                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Love, 2013 IL App (3d) 120113




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    VERONICA A. LOVE, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-12-0113


Filed                      September 24, 2013


Held                       Defendant’s conviction for driving under the influence of alcohol was
(Note: This syllabus       reversed and the cause was remanded for a new trial where the trial
constitutes no part of     court’s instruction to the jury on the conversion factor applicable to
the opinion of the court   converting defendant’s blood serum alcohol content to whole blood
but has been prepared      alcohol content did not comply with the rules of evidence concerning
by the Reporter of         judicial notice because the instruction lacked language advising the jury
Decisions for the          that it was not mandated to accept the identified conversion factor or
convenience of the         adopt the calculations based on a formula using the conversion factor, and
reader.)
                           that error was not harmless.


Decision Under             Appeal from the Circuit Court of Kankakee County, No. 11-DT-103; the
Review                     Hon. Ronald J. Gerts, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for
Appeal                      appellant.

                            Jamie J. Boyd, State’s Attorney, of Kankakee (Judith Z. Kelly, of State’s
                            Attorneys Appellate Prosecutor’s Office, of counsel), for the People.


Panel                       PRESIDING JUSTICE WRIGHT delivered the judgment of the court,
                            with opinion.
                            Justices Carter and Holdridge concurred in the judgment, and opinion.




                                              OPINION

¶1          The State charged defendant, Veronica A. Love, with driving while under the influence
        of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS
        5/11-501(a)(2) (West 2010)). During the State’s case-in-chief, the court took judicial notice
        of the applicable conversion factor for blood serum alcohol content to whole blood alcohol
        content. Defendant requested the court to first inform the jury of the conversion factor as part
        of the formal jury instructions. However, ultimately, defendant objected to the language
        incorporated into the non-Illinois Pattern Jury Instruction (IPI) submitted to the jury.
        Following a guilty verdict, the trial court sentenced defendant to serve a term of court
        supervision. Defendant appeals, arguing that language in the non-IPI instruction was
        improper and the State’s evidence did not establish her guilt for DUI beyond a reasonable
        doubt. We reverse and remand for a new trial.

¶2                                                FACTS
¶3          The jury received the following evidence. On the night of April 15, 2011, defendant was
        present at her friend Michael Caspers’ restaurant, located in Momence, for about three hours
        while celebrating Caspers’ sixty-first birthday. During the celebration, Caspers served
        defendant two vodka drinks, and other bartenders may have served her additional drinks.
        Shortly after midnight, defendant left the party and drove away in her vehicle. Ten minutes
        after she left, Caspers received a telephone call from defendant explaining she had driven off
        the road about 2.5 miles from the restaurant. Caspers and his two daughters drove to the
        scene to check on defendant. Upon arrival, Caspers observed defendant sitting in her car,
        which was parked on the north side of the road. Defendant was crying, thought her leg was
        broken, and stated she ran off the roadway.
¶4          While at the scene, Caspers noticed that the car’s driver’s-side mirror was hanging down
        by its cable, the driver’s side of the vehicle had visible scratches, the windshield was cracked,


