                                                                                FILED
                                   2014 IL App (4th) 131128                  November 24, 2014
                                                                                 Carla Bender
                                         NO. 4-13-1128                       4th District Appellate
                                                                                   Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, )   Appeal from
          Plaintiff-Appellee,        )   Circuit Court of
          v.                         )   Champaign County
DANA R. HASSELBRING,                 )   No. 11CF880
          Defendant-Appellant.       )
                                     )   Honorable
                                     )   John R. Kennedy,
                                     )   Judge Presiding.
____________________________________________________________

             JUSTICE POPE delivered the judgment of the court, with opinion.
             Justices Knecht and Turner concurred in the judgment and opinion.

                                           OPINION

¶1           In September 2013, a jury convicted defendant, Dana R. Hasselbring, of

aggravated driving with a drug, substance, or compound in his breath, blood, or urine. 625 ILCS

5/11-501(a)(6), (d)(1)(F) (West 2010). In December 2013, the trial court sentenced defendant to

11 years' imprisonment.

¶2           Defendant appeals, arguing (1) his prosecution was barred by the compulsory

joinder provisions of sections 3-3(b) and 3-4(b)(1) of the Criminal Code of 1961 (Code) (720

ILCS 5/3-3(b), 3-4(b)(1) (West 2010)); (2) the test results of his blood and urine samples should

have been suppressed where no probable cause existed to justify the warrantless search; (3) the

trial court erred in permitting testimony from the State's expert which was not properly disclosed

and for which she was not properly qualified; (4) the court erred in refusing defendant's tendered
jury instructions; (5) the court erred in the manner it answered the jury's question during

deliberations; (6) the evidence was insufficient to convict him where he did not have a controlled

substance in his body at the time of the accident; and (7) he received an excessive sentence. We

reverse defendant's conviction and remand for a new trial.

¶3                                       I. BACKGROUND

¶4            On the evening of September 18, 2010, defendant and a friend, Eddie Piat, were

riding their motorcycles with a group of other riders. Nicholas Vandervinne, an eyewitness who

testified at trial, had stopped for a red light at an intersection at approximately 8 p.m. on the night

of the incident. He observed a group of six or seven motorcycles in the other lane. When the

light turned green, the motorcycles in the front of the group "took off like a flash." Shortly

thereafter, Vandervinne observed sparks and smoke ahead of him. Defendant had collided with

Piat. Vandervinne did not see the collision.

¶5            Officer Brian Bednarz, a certified accident reconstructionist with the Champaign

police department, estimated Piat's motorcycle was traveling between 57 and 79 miles per hour

at the time of impact. He also estimated defendant was traveling between 60 and 82 miles per

hour when he collided with Piat.

¶6            Following the accident, both Piat and defendant were taken to the hospital. Piat

arrived in critical condition, having sustained a serious head injury as a result of the accident.

Neither defendant nor Piat was wearing a helmet.

¶7            City of Champaign police officer Brian Greear interviewed defendant at the

hospital as part of his investigation of the accident. Defendant told Greear he and Piat were

riding in the same lane and had stopped at the red light. When the light changed, they both


                                                 -2-
accelerated from the intersection. After two or three blocks, defendant turned his head to look

behind him to check to see if the other lane was open before changing lanes. When he looked

back, Piat's motorcycle had rapidly decelerated in front of him. Defendant attempted to apply

the brakes but collided with Piat's monocycle.

¶8            Officer Greear then issued defendant two citations. One of the citations charged

defendant with failure to reduce speed to avoid an accident. The other citation was for not

having a motorcycle license. According to Greear, other than defendant's "questionable driving

behavior," "there was no actual smell of alcohol or any other signs of impairment." However,

because the accident resulted in a serious injury, Greear read defendant the statutory "Warning to

Motorist" and asked him to provide a sample of his urine and blood for testing. Defendant

consented and a nurse collected the samples. The only positive test result was for

benzoylecgonine, a metabolite of cocaine, which was found in both defendant's blood and urine.

A metabolite is a byproduct remaining in the body after metabolism has taken place.

