt order

. ¶ 5 In April 2009, defe ndant filed a s er i es o f t h ree motions to bar the use of the BA C test results and defe ndant’s medical rec ords that the State had obtained. After hear ing argument

on September 28, 2009, the trial court denied defe ndant’s motion to bar the use of the medical rec ords. The court also denied the motion to bar the use of the BA C test results, in order to gran t t h e State “an opportunity to bring in their witnesses and show a complete fac tual foundation.” Defe ndant would be giv en t h e opportunit y to rene w hi s motion at t he end of the State’s offe r of pr oof. ¶ 6 On that same day
, the State filed an information char g ing defe ndant with DUI (B AC of 0.08 or more) (6 2 5 I L C S 5/11-501(a) (1) (West 2006)). Def endant then filed a motion to dismiss that char g e on compulsory joinder and speedy trial g rounds, pursuant to section 103- 5 of the Code of

Criminal Procedure of 1963 (725 I L CS 5/ 103-5 (West 2006)). ¶ 7 The trial court held an evidentiar y hear ing on defe ndant’ s motion to bar the use of the BA C test results on Marc h 1, 2010. Th e S t at e ca l l ed a series of witnesses from Condell Medica l Center, the Ver non Hills police depar

tment, and the I SP crime lab to t es t i fy
reg arding the draw ing, handling
, storag e, transportation, and testing of defe ndant’s blood. Def endant called one witness, a pharma ci s t who testified about the possibili ty of “fa lse positive” re s u l ts in blood alcohol tests, espec ially wher e no prese rvative was added to the b l o o d sample. Following the hear ing, the trial court gra nted defendant’s moti on to bar t h e

use of BA C evidenc e, finding that the blood had not been collecte d and stored in compliance with applicable regulations contained in the I llinois Administrative Code. 20 I ll. Adm. Code 1286.320 (2011). The court listed all four orig inal case numbers in the caption of its written order and enter ed separ ate minute order s in the resisting arr est and traff ic case s, stating that “blood results *** shall not be admissible in this matter.” After denyin g t h e S t at e’s subsequent motion for rec onsideration, the court grante d defe ndant’s motion to dismiss the char g e of DUI (B AC of 0.08 or more) on compulsory joinder and speedy trial grounds. The State filed a c ertifica

te of impairment, a

nd this appeal followe d.

Nei the r the Sta te nor def

end ant ra is ed the is sue of the ti m el ine ss of the pro cur ement of the 2 blo od samples for te st ing. T he app ar ent del ay was due in par t to the fa ct tha t Gold smi t h n e i the r

re que st ed tha t a sample be ta ken nor was he pre sen t when the sample tha t was ult imatel y te st ed was ta ken. T he Sta te fi rs t sou ght a cou rt ord er t o p r e s e r ve the blo od samples and to re le ase the m for
t e s t i ng on Ma y 2. However, al l Lake Count y j udges re cus ed the m sel ves fr om the cas e, and the
sup re m e c our t a ssi gned J udge Bro wn t o t he c ase on M ay 5.

-3-¶ 8 I I . ANALYSI S

¶ 9 We first note that we ha ve take n with the case defe ndant’s mot ion to strike portions of the State’s reply brief. Def endant alleg es that the St ate makes sever al arg uments that are waived, frivolous, not supported by the rec ord, and/or not supported by leg al authority

. We d en y the m otion to strike, but we will disreg ard any arguments contained in that brief t h at

are inappropriately

made. ¶ 10 The State first contends that the trial court err ed in excluding the BAC ev i d en ce . In g ener al, this court will revie w a trial court’s ruling on a motion in limine for an abuse of discretion. People v. Morris
, 394 I ll App. 3d 678, 680 (2009). Howeve r, wher e the issue on appea l is a question of law, we will g rant a de novo revie w. Morris
, 394 I ll. App. 3d at 680. The int erpr etation of an adminis trative regulation or rule is a q u estion of l aw to which the principles of statutory

interpre tation apply

. Morris , 394 I ll. App. 3d at 680. ¶ 11 S ection 11-501.2 of the I llinois Vehicle Code (625 I L CS 5/11 -5 0 1