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       and the passenger-side rear tire was both flat and shredded. On the south side of the road,
       trees were damaged and a road sign was bent. About 100 yards away, Caspers noticed shreds
       of a rubber tire on the road.
¶5          Caspers testified that he was a former police sergeant, Breathalyzer operator, and
       accident reconstruction specialist. In his opinion, defendant was not under the influence of
       alcohol. Caspers believed that defendant had blown a tire, causing her to lose control and
       drive off the road. Casper opined that once defendant regained control of her car, she drove
       back on the road, and parked on the shoulder.
¶6          Caspers’ daughters offered to take defendant to the hospital and Caspers loaded
       defendant into his daughters’ car before returning to his restaurant. Shortly thereafter,
       Caspers received a call from his daughters informing him defendant refused to go to the
       hospital and was walking down the side of the road. Caspers returned to the scene and
       pleaded with defendant to go to the hospital. When defendant refused, Caspers’ daughter
       called 911. Three police officers and an ambulance arrived at the scene.
¶7          Kankakee County Sheriff’s Deputy Brooke Payne, one of the responding officers,
       testified that when she arrived, defendant was on a stretcher in the ambulance. Payne asked
       defendant for her driver’s license but defendant stated that she did not know where her purse
       was. Payne advised defendant her purse was next to defendant on the stretcher. Thereafter,
       defendant removed her wallet from the purse but was unable to retrieve her license from the
       wallet. Payne detected a hint of alcohol emanating from defendant and observed that
       defendant’s eyes were red and bloodshot. Defendant explained that her vehicle had gone off
       the road, but she was not sure why. Payne did not notice whether the vehicle’s tire was flat
       and shredded, but did observe tire tracks leading from the south side of the roadway into a
       ditch and then back onto the road. Payne concluded that defendant had driven off the road
       and interpreted the accident to indicate defendant was under the influence of alcohol.
¶8          Payne spoke to defendant again at the hospital, where she detected a stronger odor of
       alcohol than the odor she detected in the ambulance. Payne placed defendant under arrest for
       DUI and requested that defendant submit to chemical testing for alcohol. Defendant refused
       the officer’s request for chemical testing. Defendant was later charged with DUI under
       section 11-501(a)(2) of the Illinois Vehicle Code (Code). 625 ILCS 5/11-501(a)(2) (West
       2010).
¶9          Registered nurse Katen Hertzberg treated defendant at the hospital. Hertzberg testified
       that defendant smelled of alcohol and admitted to consuming alcohol. She testified that, in
       the regular course of providing medical treatment, she drew defendant’s blood and subjected
       it to a blood alcohol test.
¶ 10        The State offered into evidence the blood alcohol test report created by the hospital.
       Defendant objected to the report, arguing that it did not meet the requirements of a business
       record, in part because the report stated: “Results are intended to be used for medical
       purposes only and not for legal or employment purposes.”
¶ 11        The court overruled the defense’s objection and admitted the report as a business record
       under section 11-501.4(a) of the Code. 625 ILCS 5/11-501.4(a) (West 2010). The court
       explained that defendant’s concerns about the veracity of the document were relevant to the

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       weight the jury would give the document, but did not affect its admissibility. The hospital
       test record indicated defendant’s serum blood alcohol level was 190 milligrams per deciliter.
¶ 12        Outside the presence of the jury, the State requested that the court take judicial notice of
       the fact that 1.18 is the proper conversion factor to convert a serum blood alcohol level to
       whole blood alcohol level. In support of its request, the State cited to a provision of the
       Illinois Administrative Code (Administrative Code), which states, “The blood serum or
       blood plasma alcohol concentration result will be divided by 1.18 to obtain a whole blood
       equivalent.” 20 Ill. Adm. Code 1286.40, amended at 33 Ill. Reg. 8529 (eff. June 4, 2009).
       Defendant argued that if the court were to take judicial notice of the conversion factor, it
       would need to wait until the jury instruction phase to inform the jury. The court agreed. After
       taking judicial notice of the conversion factor, the court reminded the parties that a non-IPI
       instruction would be given to the jury explaining that the court had taken judicial notice of
       the conversion factor.
¶ 13        After the close of evidence, the court held a jury instructions conference. The State
       tendered a proposed non-IPI instruction, along with a copy of section 1286.40, title 20, of the
       Administrative Code. The defendant objected to the language in the State’s proposed
       instruction. The court adapted the proposed instruction, creating what would become
       People’s jury instruction No. 13, which was given to the jury. The instruction read:
            “In the course of this case, you have heard testimony about the results of a blood draw.
            There are two ways to measure blood alcohol concentration: by serum levels or by what
            is called whole blood. Whole blood is [the] standard used by law enforcement and legal
            proceedings, and it can be calculated by converting the serum level to the whole blood
            equivalent. In this case, the testimony was that the serum level was .190. The blood
            serum or blood plasma alcohol concentration results will be divided by 1.18 to obtain a
            whole blood equivalent. After conversion, the whole blood equivalent is .161.”
¶ 14        The jury was also given Illinois Pattern Jury Instructions, Criminal, No. 23.30 (4th Supp.
       2009) (hereinafter IPI Criminal 4th No. 23.30 (Supp. 2009)), which instructed, in part:
                “If you find that at the time the defendant drove a vehicle that the amount of alcohol
            concentration in the defendant’s blood or breath was 0.08 or more, you may presume that
            the defendant was under the influence of alcohol. You never are required to make this
            presumption. It is for the jury to determine whether the presumption should be drawn.
            You should consider all of the evidence in determining whether the defendant was under
            the influence of alcohol.”
¶ 15        The jury returned a verdict of guilty, and the trial court sentenced defendant to two years’
       court supervision.
¶ 16        Defendant appeals.