¶9            On October 21, 2010, the trial court entered guilty findings in both traffic cases

(Champaign County case Nos. 10-TR-19799, 10-TR-19800), apparently following a bench trial.

(However, the record is not clear on how those cases were resolved, i.e., by plea or bench trial.)

¶ 10          Piat remained in the hospital for 45 days following the accident before dying on

November 1, 2010. According to Doctor Nicole Howell, the pathologist who performed the

autopsy, Piat died from respiratory failure caused by the brain injury he sustained in the accident.

¶ 11          On June 3, 2011, the State charged defendant with aggravated driving with a drug,

substance, or compound in his breath, blood, or urine (625 ILCS 5/11-501(a)(6), (d)(1)(F) (West

2010) (the aggravating factor being Piat's death). The State alleged defendant "drove or was in


                                                 -3-
physical control of a motor vehicle at a time when there [was] any amount of a drug, substance,

or compound in [his] breath, blood, or urine resulting from the unlawful use or consumption of a

controlled substance listed in the Illinois Controlled Substances Act, and was involved in a motor

vehicle accident that resulted in the death of Eddie Piat and the violation was a proximate cause

of the death."

¶ 12             Prior to trial, defendant filed a number of motions to dismiss, all of which the trial

court denied. Defendant sought appellate review of those denials through an interlocutory appeal

to this court. However, on March 8, 2013, we dismissed that interlocutory appeal for lack of

appellate jurisdiction because defendant failed to file a timely notice of appeal. People v.

Hasselbring, 2013 IL App (4th) 120636-U. The matter then proceeded to trial in September

2013.

¶ 13             During trial, the State's expert, Tara Kerns, testified, "Benzoylecgonine is a cocaine

metabolite. That means that at some point cocaine was ingested. It breaks down into

metabolites. One of them is Benzoylecgonine, which we test for. It is similar to digestion.

When you ingest food, it has to break down into other substances. Drugs are the same way."

When asked what the presence of benzoylecgonine in defendant's blood and urine indicated,

Kerns responded, "It just told me that cocaine was ingested within the last 24 to 28 hours."

Kerns testified cocaine is a Schedule II controlled substance. On cross-examination, the

following colloquy took place:

                          "Q. [DEFENSE COUNSEL:] You found no cocaine in either

                 the blood or urine of [defendant,] is that correct?

                          A. Correct.


                                                   -4-
           Q. The only thing you found was Benzoylecgonine, which is

a metabolite; correct?

           A. Correct.

           Q. It's not a controlled substance; is it?

           A. I'm not sure about that.

           Q. You don't know if—

           A. Benzoylecgonine is not listed as a controlled substance,

but—

           Q. Yeah, Okay. So—

           A. —it can only come from cocaine.

           Q. So it's not listed as [a] controlled substance in the very

statute we're dealing with; correct?

           A. Correct.

                                    ***

           Q. Let's see if I understand this. You indicated that

Benzoylecgonine is not a drug listed as a controlled substance,

correct?

           A. Correct.

           Q. And cocaine is; correct?

           A. Yes.

           Q. And you didn't find any cocaine?

           A. No, I did not."


                                     -5-
¶ 14          Defendant did not present any testimony. Instead, defendant requested the trial

court take notice of a number exhibits and statutes, which the court did. Defendant's theory of

the case was the evidence was insufficient to convict him of aggravated driving with a drug,

substance, or compound in his breath, blood, or urine where he did not have a controlled

substance in his body at the time of the accident. Defendant argued benzoylecgonine resulted

from the metabolic process and not from the ingestion of cocaine.

¶ 15          During the jury instruction conference, defendant tendered a nonpattern instruction,

No. 5, which stated: "The metabolite Benzoylecgonine is not a drug, substance, or controlled

substance listed in the Illinois Controlled Substances Act." The following colloquy then took

place regarding that instruction:

                         "[DEFENSE COUNSEL]: It, it simply instructs the jury as

              to what, in fact, the law is with respect to Benzoylecgonine. I think

              that the evidence—and I've asked you and you've already taken

              judicial notice of the statute, Benzoylecgonine is not included as a

              controlled substance so, therefore I, think it would aid the jury in, in

              interpreting this case and in, instructing them properly with respect to

              the law.

