ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

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

DAVID M. HALL, Defendant-Appellee.

 District & No. Second District

Docket No. 2-10-0262

Filed December 9, 2011

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.)

In a DUI prosecution, the trial court’s order barring the use of blood

alcohol test results on the ground that defendant’s blood had not been

collected and stored in compliance with the applicable regulations,

including the requirement that the tubes used contain anticoagulant and

preservative, was affirmed, but the dismissal of one count of DUI on

speedy trial and compulsory joinder grounds was reversed where there

was no indication defendant ever made an affirmative request for a

speedy trial.

Decision Under 

Review

Appeal from the Circuit Court of Lake County, Nos. 08-CM-2497, 08-

TR-56871, 08-TR-56872, 08-DT-1274, 08-TR-449354; theHon. F.Keith

Brown, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on

Appeal

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, Michael M. Glick, and Retha R. Stotts, Assistant

Attorneys General, of counsel), for the People.

Douglas E. Zeit and Brian E. King, both of Law Offices of Douglas E.

Zeit, of Waukegan, for appellee.

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

Justices Bowman and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 The State appeals from the trial court’s orders barring the use of the blood alcohol test

results of defendant, David M. Hall, and dismissing one count of driving under the influence

(DUI) (625 ILCS 5/11-501(a)(1) (West 2006)). We affirm in part, reverse in part, and

remand.

¶ 2 I. BACKGROUND

¶ 3 Defendant was arrested on April 26, 2008, and charged with DUI (influence of alcohol)

(625 ILCS 5/11-501(a)(2) (West 2006)), improper turn (625 ILCS 5/11-801(a)(1) (West

2006)), improper lane usage (625 ILCS 5/11-709(a) (West 2006)), and resisting a peace

officer (720 ILCS 5/31-1 (West 2006)). During the course of the arrest, the arresting officer,

Officer Goldsmith of the Vernon Hills police department, sprayed defendant with pepper

spray and pulled defendant from his vehicle. A rescue squad was called to the scene, and

emergency medical technicians tended to defendant for about 25 minutes. Defendant was

then taken to Condell Medical Center for treatment of his left eye, which had taken the brunt

of the pepperspray. While at the hospital, defendant was hooked up to an electrocardiogram,

which detected a rapid heart rate. Before defendant was moved from the emergency room

and admitted to the hospital, Goldsmith told him to come to the police station to pick up his

citations after he was released. Goldsmith then left, and defendant was moved to a hospital

room, where, eventually, several vials of his blood were drawn to be tested for heart-related

issues. The following afternoon, defendant was released from the hospital and he picked up

his citations at the police station.

¶ 4 The Illinois Attorney General took over the prosecution of this case, as the Lake County

State’s Attorney determined that his office had a conflict of interest. An assistant Attorney 1

Defendant is a Lake County circuit court judge. 1

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General, with the help of an assistant State’s Attorney, learned that several vials of

defendant’s blood stillremained at Condell. On May14, 2008, the trial court ordered Condell

to release the blood samples to the Vernon Hills police department for transportation to the

Illinois State Police (ISP) crime lab for testing. An ISP technician tested the blood for 2

alcohol concentration on May15 and reported a blood alcohol concentration (BAC) of 0.107.

This information was tendered to defendant on June 11, but the test results remained sealed

under court order.

¶ 5 In April 2009, defendant filed a series of three motions to bar the use of the BAC test

results and defendant’s medical records that the State had obtained. After hearing argument

on September 28, 2009, the trial court denied defendant’s motion to bar the use of the

medical records. The court also denied the motion to bar the use of the BAC test results, in

order to grant the State “an opportunity to bring in their witnesses and show a complete

factual foundation.” Defendant would be given the opportunity to renew his motion at the

end of the State’s offer of proof.

¶ 6 On that same day, the State filed an information charging defendant with DUI (BAC of

0.08 or more) (625 ILCS 5/11-501(a)(1) (West 2006)). Defendant then filed a motion to

dismissthat charge on compulsory joinder and speedy trial grounds, pursuant to section 103-

5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5 (West 2006)).