¶ 17                                        ANALYSIS
¶ 18                                      A. Jurisdiction
¶ 19      The State argues that this court lacks jurisdiction to consider defendant’s appeal since an
       order of court supervision may not result in a final judgment. The State construes the


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       language of Illinois Supreme Court Rule 604(b) (eff. July 1, 2006) to allow appeals from the
       conditions of court supervision but not from the underlying finding of guilty.
¶ 20       The Illinois Constitution prohibits appeals from nonfinal judgments. Ill. Const. 1970, art.
       VI, § 6. However, the state constitution grants the Illinois Supreme Court the authority to
       “provide by rule for appeals to the Appellate Court from other than final judgments.” Id. Our
       supreme court authorizes appeals from court supervision orders in Illinois Supreme Court
       Rule 604(b) (eff. July 1, 2006). Rule 604(b) provides a defendant “may appeal from the
       judgment and may seek review of the conditions of supervision, or of the finding of guilt or
       the conditions of the sentence, or both.” Id.
¶ 21       Clearly, Rule 604(b) provides a defendant the right to appeal both the finding of guilty
       and the conditions of supervision. See People v. Utsinger, 2013 IL App (3d) 110536.
       Therefore, under Rule 604(b), we conclude this court has jurisdiction over the present appeal
       and turn to the issues presented by defendant for our review.

¶ 22                                     B. Jury Instruction
¶ 23        Defendant asks this court to reverse her conviction based on an error that occurred when
       the court instructed the jury concerning the judicially noticed conversion factor. As a
       preliminary matter, we observe defendant has not requested this court to review the court’s
       decision to allow the jury to substantively consider the hospital’s blood test results showing
       defendant’s serum blood alcohol level was 190 milligrams per deciliter.
¶ 24        Instead, defendant argues the jury instruction concerning the calculations to convert
       defendant’s purported serum blood alcohol level to a simple blood alcohol level constitutes
       reversible error. Defendant claims the instruction was improper because the jury was not
       instructed that “it did not have to apply the conversion factor.” We review a trial court’s
       decision to give a particular jury instruction for an abuse of discretion. People v. Mohr, 228
       Ill. 2d 53 (2008).
¶ 25        On appeal, defendant does not dispute the applicable conversion factor was 1.18, based
       on section 1286.40 of title 20 of the Administrative Code. Nor does defendant argue the
       conversion factor of 1.18 represents an adjudicative fact amenable to judicial notice. In fact,
       in People v. Thoman, 329 Ill. App. 3d 1216, 1220 (2002), the court recognized the parties
       could have properly asked “the trial court to take judicial notice of, and instruct the jury on,
       the appropriate conversion factor.”1
¶ 26        The recently adopted Illinois Rule of Evidence 201 (eff. Jan. 1, 2011) governs judicial
       notice of adjudicative facts and provides judicial notice may be taken at any stage of the
       proceeding (Ill. R. Evid. 201(f) (eff. Jan. 1, 2011)). When a court allows a party’s request to
       prove an adjudicative fact by judicial notice in a criminal proceeding, “the court shall inform


               1
                Defendant suggested the evidence subject to judicial notice should be presented to this jury
       by the court and in the form of a jury instruction. Hence, we do not express an opinion with respect
       to whether the purported instruction error could have been avoided if the State simply had published
       the judicially noticed fact to the jury before the State rested its case.

