             NOTICE
                                      2015 IL App (5th) 130096
 Decision f iled 09/25/15.   The
 text of this decision may be              NO. 5-13-0096
 changed or corr ected prior to
 the f iling of   a Petition f or
 Rehearing or the disposition of               IN THE
 the same.

                                    APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
     Plaintiff-Appellee,                    )     St. Clair County.
                                            )
v.                                          )     No. 12-CF-486
                                            )
IDA WAY,                                    )     Honorable
                                            )     John Baricevic,
     Defendant-Appellant.                   )     Judge, presiding.
________________________________________________________________________

          JUSTICE MOORE delivered the judgment of the court, with opinion.
          Justices Stewart and Schwarm concurred in the judgment and opinion.

                                           OPINION

¶1        The defendant, Ida Way, appeals her conviction, following a stipulated bench trial

in the circuit court of St. Clair County, for the offense of aggravated driving under the

influence (DUI). For the following reasons, we reverse the defendant's conviction and

remand for further proceedings.

¶2                                            FACTS

¶3           The facts necessary to our disposition of this appeal follow. They are derived

from this court's review of the record on appeal. On March 30, 2012, the defendant was

charged, by information, with three counts of aggravated DUI (625 ILCS 5/11-501(a)(6),

                                                 1
(d)(1)(C) (West 2010)), following an investigation into a traffic accident in which the

defendant was involved on January 28, 2012. The accident resulted in serious injuries to

the defendant's 14-year-old son, who was a passenger in the vehicle the defendant was

driving, and to the driver of another vehicle, Emily Wood, who was pregnant at the time

of the accident, but whose baby was later born healthy and has remained so. The

defendant's son reported to responding police officers that the defendant "fell asleep" just

prior to the accident. The State's theory of the case, as reflected in the wording of the

charges, was that at the time of the accident, the defendant was operating her vehicle

"while there was an amount of a drug, substance or compound in her breath, blood, or

urine resulting from the unlawful use or consumption of cannabis."

¶4     On December 17, 2012, the State filed both its first and its second motions in

limine. The first motion in limine is not relevant to the issues raised in this appeal. In the

second motion, the State contended that the defendant's medical reports "suggest another

possible reason for the defendant losing consciousness and causing the vehicle crash" in

question. The State posited that pursuant to the decision of the Supreme Court of Illinois

in People v. Martin, 2011 IL 109102, in an aggravated DUI case involving the presence

of illegal drugs in a defendant's system, the State is not required to prove that impairment

by the drugs was the proximate cause of the victims' deaths or injuries; to the contrary,

the State need prove only that the defendant's driving was a proximate cause of the deaths

or injuries. Pursuant to its understanding of the holding of Martin, the State asked the

trial court to prohibit the defendant from introducing evidence, or making argument, with


                                              2
regard to other possible reasons for the defendant's loss of consciousness prior to the

accident.

¶5      On January 3, 2013, the defendant filed a response to the State's motion, arguing

therein that although the defendant agreed that under Martin, the State did not have to

prove impairment, the defendant nevertheless should be allowed to introduce evidence to

rebut any presumption of impairment, because if the defendant were not allowed to do

this, the statute would contain what the defendant deemed an "unconstitutional ***

mandatory, irrebuttable presumption."

¶6      On January 4, 2013, the trial judge entered a written order in which he ruled in

favor of the State. He first noted that the position of the defendant was, inter alia, "that

the causal connection must be able to be rebutted." The trial judge disagreed, writing that

his reading of the statute indicated a legislative intent to require "strict liability as to the

accident." He ruled that "[t]he State must prove that there was an accident with the

defendant driving one car," and that the injured person was injured "as a result of the

accident." However, he added that in his opinion, "further causal connection is not

required" because the statute "established a system that makes any driver responsible for

the outcome of an accident if there is any level of drugs in the system" of that driver.

¶7      On January 7, 2013, the case proceeded to a stipulated bench trial. After ensuring

that the defendant's waiver of her right to a jury trial was knowing and voluntary, 1 the


       1
           We commend the trial judge for his detailed and thorough admonishment of the

defendant with regard to this and other procedural issues and rights throughout this case.

