                             Illinois Official Reports

                                    Appellate Court



                          People v. Presa, 2014 IL App (3d) 130255



Appellate Court         THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                 BRUNO PRESA, Defendant-Appellant.


District & No.          Third District
                        Docket No. 3-13-0255


Rule 23 Order filed     November 14, 2014
Motion to publish
allowed                 December 18, 2014
Opinion filed           December 18, 2014



Held                       Defendant’s conviction for possession of syringes under the
(Note: This syllabus Hypodermic Syringes and Needles Act based on his possession of
constitutes no part of the nearly 500 used and uncapped hypodermic syringes was reversed on
opinion of the court but the ground that defendant was a card-holding member of the Chicago
has been prepared by the Recovery Alliance, a “needle exchange” program intended to slow the
Reporter of Decisions spread of human immunodeficiency virus among intravenous drug
for the convenience of users and defendant fell within the statutory exemption allowing
the reader.)               persons engaged in “scientific research” to possess more than 20
                           hypodermic needles, since the “needle exchange” program was an
                           entity engaged in scientific research.



Decision Under          Appeal from the Circuit Court of Will County, No. 11-CM-3893; the
Review                  Hon. Carmen Goodman, Judge, presiding.



Judgment                Reversed.
     Counsel on               Michael J. Pelletier and Editha Rosario-Moore, both of State
     Appeal                   Appellate Defender’s Office, of Ottawa, for appellant.

                              James Glasgow, State’s Attorney, of Joliet (Mark A. Austill, of State’s
                              Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE SCHMIDT delivered the judgment of the court, with
                              opinion.
                              Justices Holdridge and Wright concurred in the judgment and opinion.




                                               OPINION

¶1         Defendant, Bruno Presa, was charged with one count of possession of syringes under
       section 1 of the Hypodermic Syringes and Needles Act (Act) (720 ILCS 635/1 (West 2010)),
       when he was found in possession of approximately 500 used and uncapped hypodermic
       syringes in a cardboard box in his bedroom. Defendant was a card-holding member of the
       Chicago Recovery Alliance (CRA), a “needle exchange” program that aims to slow the spread
       of human immunodeficiency virus (HIV) among intravenous drug users. At a bench trial,
       defendant argued that he met the statutory exemption for a person engaged in “scientific
       research,” through his participation in CRA’s program. See 720 ILCS 635/1(a) (West 2010).
       The court found defendant guilty. Defendant appeals, arguing the evidence was insufficient to
       prove him guilty beyond a reasonable doubt. The State concedes, and we reverse.

¶2                                              FACTS
¶3         Defendant was charged by information with “Unlawful Possession of Hypodermic Syringe
       or Needle” under section 1 of the Act (720 ILCS 635/1 (West 2010)). The charging
       information alleged:
              “[D]efendant, knowingly and unlawfully had in his possession an instrument, namely a
              hypodermic syringe and needle, or any other instrument so adapted for the use of
              controlled substances by subcutaneous injection and the defendant was not in
              possession of such aforementioned instrument by reason of or during the course of his
              official duties, and the defendant was not in possession of such aforementioned
              instrument acting under the direction of a medical doctor, dentist or hospital supervisor
              ***.”
       Section 1 reads:
                  “(a) Except as provided in subsection (b), no person, not being *** a person
              engaged in chemical, clinical, pharmaceutical or other scientific research, shall have
              in his possession a hypodermic syringe, hypodermic needle, or any instrument adapted
              for the use of controlled substances or cannabis by subcutaneous injection.