. 2 (W es t 2 0 0 6 ))
g overns the admissibili ty of BA C test results in DUI prosec utions. Morris
, 394 I ll. App. 3d
at 681. To be considere d valid under the provisions of that section, a blood a naly sis “ shall 3 have been perf

o r me d a c c o r d in g to standards promulg ated by the Depa rtment of State Police.” 625 I L CS 5/11-501.2(a) (1) (West 2006). Pursuant to the rele vant port i o n s of section 1286.320 of title 20 of the Administrative Code: “The following proce dures shall be used to obtain a blood sample from a subject to deter mine the alcohol conce ntration, or prese nce of o t h er drug s or intox icating compounds: (a) The blood sample shall be collected in the presence of t he arresting office r, *** or an a g ency

employ ee who can a

uthenticate the sample.
* * * (d) Of fice rs shall use DUI

kits provided by

the Depa rtment, if possible. I f kits

are not available
, office rs may submit two standard grey top vacuum tubes. (Pursuant to g ener ally acc epted industry standards, g rey top vacuum tubes contain an anticoagulant and pre servative.)” 20 I ll. Adm. Code 1286.320 (2011).
Fa ilure to comply with section 11-501.2 and the reg ulations promulg ated there under rende rs the re sults of chemica l tests inadmissi ble in a DUI prosec ution. Morris
, 394 I ll. App. 3d at 681. ¶ 12 The testimony prese nted at the evidentiar y hear ing reve aled no evidenc e that either the

arr esting office r or any other ag ency employ ee was prese nt when defe ndant’s blood wa s drawn. J uliana Gonzales, the C o n d el l n urse who drew defe ndant’s blood pursuant to the order of Dr. Murra

y Kee ne, testified that she drew the blood into sever al container s, one of which had a purple top. J oan DuVall, the labo ra t o ry manag er at Condell, testified that,

See al so I ll

. Evid. R. 101 (e ff

. J an. 1, 2011 ) (“ A st at uto ry rul e of eviden ce is ef fe ct ive unl ess 3 in con fl ic t wit h a rul e or a dec is ion of the I ll ino is Supr eme Cour t.” ). T o our knowled ge, the re is no sup re m e cour t rul e or deci si on that is in conf li ct wit h the decl ar at ion on admissi bil it y con ta ine d in

sec ti on 1 1- 501. 2.

-4-acc ording to standard industry -wide color codes, a purple top on a sample tube signifie s that

the tube contains an anticoagulant. J ennife r Poltorak, a tox icolog ist at the I SP crime lab with bache lor’s deg ree s in chemistry and fore nsic scienc e, testified that she rec eived three tubes of defe ndant’s blood for testing, including one tube with a p urple stopper. She tested two

sam p l es from the purple-toppe d tube, using a head space g as chromatogr aph; the aver ag e result reve aled “an ethanol level of 0.107 g rams per deciliter.” Polt o ra k testified that the ethanol re ad i n g would not have been aff ecte d by the prese nce of methanol in the blood sample. She also testified that it was not unusua l to perf orm a BA C te st on a

blood sample that was 18 or 19 day s old. Def endant’ s only witness, J ames O’Donnell, was a pharma cist and professor with bache lor’s and doctorate degr ees in pharma cy and a master’ s deg ree in nutrition. Testifying as an expert in pharma colog y , O’Donne ll opined that the tubes of defe ndant’s blood wer e tainted beca use of a lack of deter

mination of proper storag e and the “sig nificant probability ” that microbial g rowth in blood untreate d with preser vative would lead to the s y