                         THE COURT: Okay. Ruling on five is five is refused.

              One, I don't think it's an issue before the jury but, two, I believe it's

              an inaccurate statement of the law.

                         Okay. Five is refused."

¶ 16          Approximately 40 minutes into its deliberations, the jury sent a question to the trial


                                                   -6-
court, asking "does the cocaine metabolite qualify as a substance as stated in proposition number

two?" The second proposition of People's instruction No. 12 (Illinois Pattern Jury Instructions,

Criminal, No. 23.64A (4th ed. Supp. 2011) (IPI Criminal 4th No. 23.64A (Supp. 2011))) stated

the following: "That at the time the defendant drove a motor vehicle, there was any amount of a

drug, substance, or intoxicating compound in his breath, blood[,] or urine resulting from the

unlawful use or consumption of cocaine, a controlled substance ***."

¶ 17          The State suggested the "court direct the jury that they've heard testimony

concerning the cocaine metabolite and that [the] testimony is what they have to rely on to

determine the answer to the question." Defendant agreed with the State's position, stating the

following: "obviously, based on my earlier positions, I would ask that you answer the question

no. [However,] I'm realistic. *** I agree with counsel, something to the effect that *** you need

to look at the jury instructions, consider the evidence that was presented, something to that

effect." The trial court, however, disagreed with the parties' recommendations and the following

colloquy took place:

                       "THE COURT: Okay. I'm going to deny the request for the

              suggested no from the defendant and also I'm not accepting—at least

              I don't think I'm accepting the suggested response from the [S]tate

              because this really asks for a—for clear legal direction from the

              court. It's not really a factual question or one about review of the

              evidence. It's really a matter asking the court to give a legal

              definition and so the court should answer that as closely as possible

              by giving a direct answer and then explaining without alluding to


                                                -7-
facts in the answer, so the answer the court is going to give is, [']yes,

cocaine metabolite qualifies as a drug, substance[,] or intoxicating

compound within the meaning of proposition two.['] I believe that

responds to their question and correctly states the law to them, so

that's the response that's going to be given. I'm going to write that

out carefully.

         [DEFENSE COUNSEL]: Well, show my—show my

objection, Judge. You might as well just convict him right now

yourself because that's what you're doing. I mean, the whole issue

here is the [S]tate never offered any direction as to this. They didn't

even ask now for you to do this. You know, you're just giving him a,

a conviction. That's what you're doing. And I think you realize that.

But, I mean, Judge, this is—why did we go through all of this? I

mean, you know, the whole issue was that the jury had to decide

whether this was or was not a substance that would be considered.

For you to preempt the jury, to take that from them basically by

telling them, by instructing them, well, then it's over.

         THE COURT: And the written response of the court

provides cocaine metabolite qualifies as a drug, substance[,] or

intoxicating compound within the meaning of proposition two. And

I've put my name to it. And I'm going to ask the court officer to

deliver that.


                                  -8-
              And then anything else before we recess [(addressing the assistant

              State's Attorneys)]?

                        [ASSISTANT STATE'S ATTORNEY]: No, thank you.

                        THE COURT: Anything else [(addressing defendant's

              counsel)]?

                        [DEFENDANT'S COUNSEL]: I'm, I'm going to move for a

              mistrial with that ruling. I think that you've taken away his right to a

              jury trial.

                        THE COURT: Okay. Further argument?

                            [DEFENDANT'S COUNSEL]: No.

                        THE COURT: Okay. Motion is denied."

¶ 18          Approximately 30 minutes later, the jury returned a guilty verdict. The jury verdict

form (People's instruction No. 15 (see Illinois Pattern Jury Instructions, Criminal, No. 15 (4th ed.

2000))) stated "We, the jury, find [defendant] guilty of Aggravated Driving with a Drug,

Substance[,] or Intoxicating Compound in [his] Breath, Blood[,] or Urine."