¶ 7 The trial court held an evidentiary hearing on defendant’s motion to bar the use of the

BAC test results on March 1, 2010. The State called a series of witnesses from Condell

Medical Center, the Vernon Hills police department, and the ISP crime lab to testify

regarding the drawing, handling, storage, transportation, and testing of defendant’s blood.

Defendant called one witness, a pharmacist who testified about the possibility of “false

positive” results in blood alcohol tests, especially where no preservative was added to the

blood sample. Following the hearing, the trial court granted defendant’s motion to bar the

use of BAC evidence, finding that the blood had not been collected and stored in compliance

with applicable regulations contained in the Illinois Administrative Code. 20 Ill. Adm. Code

1286.320 (2011). The court listed all four original case numbers in the caption of its written

order and entered separate minute orders in the resisting arrest and traffic cases, stating that

“blood results *** shall not be admissible in this matter.” After denying the State’s

subsequent motion for reconsideration, the court granted defendant’s motion to dismiss the

charge of DUI (BAC of 0.08 or more) on compulsory joinder and speedy trial grounds. The

State filed a certificate of impairment, and this appeal followed.

Neither the State nor defendant raised the issue of the timeliness of the procurement of the 2

blood samples for testing. The apparent delay was due in part to the fact that Goldsmith neither

requested that a sample be taken nor was he present when the sample that was ultimately tested was

taken. The State first sought a court order to preserve the blood samples and to release them for

testing on May 2. However, all Lake County judges recused themselves from the case, and the

supreme court assigned Judge Brown to the case on May 5.

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¶ 8 II. ANALYSIS

¶ 9 We first note that we have taken with the case defendant’s motion to strike portions of

the State’s reply brief. Defendant alleges that the State makes several arguments that are

waived, frivolous, not supported by the record, and/or not supported by legal authority. We

deny the motion to strike, but we will disregard any arguments contained in that brief that

are inappropriately made.

¶ 10 The State first contends that the trial court erred in excluding the BAC evidence. In

general, this court will review a trial court’s ruling on a motion in limine for an abuse of

discretion. People v. Morris, 394 Ill App. 3d 678, 680 (2009). However, where the issue on

appeal is a question of law, we will grant a de novo review. Morris, 394 Ill. App. 3d at 680.

The interpretation of an administrative regulation or rule is a question of law to which the

principles of statutory interpretation apply. Morris, 394 Ill. App. 3d at 680.

¶ 11 Section 11-501.2 of the Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2006))

governs the admissibility of BAC test results in DUI prosecutions. Morris, 394 Ill. App. 3d

at 681. To be considered valid under the provisions of that section, a blood analysis “shall 3

have been performed according to standards promulgated bythe Department of State Police.”

625 ILCS 5/11-501.2(a)(1) (West 2006). Pursuant to the relevant portions of section

1286.320 of title 20 of the Administrative Code:

“The following procedures shall be used to obtain a blood sample from a subject to

determine the alcohol concentration, or presence of other drugs or intoxicating

compounds:

(a) The blood sample shall be collected in the presence of the arresting officer,

*** or an agency employee who can authenticate the sample.

* * *

(d) Officers shall use DUI kits provided by the Department, if possible. If kits

are not available, officers may submit two standard grey top vacuum tubes.

(Pursuant to generallyaccepted industry standards, greytop vacuum tubes contain an

anticoagulant and preservative.)” 20 Ill. Adm. Code 1286.320 (2011).

Failure to complywith section 11-501.2 and the regulations promulgated thereunder renders

the results of chemical tests inadmissible in a DUI prosecution. Morris, 394 Ill. App. 3d at

681.

¶ 12 The testimony presented at the evidentiary hearing revealed no evidence that either the

arresting officer or any other agency employee was present when defendant’s blood was

drawn. Juliana Gonzales, the Condell nurse who drew defendant’s blood pursuant to the

order of Dr. Murray Keene, testified that she drew the blood into several containers, one of

which had a purple top. Joan DuVall, the laboratory manager at Condell, testified that,

See also Ill. Evid. R. 101 (eff. Jan. 1, 2011) (“A statutory rule of evidence is effective unless 3

in conflict with a rule or a decision of the Illinois Supreme Court.”). To our knowledge, there is no

supreme court rule or decision that is in conflict with the declaration on admissibility contained in

section 11-501.2.