                                                  -2-
                 (b) A person who is at least 18 years of age may purchase from a pharmacy and
             have in his or her possession up to 20 hypodermic syringes or needles.” (Emphasis
             added.) 720 ILCS 635/1 (West 2010).
     Section (b), along with the part of section (a) referencing it, was added by the legislature in
     2003. Pub. Act 93-392 (eff. July 25, 2003). The amendment was characterized as a public
     health initiative, which, by “decriminaliz[ing] the possession of up to twenty sterile
     hypodermic needles and syringes,” aimed to reduce the transmission of HIV and other diseases
     by intravenous drug users. 93d Ill. Gen. Assem., Senate Proceedings, March 24, 2003, at 78
     (statements of Senator Trotter).
¶4       Defendant bonded out of jail on a $100 personal recognizance bail bond. His bail bond
     contract listed six conditions of bond, none of which mentioned drug screenings. Defendant
     entered a plea of not guilty at his arraignment, explaining that he was a member of “the needle
     exchange program.”
¶5       At the first pretrial hearing, defendant appeared pro se. The court stated that “as a condition
     of your bond, you were to be drug tested today.” Defendant said he was unaware of that
     requirement and had not yet been drug tested. Defendant requested that the court dismiss the
     charge because “I have a card for legal possession of what I got arrested for.” The court stated,
     “That’s probably a defense,” but explained that defendant needed counsel and, first of all,
     needed to be drug tested. The court appointed a public defender and ordered defendant
     downstairs for a drug screening. The court explained, “I test everybody who has these type of
     cases.”
¶6       On March 14, 2013, the case proceeded to a bench trial. Pretrial, the State stipulated to two
     defense exhibits. The first was a special order from the Chicago police department (CPD)
     regarding CRA. The special order stated that CRA personnel and participants in the needle
     exchange program met the statutory exemption for scientific research under section 1 of the
     Act. The order directed CPD officers not to arrest CRA program participants for possession of
     hypodermic syringes. The second exhibit was a special order from the Joliet police department,
     directing its officers not to arrest participants of a similar needle exchange program for
     possession of syringes.
¶7       The defense called Dan Bigg, director of CRA. Bigg explained that CRA is a 21-year-old
     nonprofit organization that aims to study and reduce the spread of HIV and hepatitis B and C.
     When participants interact with CRA to receive services, CRA asks them questions that are
     recorded and used for research purposes. Its members are given coded identification cards;
     cardholder names are not collected or stored by CRA. Bigg testified that defendant had a valid
     CRA card and was considered a current participant in CRA’s research program.
¶8       Gregg Scott testified that he is an associate professor of sociology at DePaul University
     who studies HIV and drug use. The data collected through CRA’s questioning of participants is
     stored and analyzed at DePaul’s science research center. On cross-examination, Scott stated
     that participants may take as many clean needles as they want, and there is no requirement that
     they must exchange dirty needles to receive clean ones. According to Scott, “putting
     limitations on the number of syringes actually contributes to the flourishing of HIV.”
¶9       The court ultimately determined that defendant’s CRA participant card did not in itself
     establish that defendant was a person engaged in scientific research under the Act. The court
     found defendant guilty.


                                                  -3-
¶ 10       The court asked whether the parties were ready to proceed to sentencing. Defense counsel
       requested a continuance to gather and prepare mitigating evidence. The court denied that
       request: “Okay. Well, this is a 2011 case. I will give you five minutes.” The court sentenced
       defendant to 90 days in jail, 24 months’ conditional discharge, and fines and costs of $200.
       Defendant appeals.

¶ 11                                             ANALYSIS
¶ 12       On appeal, defendant, again, argues that because of his participation in CRA’s program, he
       met the statutory exemption for a person engaged in scientific research. The State concedes
       that defendant’s conviction must be reversed.
¶ 13       Under the statute, anyone 18 years of age or older may possess up to 20 needles. To legally
       possess more than 20 needles, the person or entity must meet one of the exemptions listed in
       subsection (a). In the present case, defendant claimed he met the exemption for “a person
       engaged in *** scientific research.” 720 ILCS 635/1(a) (West 2010). The State conceded–and
       the evidence overwhelmingly established–that CRA was an entity engaged in scientific
       research. The legislature decided that it was sound public policy to allow the possession of up
       to 20 syringes for anyone and more than 20 syringes for those engaged in scientific research. It
       is not the role of the courts to question that policy decision.
¶ 14       Clinical scientific research, by definition, requires not only scientific researchers, but also
       participants or patients. Dan Bigg, the director of CRA, testified that defendant possessed a
       valid CRA card; Bigg considered defendant a current participant in CRA’s research program.
       On appeal, the State concedes that defendant was, for purposes of the Act, engaged in scientific
       research. No reasonable trier of fact could have found defendant guilty based upon the
       evidence presented at trial. The State confesses error. We reverse defendant’s conviction.

¶ 15                                        CONCLUSION
¶ 16      For the foregoing reasons, the judgment of the circuit court of Will County is reversed.

¶ 17      Reversed.




                                                    -4-