¶ 19          On October 25, 2013, defendant filed a motion for a new trial, arguing the trial

court erred in (1) denying his pretrial motions, (2) denying his motions during trial, (3) allowing

certain jury instructions offered by the State, (4) denying all of his jury instructions, (5) the way

it answered the jury's question during deliberations, and (6) denying his motion for a directed

verdict.

¶ 20          Following a November 8, 2013, hearing, the trial court denied defendant's motion.

Thereafter, the court sentenced defendant to 11 years' imprisonment.


                                                 -9-
¶ 21          On December 3, 2013, defendant filed a motion to reduce sentence, arguing the

trial court abused its discretion by improperly considering facts not in evidence, failing to follow

mitigation guidelines, and imposing an excessive sentence.

¶ 22          Following a December 19, 2013, hearing, the trial court denied defendant's

motion.

¶ 23          This appeal followed.

¶ 24                                      II. ANALYSIS

¶ 25          On appeal, defendant argues the following: (1) his prosecution was barred by the

compulsory joinder provisions of sections 3-3(b) and 3-4(b)(1) of the Code (720 ILCS 5/3-3(b),

3-4(b)(1) (West 2010)); (2) the test results of his blood and urine samples should have been

suppressed where no probable cause existed to justify the warrantless search; (3) the trial court

erred in permitting testimony from the State's expert which was not properly disclosed and for

which she was not properly qualified; (4) the court erred in refusing defendant's tendered jury

instructions; (5) the court erred in the manner it answered the jury's question during

deliberations; (6) the evidence was insufficient to convict him where he did not have a controlled

substance in his body at the time of the accident; and (7) he received an excessive sentence.

¶ 26                                  A. Compulsory Joinder

¶ 27          We first consider whether defendant could properly have been prosecuted for

aggravated driving under the influence. Defendant argues the State's prosecution was barred

because a conviction had already been obtained for failing to reduce speed to avoid an accident

and both offenses were based on the same set of facts.

¶ 28          At issue is the proper application of the compulsory joinder provisions found in


                                               - 10 -
sections 3-3 and 3-4 of the Code (720 ILCS 5/3-3, 3-4 (West 2010)). Section 3-4(b)(1) provides

the following:

                       "(b) A prosecution is barred if the defendant was formerly

              prosecuted for a different offense, or for the same offense based upon

              different facts, if that former prosecution:

                                  (1) resulted in either a conviction or an

                       acquittal, and the subsequent prosecution is for an

                       offense of which the defendant could have been

                       convicted on the former prosecution; or was for an

                       offense with which the defendant should have been

                       charged on the former prosecution, as provided in

                       Section 3-3 of this Code (unless the court ordered a

                       separate trial of that charge); or was for an offense

                       that involves the same conduct, unless each

                       prosecution requires proof of a fact not required on

                       the other prosecution, or the offense was not

                       consummated when the former trial began[.]" 720

                       ILCS 5/3-4(b)(1) (West 2010).

Section 3-3, in turn, provides:

              "(a) When the same conduct of a defendant may establish the

              commission of more than one offense, the defendant may be

              prosecuted for each such offense.


                                                  - 11 -
                       (b) If the several offenses are known to the proper

              prosecuting officer at the time of commencing the prosecution and

              are within the jurisdiction of a single court, they must be prosecuted

              in a single prosecution, except as provided in Subsection (c), if they

              are based on the same act.

                       (c) When 2 or more offenses are charged as required by

              Subsection (b), the court in the interest of justice may order that one

              or more of such charges shall be tried separately." 720 ILCS 5/3-3

              (West 2010).

¶ 29          In sum, section 3-3(b) applies where a defendant faces multiple charges arising out

of the same conduct and provides, in pertinent part, "[i]f the several offenses are known to the

proper prosecuting officer at the time of commencing the prosecution and are within the

jurisdiction of a single court, they must be prosecuted in a single prosecution *** if they are

based on the same act." 720 ILCS 5/3-3(b) (West 2010). Thus, a prosecution is ordinarily

barred if (1) a prior prosecution exists; (2) the offense charged in the current prosecution was

known to the proper prosecuting officer at the time of commencing the prosecution for the prior

offense; and (3) both prosecutions arise from the same act.