nthesis of alcohol in t h e samples and would cause a “false posit ive” reading

. Preser vatives do not completely kill such bacter ia but limittheir g rowth. ¶ 13 Section 11-501.2 was intended to ensure the reliability of evidenc e introduced i n DU I
prosec utions. People v. Emrich
, 113 I ll. 2d 343, 349 (1986). A “valid” blood analy sis under this section “shall have been perf ormed acc ording to standard s p rom ulga ted by the Depa rtment of State Police.” 625 I L CS 5/11-501.2(a) (1) (West 2006). As noted, the failure
to comply with section 11-501.2 and the regulations promulg ated there under rende rs the results of chemica l tests inadmissible in a DUI prosec ution. Emrich
, 113 I ll. 2d at 351. The S t at e ad mits that it did not fully comply with subsections (a) and (d) of section 1286.320. Howeve r, it argues that strict compliance with the provisions of the Administrative Code is
not require d. Relying on this court’s opinion in People v. Ebert
, 401 I ll. App. 3d 958 (2010), the State argues that the BA C test results should be admitted as long as the testing proce dures substantially

complied with the re gulations. ¶ 14 We first addre ss the State’s noncompliance with subsection (d), whic h commands t hat the tubes used to c ontain the blood f or testing “conta in a

n anticoagulant and prese rvative.” 20 I ll. Adm. Code 1286.320(d). Her e, while there was evidenc e that the purple-toppe d tube from which the blo o d wa s t ak en for the BA C test contained an anticoagulant, there is no evidenc e that the tube contained the require d prese rvative. There was 50% compliance with the require ment that the tube contain both an anticoagulant and prese rvative; howeve r, there

was zero compliance with the require ment that the tube contain a prese rvative. This is a failure to comply , not “substantial” complianc e. ¶ 15 The State’s relianc e on Ebert is overblown in this instance. In Ebert
, which involved the i s s u e o f whether a police office r failed to comply with reg ulations requiring him t o continuously observe the defe ndant for at least 20 minutes befor e administering a breath test, this court stated: “The standards exis t, not for their own sakes, but in service of the truth-see king function, which they promote by ensuring that blood, brea th, and urine tests are conducte d in a

manner that produce s reliable results. I f the standards are to serve this purpose, the rule of substantial compliance must be one that neith er b l ithely ignor es the standards nor enfor ces them in a purely rote manner

. W e are therefore reluctant to relax the standards

-5-when doing so would require inquiry into the scientific basis for a particular standard

. Howeve r, when it is clea

r that a particula

r deviation from the mandated proce dures does
not perta in to a matter

of scienc e, a court is perf ectly competent to deter

mine whether
, in a g iven case , the deviation compromised the integ rity of the testing process.” (Emphasis adde d.) Ebert , 401 I ll. App. 3d at 965. This court found that the purpose of the observation period at issue wa s to “document that the motorist does nothing that might impair the acc urac y of the breath te st,” such as vomit, belch, regurg itate, or place a fore ign object in his mouth. Ebert
, 401 I ll. App

. 3 d at 9 65. Howeve r, even though the office r did not observe the defe ndant for the require d 20 minutes, the defe ndant himself testified that he did not perf orm any of those ac t s

. “U n d er these circ umstances,” failure to strictly comply with the regulation “wa s de minimis .” Ebert
, 401 I ll. App. 3d at 965. ¶ 16 Her e, howeve r, the issue of whether the failure to include p re s er v at i v e i n the tube of blood used for defe ndant’s BA C test require s an inquiry into t h e scientific basis for the require ment. The blood was not tested for almost three wee ks afte r it was drawn; neither the trial court nor this court is “per fec tly competent,” in the words of E b er t , to deter mine whether the failure to include the prese rvative compromised the integ rity of the testing
proce ss. See Ebert
, 401 I ll. App. 3d at 965. The leg islature has assigned to the Depa rtment of State Police the responsibility to promulg ate standards for chemica l analy s es o f b l ood, urine, and breath and to “pre scribe regulations as nece ssary to implement” section 11-501.2. 625 I L CS 5/11-501.2(a) (1) (West 2006). We will not seco nd-guess the rea soning behind these regulations by considering conflictingtestimony reg ardingscientific matter s that are within the purv iew of the Depa rtment of State Police. We cannot conclude that failure to strictly comply with subsection (d) is de minimis