                                               3
trial judge allowed the parties to stipulate to the following facts pertinent to this appeal:

(1) a police officer who investigated the accident would testify that the defendant told

him she had used cannabis at some point prior to the accident, and he found cannabis on

the ground near her open purse; (2) the defendant's son would testify that the defendant,

who was driving, "started to fall asleep" just prior to the accident, and he attempted to

grab the steering wheel but could not stop the vehicle from crossing the center lane and

crashing into Wood's vehicle; (3) a qualified forensic scientist would lay a proper

foundation and would testify that the defendant's urine specimen, taken following the

accident, contained THC metabolite, which results from the use of cannabis; and (4) both

the defendant's son and Wood "suffered great bodily harm" as a result of the accident.

¶8     In addition to the above stipulations, counsel for the defendant noted that had

there been a jury trial, and had he been allowed to do so, he would have called to testify:

(1) the defendant, who would have testified that she did not use "any illegal drugs" on the

day of the accident; and (2) the defendant's physician, Dr. Helen McDermott, who would

have testified that the defendant has low blood pressure, and that "it is possible that the

loss of consciousness right before the accident was caused by this condition and not

caused by any particular drug." The trial judge found that although there was evidence of

an "illegal substance" in the defendant's blood, there was nevertheless "not evidence of

impairment." The judge reiterated that proof of impairment was not required pursuant to

Martin, and ruled that sufficient evidence existed to find the defendant guilty of all three

counts against her. He withheld entering judgment on the counts until the State could

complete research and present argument regarding the merger of the counts.
                                             4
¶9     On February 21, 2013, a sentencing hearing was held. Wood testified that she

had settled her civil litigation with the defendant's insurance company, and that the

settlement was sufficient to cover her medical bills and "lost finances due to the crash."

The defendant testified, reiterating that although she had used cannabis prior to the

accident, she had not used it on the actual day of the accident. She acknowledged that at

the time of the accident her driving privileges were revoked due to a prior DUI, and that

she should not have been driving.       In allocution, the defendant apologized for the

accident and expressed empathy for Wood and the injuries Wood sustained. She stated

as well that she was "glad [Wood's] baby is okay. "

¶ 10   Following argument by the parties, the trial judge discussed factors in mitigation,

stating that "level of impairment is absolutely a mitigation," and that "[t]here's another

statute that the State could have charged if they believed there was impairment." He also

noted in mitigation the defendant's "acceptance and responsibility for her actions," and in

aggravation the fact that the defendant's driving privileges were revoked at the time of the

accident and that she "shouldn't have been behind the wheel." Noting again that he found

"no impairment," and that this is the defendant's first felony conviction, he sentenced the

defendant to a term of imprisonment of 18 months in the Illinois Department of

Corrections, to be followed by 1 year of mandatory supervised release. The parties

agreed, following their research, that the three counts merged; accordingly, the trial judge

entered judgment and sentence on the first count only. This timely appeal followed.




                                             5
¶ 11                                   ANALYSIS

¶ 12   The sole issue presented on appeal by the defendant is that she was denied her

right to present a defense at trial because she was not allowed to contest the "proximate

cause" element of her aggravated DUI charge. The defendant points out the fundamental

precept that an individual charged with a criminal offense has the right to present one or

more defenses to the offense, and to present his or her " 'version of the facts as well as the

prosecution's to the [trier of fact] so it may decide where the truth lies.' " People v.

Manion, 67 Ill. 2d 564, 576 (1977) (quoting Washington v. Texas, 388 U.S. 14, 19

(1967)). "[C]onsistent with the right to present a defense, there is the right of an accused

to show, by competent evidence, facts which tend to" negate one or more elements of the

offense charged.    Id. The State does not quarrel with this well-established precept;

instead, the State contends the defendant was not denied her right to present evidence

related to any of the elements of the offense with which she was charged, and that even if

the trial judge erred in excluding the evidence the defendant wished to present, such error

was harmless. We shall address these contentions in more detail below.