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according to standard industry-wide color codes, a purple top on a sample tube signifies that

the tube contains an anticoagulant. Jennifer Poltorak, a toxicologist at the ISP crime lab with

bachelor’s degrees in chemistry and forensic science, testified that she received three tubes

of defendant’s blood for testing, including one tube with a purple stopper. She tested two

samples from the purple-topped tube, using a head space gas chromatograph; the average

result revealed “an ethanol level of 0.107 grams per deciliter.” Poltorak testified that the

ethanol reading would not have been affected by the presence of methanol in the blood

sample. She also testified that it was not unusual to perform a BAC test on a blood sample

that was 18 or 19 days old. Defendant’s only witness, James O’Donnell, was a pharmacist

and professor with bachelor’s and doctorate degrees in pharmacy and a master’s degree in

nutrition. Testifying as an expert in pharmacology, O’Donnell opined that the tubes of

defendant’s blood were tainted because of a lack of determination of proper storage and the

“significant probability” that microbial growth in blood untreated with preservative would

lead to the synthesis of alcohol in the samples and would cause a “false positive” reading.

Preservatives do not completely kill such bacteria but limit their growth.

¶ 13 Section 11-501.2 was intended to ensure the reliability of evidence introduced in DUI

prosecutions. People v. Emrich, 113 Ill. 2d 343, 349 (1986). A “valid” blood analysis under

this section “shall have been performed according to standards promulgated by the

Department of State Police.” 625 ILCS 5/11-501.2(a)(1) (West 2006). As noted, the failure

to comply with section 11-501.2 and the regulations promulgated thereunder renders the

results of chemical tests inadmissible in a DUI prosecution. Emrich, 113 Ill. 2d at 351. The

State admits that it did not fully comply with subsections (a) and (d) of section 1286.320.

However, it argues that strict compliance with the provisions of the Administrative Code is

not required. Relying on this court’s opinion in People v. Ebert, 401 Ill. App. 3d 958 (2010),

the State argues that the BAC test results should be admitted as long as the testing procedures

substantially complied with the regulations.

¶ 14 We first address the State’s noncompliance with subsection (d), which commands that

the tubes used to contain the blood for testing “contain an anticoagulant and preservative.”

20 Ill. Adm. Code 1286.320(d). Here, while there was evidence that the purple-topped tube

from which the blood was taken for the BAC test contained an anticoagulant, there is no

evidence that the tube contained the required preservative. There was 50% compliance with

the requirement that the tube contain both an anticoagulant and preservative; however, there

was zero compliance with the requirement that the tube contain a preservative. This is a

failure to comply, not “substantial” compliance.

¶ 15 The State’s reliance on Ebert is overblown in this instance. In Ebert, which involved the

issue of whether a police officer failed to comply with regulations requiring him to

continuously observe the defendant for at least 20 minutes before administering a breath test,

this court stated:

“The standards exist, not for their own sakes, but in service of the truth-seeking function,

which they promote by ensuring that blood, breath, and urine tests are conducted in a

manner that produces reliable results. If the standards are to serve this purpose, the rule

of substantial compliance must be one that neither blithely ignores the standards nor

enforces them in a purely rote manner. We are therefore reluctant to relax the standards

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

However, when it is clear that a particular deviation from the mandated procedures does

not pertain to a matter of science, a court is perfectly competent to determine whether,

in a given case, the deviation compromised the integrity of the testing process.”

(Emphasis added.) Ebert, 401 Ill. App. 3d at 965.

This court found that the purpose of the observation period at issue was to “document that

the motorist does nothing that might impair the accuracy of the breath test,” such as vomit,

belch, regurgitate, or place a foreign object in his mouth. Ebert, 401 Ill. App. 3d at 965.

However, even though the officer did not observe the defendant for the required 20 minutes,

the defendant himself testified that he did not perform any of those acts. “Under these

circumstances,” failure to strictly comply with the regulation “was de minimis.” Ebert, 401

Ill. App. 3d at 965.