¶ 30          However, it is well settled the compulsory joinder provisions of traffic and felony

charges do not apply to offenses charged via a uniform citation by a police officer at the time of

an arrest. See People v. Kizer, 365 Ill. App. 3d 949, 955-56, 851 N.E.2d 266, 270-71 (2006).

Indeed, a long line of case law provides a defendant can be separately prosecuted on traffic

citations filed by police officers, independent from felony charges arising out of the same


                                               - 12 -
incident filed by a State's Attorney by either an information or grand jury indictment. People v.

Jackson, 118 Ill. 2d 179, 192, 514 N.E.2d 983, 988-89 (1987), overruled on other grounds,

People v. Stefan, 146 Ill. 2d 324, 586 N.E.2d 1239 (1992); People v. Kazenko, 2012 IL App (3d)

110529, 972 N.E.2d 815 (applying the Jackson analysis); Kizer, 365 Ill. App. 3d at 955-56, 851

N.E.2d at 270-71; People v. Hogan, 186 Ill. App. 3d 267, 269, 542 N.E.2d 178, 179 (1989);

People v. Crowe, 195 Ill. App. 3d 212, 218, 552 N.E.2d 5, 9-10 (1990) (section 3-3 does not

require the State to prosecute a felony charge in the same proceeding as a related traffic offense

charged by uniform citation and complaint)

¶ 31          Although defendant appears to concede this point, recognizing in his brief section

3-3(b) "does not apply to a case in which a defendant pleads [guilty] to a traffic citation," he cites

the supreme court's opinion in People v. Quigley, 183 Ill. 2d 1, 16, 697 N.E.2d 735, 742 (1998),

for the proposition section 3-3(b) required the State to prosecute the felony charge in the same

proceeding as the misdemeanor. However, Quigley is easily distinguishable.

¶ 32          In the misdemeanor case in Quigley, the State's Attorney formally charged the

defendant with driving under the influence (DUI) by filing an information. Quigley, 183 Ill. 2d

at 4, 697 N.E.2d at 737. Thereafter, the State charged the defendant with aggravated DUI.

Quigley, 183 Ill. 2d at 5, 697 N.E.2d at 737. In the case here, however, a police officer charged

defendant with a uniform citation, i.e., a traffic ticket, for his failure to reduce speed to avoid an

accident. "The supreme court has held that 'the compulsory-joinder provisions of section 3-3 do

not apply to offenses that have been charged by the use of a uniform citation and complaint form

provided for traffic offenses.' " (Emphasis in original.) Kizer, 365 Ill. App. 3d at 955, 851




                                                 - 13 -
N.E.2d at 270 (quoting Jackson, 118 Ill. 2d at 192, 514 N.E.2d at 988-89). As a result,

defendant's argument fails.

¶ 33           Moreover, Piat did not die until November 1, 2010, after the trial court entered its

guilty findings on the uniform citations in October. Thus, the aggravated-driving-under-the-

influence offense under section 11-501(d)(1)(F) could not have been charged at the time the

uniform citations were issued.

¶ 34                                   B. Motion To Suppress

¶ 35           Defendant argues the trial court erred in denying his motion to suppress the test

results of his blood and urine samples because Officer Greear had no probable cause to justify

the request.

¶ 36           Section 11-501.6(a) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-

501.6(a) (West 2010)) provides any person who drives or is in actual control of a motor vehicle

upon the public highways and who has been involved in an accident resulting in personal injury

or death for which he has been arrested, as evidenced by the issuance of a traffic ticket, shall be

deemed to have given consent for a blood-alcohol test. For purposes of this section, a personal

injury includes:

               "any type A injury as indicated on the traffic accident report

               completed by a law enforcement officer that requires immediate

               professional attention in either a doctor's office or a medical facility.