¶ 13   With regard to the defense the defendant wished to present at trial, the defendant

correctly lays out the relevant statutory scheme: pursuant to section 11-501(a)(6) of the

Illinois Vehicle Code (625 ILCS 5/11-501(a)(6) (West 2010)), a person in Illinois is

prohibited from driving a vehicle while "there is any amount of a drug, substance, or

compound in the person's breath, blood, or urine resulting from the unlawful use or

consumption of cannabis" or certain other controlled substances.           Violation of this

prohibition is generally a Class A misdemeanor. 625 ILCS 5/11-501(c)(1) (West 2010).
                                              6
However, violation of the prohibition constitutes aggravated DUI, and therefore is a

felony, under certain delineated circumstances; the circumstance under which the

defendant in the case at bar was charged and convicted, and therefore the circumstance

relevant to this appeal, is when the person who violates the prohibition "was involved in a

motor vehicle accident that resulted in great bodily harm or permanent disability or

disfigurement to another, when the violation was a proximate cause of the injuries." 625

ILCS 5/11-501(d)(1)(C) (West 2010).

¶ 14   As noted above, the parties stipulated that the accident in question resulted in great

bodily harm to both the defendant's son and Wood, and indeed stipulated to permanent

disability to Wood in the form of continuing pain when walking. They also stipulated to

the fact that the defendant had, in her system, THC metabolite, which results from the use

of cannabis, and that the defendant was driving the vehicle that crossed into Wood's lane

of traffic and struck Wood's vehicle. Moreover, the parties agree on appeal−and indeed

agreed in the trial court−that the State was not required to show that impairment of the

defendant by her use of cannabis was the proximate cause of the accident. The point of

contention between the parties is what does have to be proved with regard to the

proximate cause of the accident, and what kind of defenses a defendant may seek to

introduce at trial in an effort to convince the trier of fact that the defendant's driving did

not proximately cause the accident.

¶ 15   The State contends that this particular type of aggravated DUI is "a strict liability

crime with no element of impairment," and that the State need prove only that the

"defendant's driving was the proximate cause of the accident." The State maintains that
                                              7
the trial court therefore properly granted the State's motion in limine. The defendant

agrees that the State must prove that the defendant's driving proximately caused the

accident, but argues that proximate cause requires, inter alia, foreseeability, and that

therefore the defendant should have been allowed to introduce evidence that might have

convinced the trier of fact that an unforeseeable sudden illness, rather than the defendant's

driving, was the sole and proximate cause of the accident.

¶ 16   In support of this proposition, the defendant points to the body of law developed in

civil cases involving the question of proximate cause, noting that it is well established

that proximate cause requires both cause in fact and legal cause.          See, e.g., Lee v.

Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). As the Supreme Court of Illinois

pointed out in Lee, these two requirements reflect "a policy decision that limits how far a

defendant's legal responsibility should be extended for conduct that, in fact, caused the

harm." Id. The requirement at issue in this case, legal cause, " 'is essentially a question

of foreseeability.' " Id. at 456 (quoting Masotti v. Console, 195 Ill. App. 3d 838, 845

(1990)). In Evans v. Brown, 399 Ill. App. 3d 238, 246 (2010) (quoting Wald v. Pittsburg,

Cincinnati, Chicago & St. Louis R.R. Co., 162 Ill. 545, 551 (1896)), the appellate court

noted the longstanding rule that " '[a] loss or injury is due to the act of God, when it is

occasioned exclusively by natural causes such as could not be prevented by human care,

skill[,] and foresight.' " Relying upon earlier cases, the court went on to hold that "[a]

sudden illness or death that renders a driver incapable of controlling his [or her] car,

provided that the event is unforeseeable and beyond the power of human intervention to

prevent, is an act of God," but cautioned that "liability is only precluded if the alleged act
                                              8
of God constitutes the sole and proximate cause of the injuries." Id. The court further

held that the question of whether a sudden illness was foreseeable will almost always be a

question of fact that must be presented to and resolved by the trier of fact, and that it

harbored "strong reservations that, as a matter of law, an affirmative defense based on an

act of God could ever prevail in a summary-judgment context when the plaintiff's injury

arose out of an automobile accident." Id. at 249-50. That is because "[t]o conclude that a

