                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Harmon, 2012 IL App (3d) 110297




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



District & No.             Third District
                           Docket No. 3-11-0297


Rule 23 Order filed        June 7, 2012
Motion to publish
allowed                    July 19, 2012
Opinion filed              July 19, 2012


Held                       Defendant’s DUI convictions were reversed where the State’s evidence
(Note: This syllabus       concerning defendant’s blood alcohol level was insufficient to support the
constitutes no part of     court’s finding that he violated section 11-501(a)(1) of the Illinois
the opinion of the court   Vehicle Code.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 10-DT-863; the Hon.
Review                     Domenica Osterberger, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Eric P. Hanson, of Mahoney, Silverman & Cross, LLC, of Joliet, for
Appeal                     appellant.

                           James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel and Justin A.
                           Nicolosi, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                           Justices McDade and O’Brien concurred in the judgment and opinion.




                                            OPINION

¶1          After a bench trial, the court found defendant, Timothy Harmon, guilty of two counts of
        driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010))
        and improper lane usage (625 ILCS 5/11-709 (West 2010)), and imposed a sentence of 24
        months of conditional discharge. On appeal, defendant argues that the trial court erred by
        concluding that “221” on his hospital blood test results meant 0.221 grams of alcohol per 100
        milliliters of blood. See 625 ILCS 5/11-501.2(a)(5) (West 2010) (stating that alcohol
        concentration is measured in grams per 100 milliliters of blood). We reverse.

¶2                                            FACTS
¶3          On May 22, 2010, defendant was involved in a single-vehicle accident and was
        transported to Adventist Bolingbrook Hospital (Adventist) for emergency medical treatment.
        The State charged defendant with driving a motor vehicle while his blood alcohol level was
        above 0.08 (625 ILCS 5/11-501(a)(1) (West 2010)), driving a motor vehicle while under the
        influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2010)), improper lane usage (625 ILCS
        5/11-709 (West 2010)), and driving too fast for conditions (625 ILCS 5/11-601(a) (West
        2010)).
¶4          At trial, Rosemary Brockmeier testified that on the day of defendant’s accident, she was
        employed as a nurse at Adventist. She stated that defendant arrived at the hospital for
        emergency treatment and his blood was tested in the ordinary course of emergency treatment.
        The following exchange then occurred between the prosecutor and Brockmeier:
                “Q. [Assistant State’s Attorney]: What [was] the blood alcohol content indicated of
            record of the defendant’s blood?
                A. Um, 221 on admission.
                Q. And do you know whether that means whole blood or serum?
                A. This is serum.”

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       In addition, the court allowed the State to admit defendant’s medical records into evidence
       which indicated defendant’s ethanol intoxication level was “221 on admission.”
¶5         Following the conclusion of the State’s evidence, defendant moved for a directed verdict
       on the grounds the State had not produced any evidence converting his blood serum level to
       whole blood. Defendant also argued Brockmeier did not explain what “221” meant on
       defendant’s admitting orders.
¶6         In response, the prosecutor asked to reopen proofs so the trial court could take judicial
       notice of title 20, section 1286.40, of the Illinois Administrative Code, which divides the
       blood serum number by 1.18 to obtain the whole blood equivalent without reference to any
       unit of measurement. 20 Ill. Adm. Code 1286.40 (2012). The State also requested permission
       to recall Brockmeier as a witness, “just so there [was] no confusion” with regard to
       defendant’s blood alcohol level.
¶7         The court agreed to take judicial notice of the Administrative Code, but denied the
       State’s request to recall Brockmeier as a witness after the State rested. The trial court granted
       a directed verdict in favor of defendant with regard to driving too fast for conditions, but
       denied defendant’s motion on the DUI counts and improper lane usage.
¶8         After closing arguments, the trial court took the matter under advisement, and rendered
       a decision on February 3, 2011. In its oral order, the court stated “the real issue I have with
       this case and why I took it under advisement is whether there is sufficient evidence for me
       to draw a reasonable inference that the number 221 that is reflected in the ER record and that
       was testified to by the nurse means point 221 grams per milliliter of blood.” The trial court
       concluded that it could draw the reasonable inference from the evidence that the number 221
       meant 0.221 and, after applying the conversion factor, found that defendant’s blood alcohol
       level was 0.187. Based on this finding, the court entered a conviction under section 11-
       501(a)(1) of the Illinois Vehicle Code (Code). After finding that defendant’s blood alcohol
       level was above 0.08, the court applied the presumptions pursuant to section 11-501.2(b)(3)
       of the Code and also convicted defendant of DUI of a violation of section 11-501(a)(2) of
       the Code. See 625 ILCS 5/11-501.2(b)(3) (West 2010). Defendant appeals.