¶ 16 Here, however, the issue of whether the failure to include preservative in the tube of

blood used for defendant’s BAC test requires an inquiry into the scientific basis for the

requirement. The blood was not tested for almost three weeks after it was drawn; neither the

trial court nor this court is “perfectly competent,” in the words of Ebert, to determine

whether the failure to include the preservative compromised the integrity of the testing

process. See Ebert, 401 Ill. App. 3d at 965. The legislature has assigned to the Department

of State Police the responsibility to promulgate standards for chemical analyses of blood,

urine, and breath and to “prescribe regulations as necessary to implement” section 11-501.2.

625 ILCS 5/11-501.2(a)(1) (West 2006). We will not second-guess the reasoning behind

these regulations by considering conflicting testimony regarding scientific matters that are

within the purview of the Department of State Police. We cannot conclude that failure to

strictly comply with subsection (d) is de minimis. Underthe facts of this case, Ebert does not

support the State’s argument that substantial compliance with the regulation would be

sufficient. Instead, the Ebert analysis reinforces our conclusion that the trial court did not err

in excluding the BAC evidence because the State did not comply with subsection (d).

¶ 17 Because of our disposition of this aspect, we need not address the issue of compliance

with the requirement of subsection (a) that the officer or another agency representative be

present when the blood is drawn.

¶ 18 The State next contends that the trial court erred in extending its ruling excluding the

BAC results to the non-DUI counts. The standards promulgated pursuant to section 11-501.2

are applicable only to the offense of DUI; in a trial for any other offense, BAC test results

are to be received in evidence under the usual standards governing the admission of

evidence. People v. Murphy, 108 Ill. 2d 228, 236 (1985); see also Emrich, 113 Ill. 2d at 351

(both involving the offense of reckless homicide). This is true even if the DUI offense is tried

with the other offenses. See Emrich, 113 Ill. 2d at 351.

¶ 19 We note that, in its motion to reconsider, the State moved the court to clarify its order

“and permit evidence of the blood alcohol level on the remaining DUI count alleging

impairment.” Although the State cited to Murphy and Emrich in its motion and arguments,

it did not address the exclusion of the BAC results vis-á-vis the non-DUI counts. A party

cannot make an argument for the first time on appeal. People v. Vasquez, 388 Ill. App. 3d

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532, 543 (2009). An argument not raised in the trial court is forfeited on appeal, and we need

not review it. Vasquez, 388 Ill. App. 3d at 543. The doctrine of forfeiture applies to the State

as well as to the defendant. People v. McKown, 236 Ill. 2d 278, 308 (2010) (citing People

v. Williams, 193 Ill. 2d 306, 347 (2000)). We find this argument forfeited and will not

consider it.

¶ 20 The State next contends that the trial court erred in dismissing the charge of DUI (BAC

of 0.08 or more) on speedy trial and compulsory joinder grounds. We agree.

“Compulsory joinder requires the State to bring multiple charges in a single

prosecution. The charges are tried together unless the circuit court determines that a

separate trial is required in the interest of justice. [Citation.] Once a speedy-trial demand

is filed, the multiple charges are subject to the same speedy-trial period. If the charges are

required to be brought in a single prosecution, the speedy-trial period begins to run when

the speedy-trial demand is filed, even if the State brings some of the charges at a later

date.” (Emphases added.) People v. Quigley, 183 Ill. 2d 1, 13 (1998).

Even if the charges were subject to compulsory joinder, defendant did not file a speedy trial

demand.

¶ 21 Section 103-5(b) requires that an individual on bail or recognizance, such as defendant,

be tried within 160 days from the date that he demands trial. 725 ILCS 5/103-5(b) (West

2006); People v. Murray, 379 Ill. App. 3d 153, 160 (2008). While there are no magic words

required to constitute a speedy trial demand, there must be some affirmative statement

requesting a speedy trial. Murray, 379 Ill. App. 3d at 160. Here, there is no indication that

defendant ever made any such affirmative request for a speedy trial. As no demand was

made, no speedy trial period, for either the initial charges or the later-brought BAC charge,

could run. Therefore, the trial court erred in granting defendant’s motion to dismiss.

¶ 22 III. CONCLUSION

¶ 23 For these reasons, the judgment of the circuit court of Lake County barring the use of the

BAC test results is affirmed; the judgment dismissing the charge of DUI (BAC of 0.08 or

more) is reversed; and the cause is remanded.

¶ 24 Affirmed in part and reversed in part; cause remanded.

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