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       the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.”
       Ill. R. Evid. 201(g) (eff. Jan. 1, 2011). This directive that the jury may accept or reject
       judicially noticed facts is rooted in the criminal defendant’s constitutional right to a jury trial.
       U.S. Const., amend. VI; Ill. Const. 1970, art. I, §§ 8, 13; see Fed. R. Evid. 201, Notes of
       Committee on the Judiciary (“mandatory instruction to a jury in a criminal case to accept as
       conclusive any fact judicially noticed is inappropriate because contrary to the spirit of the
       Sixth Amendment right to a jury trial”).
¶ 27        Consequently, we next focus on the language of the jury instruction at issue to determine
       whether it complies with the mandates of Rule 201. The instruction provides:
            “In this case, the testimony was that the serum level was .190. The blood serum or blood
            plasma alcohol concentration results will be divided by 1.18 to obtain a whole blood
            equivalent. After conversion, the whole blood equivalent is .161.” (Emphases added.)
       Obviously, the instruction did not include any cautionary language advising the jury it was
       not mandated to accept the identified applicable conversion factor or adopt the calculations
       based on a formula using this conversion factor and other contested facts of record.
¶ 28        It is significant to the outcome of this issue that the instruction submitted to this jury was
       not limited to the single judicially noticed adjudicative fact, that is, the applicable conversion
       factor set out in the Administrative Code. Instead, the instruction contained another reference
       to a second significant piece of evidence, defendant’s purported blood serum level, which
       was not subject to judicial notice and had been introduced to the jury during the testimony
       of nurse Hertzberg. Consequently, the non-IPI instruction became somewhat testimonial in
       that the court provided the calculations for the jury using a formula that included a contested
       fact, the defendant’s actual blood serum level, multiplied by the conversion factor of 1.18.
       The instruction declared, “[a]fter conversion, the whole blood equivalent is .161.” (Emphasis
       added.) Therefore, we conclude the court erred by submitting this jury instruction in this case
       because it does not comply with the rules of evidence concerning judicial notice.
¶ 29        Next, we examine whether the court’s error was harmless. In this context, we must ask:
       “ ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant
       guilty absent the error?’ ” Rivera, 227 Ill. 2d at 21 (quoting Neder v. United States, 527 U.S.
       1, 18 (1999)).
¶ 30        In another instruction, the jury learned that if it found defendant’s whole blood alcohol
       content was greater than 0.08, it “may” presume that defendant was “under the influence of
       alcohol.” IPI Criminal 4th No. 23.30 (Supp. 2009). However, the judicial notice instruction
       submitted to the jury, over defendant’s objection, did not contain similar limiting language
       suggesting the jury was not mandated to conclude defendant’s blood alcohol level was 0.161.
       The jury could have easily viewed the calculation included a mandated fact showing
       defendant’s blood alcohol level twice the amount, namely 0.08, that supported a strong but
       permissive presumption of intoxication. Thus, we conclude the instructional error contained
       in this record should not be viewed as harmless.