¶9                                           ANALYSIS
¶ 10       On appeal, defendant argues there was insufficient evidence for the trial court to infer
       that “221 on admission” meant a blood serum level of 0.221 comparing grams of alcohol per
       100 milliliters. The State contends the trial court drew a permissible inference based on the
       evidence presented during trial.
¶ 11       When faced with a challenge to the sufficiency of the evidence, the reviewing court must
       view the evidence in the light most favorable to the prosecution and determine whether any
       rational trier of fact could have found the elements of the crime proven beyond a reasonable
       doubt. People v. Collins, 106 Ill. 2d 237 (1985). The trier of fact is responsible for
       determining witness credibility, the weight to be given to their testimony, and the reasonable
       inferences to be drawn from the evidence. People v. Jimerson, 127 Ill. 2d 12 (1989).
¶ 12       The case law provides that “[a]n inference is a factual conclusion that can rationally be
       drawn by considering other facts. Thus, an inference is merely a deduction that the fact finder

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       may draw in its discretion, but is not required to draw as a matter of law.” People v. Funches,
       212 Ill. 2d 334, 340 (2004). In addition, “ ‘[w]here evidence is presented and such evidence
       is capable of producing conflicting inferences, it is best left to the trier of fact for proper
       resolution.’ ” (Emphasis added.) People v. Saxon, 374 Ill. App. 3d 409, 416 (2007) (quoting
       People v. McDonald, 168 Ill. 2d 420, 447 (1995)).
¶ 13        In the event that the State wishes for the court to convert a blood serum alcohol level to
       a whole blood alcohol level, the Administrative Code provides a blood serum or blood
       plasma alcohol concentration should be “divided by 1.18 to obtain a whole blood
       equivalent.” 20 Ill. Adm. Code 1286.40 (2012). The Code also provides, for purposes of the
       Code, “[a]lcohol concentration shall mean either grams of alcohol per 100 milliliters of blood
       or grams of alcohol per 210 liters of breath.” 625 ILCS 5/11-501.2(a)(5) (West 2010).
¶ 14        While the nurse’s testimony in this case established defendant’s blood serum level was
       “221 on admission,” her testimony did not indicate the hospital’s base unit of measurement
       for the amount of “221.” Without any testimony regarding the hospital’s unit of measurement
       underlying the expressed value of “221,” the court presumed “221,” as measured by the
       hospital, required the insertion of a decimal point before the number “221” and “mean[t]
       point 221 grams per milliliter of blood.”
¶ 15        The trial court relied on the decision of People v. Kotecki, 279 Ill. App. 3d 1006 (1996).
       However, in Kotecki, the hospital records at issue indicated a precise unit of measurement.
       In that case, the hospital records included a notation that the number “ ‘153’ ” was based on
       “ ‘UNITS’ ” identified as “ ‘MG/DL.’ ” Id. at 1013. Thus, the trial court in Kotecki had
       evidence that the measurement was “ ‘MG/DL’ ” and then reasonably inferred “ ‘MG/DL’ ”
       meant milligrams per deciliter. The reviewing court allowed the court to insert a decimal
       point to convert the expressed ratio to milliliters and held the trial judge did not “arbitrarily”
       insert a decimal point, but instead “examined the document in evidence and made a
       reasonable inference from that document.” (Emphasis added.) Id.
¶ 16        Unlike the facts in Kotecki, the State, in this case, did not present any evidence
       concerning the unit of measurement employed by the hospital when calculating defendant’s
       level of alcohol present in his blood serum. Here, Brockmeier did not inform the judge
       regarding the unit of measurement for the blood serum level of “221” and the hospital record
       itself does not identify the measurement unit the hospital employed. An inference is drawn
       by first considering other facts and evidence presented at trial. See, e.g., Saxon, 374 Ill. App.
       3d 409. Without this evidence, the trial judge’s inference regarding the unit of measurement
       employed by the hospital was predicated on “guess, speculation, or conjecture.” People v.
       Jones, 174 Ill. 2d 427, 430 (1996) (holding that, while it was not difficult to conclude that
       three untested packets contained cocaine, such a determination had to be based on evidence
       and not speculation).
¶ 17        When the State’s evidence is incomplete, the trier of fact may not fill in the gaps in the
       evidence to support a conviction. Even examining all of the evidence in the light most
       favorable to the prosecution, we conclude the State’s evidence did not allow the court to infer
       that “221” measured the ratio of grams of alcohol per 100 milliliters.
¶ 18        We agree the State did not present sufficient evidence concerning defendant’s blood


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       alcohol level to support the court’s finding that defendant was in violation of section 11-
       501(a)(1) of the Code. In addition, because the trial court applied that statutory presumption
       to convict defendant of a DUI under section 11-501(a)(2), this conviction must be vacated
       as well. People v. Green, 294 Ill. App. 3d 139 (1997) (statutory presumption only applies if
       there is evidence presented of whole blood alcohol concentration). Therefore, we reverse
       defendant’s convictions for DUI.

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

¶ 21      Reversed.




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