. Under the fac ts of this case , Ebert does not support the State’s arg

ument that substantial complianc e with the regulation would be sufficie nt. Instead, the Ebert analy sis reinfor ces our conclusion that the trial court did not err in excluding the B AC evidenc e bec ause the State did not comply with subsection (d). ¶ 17 Be cause of our dispositi on of this aspec t, we need not addre ss the i ssue of compliance with the require ment of subsection (a) that the office r or another ag ency repr esenta tive be
prese nt when the blood is drawn. ¶ 18 The State next contends that the t ri al co u rt er red in extending its ruling excluding the BA C results to the non-DUI counts. The standards promulg ated pursuant to section 11-501.2

are applicable only to the offense of DUI ; in a trial for any other off en s e, BA C test results

are to be rec eived in evidence under the usual standards g overning the admission of evidenc e. People v. Murphy
, 108 I ll. 2d 228, 236 (1985); see also Emrich
, 113 I ll. 2d at 351 (both involving the offe nse of rec kless homicide). This is true even if the DUI offe nse is tried with the other off

enses. See Emrich , 113 I ll. 2d at 351. ¶ 19 We note that, i n i t s m o t i o n t o rec onsider, the State moved t he court to clar ify its order “and permit evidenc e of the blood alcohol level on the rema ining DUI count alleg ing impairment.” Although the State cited to Murphy and Emrich in its motion and arguments, it did not addre ss the ex cl u s i o n o f t he BA C results vis-á-v is the non-DUI counts. A party cannot make an argument for the first time on appea l. P eo p l e v. Vasquez
, 388 I ll. App. 3d

-6-532, 543 (2009). An argument not raised in the trial court is forf eited on appea l, and we need
not revie w it. Vasquez
, 388 I ll. App. 3d at 543. The doctrine of forf eiture applies to the State as well as t o the defendant. People v. McKown
, 236 I l l

. 2d 278, 308 (2010) (citing People

v. W illiams
, 193 I ll. 2d 306, 347 (2 0 0 0 ))

. We find this argument forf eited and will not consider it. ¶ 20 The State next contends that the trial court err ed in dismiss ing the char g e of DUI (B AC of 0.08 or more ) on spee dy trial and c ompulsory

joinder g rounds. We agree

. “Compulsory joinder require s the S tate to bring multipl e char g es in a single
prosec ution. The char g es are tried toge ther unless the circ uit court d et er m i n es that a separ ate trial is require d in the interest of justice. [C itation.] Once a speedy -trial demand isfiled
, the multipl e char g es are subject to the same speedy-trial period. I f the char g es are require d to be broug ht in a single prosec ution, the speedy -trial period begins to run when the s peedy -trial demand is filed, ev en if the St ate br ings some of the charges at a later date .” (Empha ses adde d.) People v . Quigley , 183 I ll. 2d 1, 13 (1998).
Even if the char g es wer e subject to compulsory joinder, defe ndant did not file a speedy trial demand. ¶ 21 Section 103-5(b) require s that an individual on bail or rec og nizance, such as def endant, be tried within 160 day s from the date th at h e demands trial. 725 I L CS 5/103-5(b) (West 2006); People v. Murray
, 379 I ll. App. 3d 153, 160 (2008). Whil e there are no mag ic words require d to constitute a speedy trial demand, there must be some aff irmative statement reque sting a speedy trial. Murray
, 379 I ll. App. 3d at 160. Her e, ther e is no indication that defendant ever made any such aff irmative reque st for a speedy trial. As no demand was made, no speedy trial period, for either the initial char g es or the later- broug ht BA C c harg e, could run. The ref

ore, the trial court e rre d in gr antingdefe ndant’s motion to dism iss.

¶ 22 I I I . CONCLUSI ON ¶ 23 For these rea sons, the judgme nt of the circ uit court of L ake County barr ing the use of the BA C test results is aff

irmed; the judgme nt dismiss ing the char g e of DUI (B AC of 0.08 or more) is re verse d; and the ca use is rema

nded.

¶ 24 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

-7-