¶ 31                                  C. Reasonable Doubt
¶ 32       Defendant also requests this court to reverse the conviction in this case because the State

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       failed to prove beyond a reasonable doubt that defendant was driving while “under the
       influence,” an essential element of a conviction for DUI under section 11-501(a)(2) of the
       Code. 625 ILCS 5/11-501(a)(2) (West 2010). If defendant succeeds upon this claim,
       principles of double jeopardy demand that defendant be acquitted without retrial. Burks v.
       United States, 437 U.S. 1 (1978); People v. Woodall, 61 Ill. 2d 60 (1975).
¶ 33       When reviewing a challenge to the sufficiency of the evidence, this court must determine
       whether, viewing the evidence in the light most favorable to the State, any rational trier of
       fact could have found all the statutory elements of the crime proved beyond a reasonable
       doubt. People v. Collins, 106 Ill. 2d 237 (1985). The Collins standard is less exacting than
       the harmless error standard because the Collins standard considers the evidence in a light
       most favorable to the State and asks whether any rational trier of fact could have found the
       elements of the crime beyond a reasonable doubt.
¶ 34       Significantly, defendant was charged with DUI under section 11-501(a)(2) of the Code.
       625 ILCS 5/11-501(a)(2) (West 2010). Subsection (a)(2) proscribes a person from driving
       a vehicle while “under the influence of alcohol.” Id. The issue on appeal is whether the State
       proved beyond a reasonable doubt that defendant was under the influence of alcohol even
       though she refused to submit to chemical testing pursuant to the officer’s request. “[U]nder
       the influence of alcohol” means under the influence to a degree that renders the driver
       incapable of driving safely. People v. Weathersby, 383 Ill. App. 3d 226, 229 (2008).
¶ 35       Intoxication is a question of fact and may be proved in a number of ways. People v.
       Hires, 396 Ill. App. 3d 315 (2009). Circumstantial evidence alone may be sufficient to prove
       a defendant guilty of DUI. People v. Diaz, 377 Ill. App. 3d 339 (2007). Likewise, testimony
       from the arresting officer alone may be sufficient to prove guilt beyond a reasonable doubt.
       People v. Janik, 127 Ill. 2d 390 (1989). Specifically, testimony that a defendant’s breath
       smelled of alcohol and that her eyes were glassy and bloodshot is relevant evidence of the
       influence of alcohol. People v. Elliott, 337 Ill. App. 3d 275 (2003). If a defendant refuses to
       submit to chemical testing, that can be evidence of her consciousness of guilt. People v.
       Jones, 214 Ill. 2d 187 (2005).
¶ 36        In this case, defendant admitted she consumed alcohol but denied she was under the
       influence. Similarly, her friend, Caspers, confirmed defendant consumed alcohol shortly
       before the accident but opined the accident resulted from a blown tire. In contrast, Officer
       Payne testified she detected an odor of alcohol emanating from defendant and that
       defendant’s eyes were red and bloodshot. The officer noticed defendant was confused about
       the location of her personal property, considered the circumstances of the accident, and
       concluded defendant was under the influence. Once at the hospital, the officer noticed an
       even stronger odor of alcohol about the defendant’s person and requested defendant to
       consent to testing to determine her blood alcohol level. Defendant refused Payne’s request
       for chemical testing for alcohol, evidencing her consciousness of guilt. In addition, the
       attending nurse at the hospital smelled alcohol emanating from defendant and the hospital
       blood serum test result confirmed the presence of alcohol in defendant’s body, regardless of
       the precise amount. In addition, the jury received testimony revealing defendant exhibited
       unusual behavior when Caspers and his daughters attempted to transport her to the hospital.


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¶ 37       We conclude this evidence, viewed in the light most favorable to the State, would be
       sufficient to prove defendant guilty beyond a reasonable doubt of DUI under section 11-
       501(a)(2) of the Code, even without the conversion factor subject to the jury instruction
       pertaining to judicial notice. Therefore, we decline to reverse defendant’s conviction outright
       due to the insufficiency of the evidence. However, her conviction is reversed and the cause
       remanded for a new trial with a properly instructed jury.

¶ 38                                      CONCLUSION
¶ 39       The decision of the circuit court of Kankakee County is reversed. The cause is remanded
       for further proceedings consistent with this opinion.

¶ 40      Reversed and remanded.




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