natural event was the sole and proximate cause of such an injury requires irrefutable and

unequivocal evidence, an extremely rare commodity," and because "even when the

evidence presented is seemingly unequivocal, different inferences may still reasonably

flow" from that evidence. Id. at 250. Accordingly, evidence related to a sudden illness

prior to an automobile accident will almost always raise a genuine issue of material fact

that precludes summary judgment.       Id. at 252.    On the basis of this case law, the

defendant in the case at bar contends that she should have been allowed to present to the

trier of fact the testimony of her physician, Dr. Helen McDermott, that the defendant has

low blood pressure, and that "it is possible that the loss of consciousness right before the

accident was caused by this condition."

¶ 17   The State takes issue with the defendant's reliance on Evans, noting that no drugs

or alcohol were involved in that case, that the State is aware of no criminal cases that

allowed an "act of God" defense, and that at most, the alleged sudden illness of the

defendant in this case would be a proximate cause of the accident, not the "sole"

proximate cause of the accident required by Evans, which means that even if the

exclusion of the evidence was in error, it would constitute harmless error. We find no
                                             9
support in the record or in the law for the State's position. First, the fact that there were

no drugs or alcohol involved in Evans is of no relevance to our analysis, because in this

case the trial judge repeatedly found that there was no evidence of impairment of the

defendant by alcohol or drugs. In other words, although the defendant's urine specimen,

taken following the accident, contained THC metabolite, which results from the use of

cannabis, it was the factual finding of the trial judge−uncontested by the State on

appeal−that there was no evidence that the presence of the metabolite had any connection

to the accident, and we therefore find it illogical to attempt to distinguish Evans on that

basis.

¶ 18     Second, as the defendant points out, the Supreme Court of Illinois has repeatedly

held that " 'the analogies between civil and criminal cases in which individuals are

injured or killed are so close that the principle of proximate cause applies to both classes

of cases.' " People v. Hudson, 222 Ill. 2d 392, 401 (2006) (quoting People v. Lowery,

178 Ill. 2d 462, 466 (1997)). That is because " '[c]ausal relation is the universal factor

common to all legal liability.' " Id. In so doing, the Supreme Court of Illinois has

repeatedly employed the same definition of proximate cause, and the same general

analysis regarding foreseeability, that we have outlined above, albeit without specifically

incorporating the "act of God" defense into criminal cases. See, e.g., id. We see no

logical reason, however, to bring part, but not all, of the civil law analysis regarding

proximate cause into criminal cases, and the State has suggested none. Certainly, the

General Assembly, in choosing to employ the term "proximate cause" in section

11-501(d)(1)(C) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(1)(C) (West 2010))
                                             10
to explain when an offense would constitute aggravated DUI under circumstances such as

those in the case at bar, was aware of the longstanding meaning of this term in Illinois, as

well as the ramifications of its use, and had the General Assembly wished to limit the

"proximate cause" analysis−by, for example, excluding the "act of God" defense−in

aggravated DUI cases such as this one, it certainly would have chosen appropriate

language to do so. Indeed, had the General Assembly wished to craft the "strict liability"

offense the State claims exists in the case at bar, the General Assembly would have

omitted the ending phrase "when the violation was a proximate cause of the injuries" and

left the statute to state instead that aggravated DUI is committed when a driver violates

section 11-501(a)(6) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(6) (West 2010))

and is "involved in a motor vehicle accident that result[s] in great bodily harm or

permanent disability or disfigurement to another." The General Assembly did not craft

the statute in this manner, and we decline to reshape it as the State desires.

¶ 19   Moreover, although the State repeatedly contends that pursuant to People v.

Martin, 2011 IL 109102, ¶ 26, a "presumption of impairment" exists in aggravated DUI

cases involving the presence of controlled substances, rather than alcohol, in a

defendant's body, that point is undisputed: the parties agree, and this court agrees, that

Martin stands for the proposition that the State is not required to prove impairment in

such cases. However, the Martin court was not asked to address the question before this

court, which as stated above is what must be proved with regard to the proximate cause

of the accident, and what kind of defenses a defendant may seek to introduce at trial in an

effort to convince the trier of fact that the defendant's driving did not proximately cause
                                             11
the accident in question. Therefore, Martin is of limited relevance to the question before

us, although the Martin court did recognize that in a case such as this one, "the central

issue at trial will be proximate cause, not impairment" (id.), a point with which we agree.

¶ 20   Third, we cannot agree with the State that the exclusion of the evidence was

harmless error. The State posits that the alleged sudden illness of the defendant may have

been "a possible secondary reason for [the] defendant falling asleep" just prior to the

accident, but because of the aforementioned "presumption of impairment" it could not be

the sole and proximate cause of the accident. We agree with the defendant that neither

Martin nor any other reported decision stands for such a sweeping proposition, and that

in fact such a proposition is inconsistent with the declaration of the Martin court that in

cases such as this one, proximate cause will be the central issue at trial. See People v.

Martin, 2011 IL 109102, ¶ 26. Moreover, the defendant has never contended that the

alleged sudden illness was merely a possible secondary reason for her loss of

consciousness; to the contrary, her argument has always been that the trier of fact should

have been allowed to hear evidence and to then decide whether the sudden illness was the

sole and proximate cause of the accident.        Based upon Evans and its progeny, as

explained above, if the trier of fact decided the sudden illness was the sole and proximate

cause of the accident, the defendant would prevail, as her driving would not be the legal

cause of the accident and the injuries resulting therefrom; if the trier of fact decided the

sudden illness was, as the State proposes, a secondary cause−or only one of several

causes, or not related to the accident at all−the defendant would not prevail. But that was


                                            12
for the trier of fact to decide, and it was not harmless error for the trial judge to rule

otherwise. See, e.g., Evans v. Brown, 399 Ill. App. 3d 238, 249-52 (2010).

¶ 21   That said, we offer no opinion as to the strength of the defendant's proposed

evidence, nor do we know what evidence the State might have presented, or adduced

during its cross-examination of Dr. McDermott, regarding how foreseeable the alleged

sudden illness of the defendant was; certainly, if Dr. McDermott testified that the

defendant had passed out before while driving, or had been advised that she might pass

out while driving, such testimony could impact the trier of fact's analysis with regard to

foreseeability. Nevertheless, the defendant should have been allowed to present her

evidence, the State should have been allowed to attempt to discredit or rebut that

evidence, and the trier of fact should have been allowed to evaluate it. Accordingly, we

conclude that the defendant was denied her right to present a defense at trial. See, e.g.,

People v. Manion, 67 Ill. 2d 564, 576 (1977).

¶ 22                                 CONCLUSION

¶ 23   For the foregoing reasons, we reverse the defendant's conviction and remand for

further proceedings.




¶ 24   Reversed; cause remanded.




                                           13
                                 2015 IL App (5th) 130096

                                      NO. 5-13-0096

                                          IN THE

                             APPELLATE COURT OF ILLINOIS

                                    FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,                    )      Appeal from the
                                                        )      Circuit Court of
       Plaintiff-Appellee,                              )      St. Clair County.
                                                        )
v.                                                      )      No. 12-CF-486
                                                        )
IDA WAY,                                                )      Honorable
                                                        )      John Baricevic,
       Defendant-Appellant.                             )      Judge, presiding.
______________________________________________________________________________

Opinion Filed:         September 25, 2015
______________________________________________________________________________

Justices:            Honorable James R. Moore, J.

                  Honorable Bruce D. Stewart, J., and
                  Honorable S. Gene Schwarm, J.,
                  Concur
______________________________________________________________________________

Attorneys            Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for                  Defender, Maggie A. Heim, Assistant Appellate Defender, Office of
Appellant            the State Appellate Defender, Fifth Judicial District, 909 Water Tower
                     Circle, Mt. Vernon, IL 62864
______________________________________________________________________________

Attorneys        Hon. Brendan F. Kelly, State's Attorney, St. Clair County Courthouse,
for              10 Public Square, Belleville, IL 62220, Patrick Delfino, Director,
Appellee         Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney,
                 Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois
                 Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
__________________________________________________________________________