               A type A injury shall include severely bleeding wounds, distorted

               extremities, and injuries that require the injured party to be carried

               from the scene." 625 ILCS 5/11-501.6(g) (West 2010).


                                                 - 14 -
¶ 37          The supreme court has held type-A injuries are limited to severely bleeding

wounds, distorted extremities, or injuries that require the injured party to be carried from the

scene. Fink v. Ryan, 174 Ill. 2d 302, 310, 673 N.E.2d 281, 286 (1996). In Fink, the supreme

court held section 11-501.6 of the Vehicle Code is constitutional because it was narrowly drawn

to apply only to drivers involved in more serious accidents. Fink, 174 Ill.2d at 311, 673 N.E.2d

at 286.

¶ 38          In this case, defendant does not dispute Piat was injured to such an extent as to

satisfy the section 11-501.6(g) type-A injury requirement. Indeed, the record reflects Piat was

taken from the scene in an ambulance and admitted to the hospital in critical condition, where he

remained for 45 days until his death. Clearly, Piat's injuries are of the type contemplated by the

Vehicle Code and the supreme court.

¶ 39          Defendant next argues section 11-501.6 of the Vehicle Code is facially

unconstitutional in light of the United States Supreme Court's decision in Missouri v. McNeely,

569 U.S. __, 133 S. Ct. 1552 (2013). We disagree.

¶ 40          Whether a statute is constitutional is a question of law to be reviewed de novo.

People v. Sharpe, 216 Ill. 2d 481, 486-87, 839 N.E.2d 492, 497 (2005). Statutes are presumed

constitutional, and we have a duty to construe a statute in a manner that upholds its validity and

constitutionality if it can be reasonably done. People v. Aguilar, 2013 IL 112116, ¶ 15, 2 N.E.3d

321. The party challenging the constitutionality of a statute carries the burden of proving that the

statute is unconstitutional. Aguilar, 2013 IL 112116, ¶ 15, 2 N.E.3d 321. As stated by the

supreme court:




                                               - 15 -
              "A facial challenge to the constitutionality of a statute is the most

              difficult challenge to mount. [Citations.] A statute is facially

              unconstitutional only if there are no circumstances in which the

              statute could be validly applied. [Citations.] The fact that the statute

              could be found unconstitutional under some set of circumstances

              does not establish the facial invalidity of the statute. [Citation.]

              Thus, a facial challenge must fail if any situation exists where the

              statute could be validly applied." People v. Davis, 2014 IL 115595,

              ¶ 25, 6 N.E.3d 709.

¶ 41          In McNeely, the Supreme Court considered "whether the natural metabolization of

alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth

Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases."

McNeely, 569 U.S. at __, 133 S. Ct. at 1556. The Court found a per se exigency did not exist

with regard to nonconsensual blood tests. Instead, the Court held each case had to be judged on

its own particular set of facts. McNeely, 569 U.S. at __, 133 S. Ct. at 1561. We note McNeely

did not reverse the Court's decision in Schmerber v. California, 384 U.S. 757 (1966), which

stands for the proposition a warrantless nonconsensual blood draw can be performed in certain

situations depending on the totality of the circumstances in a particular case. Schmerber, 384

U.S. at 770-72. In fact, the Court in McNeely noted the following:

                       "In short, while the natural dissipation of alcohol in the

              blood may support a finding of exigency in a specific case, as it did

              in Schmerber, it does not do so categorically. Whether a warrantless


                                                - 16 -
              blood test of a drunk-driving suspect is reasonable must be

              determined case by case based on the totality of the circumstances."

              McNeely, 569 U.S. at __, 133 S. Ct. at 1563.

¶ 42          As such, we disagree with defendant's argument McNeely "calls into question

'implied consent' laws throughout the nation and has effectively overturned those that require no

probable cause of impairment to administer chemical testing such as 625 ILCS 11-501.6."

Moreover, as stated, a statute is only facially unconstitutional if it can never be constitutionally

applied. See Davis, 2014 IL 115595, ¶ 25, 6 N.E.3d 709. Section 11-501.6 does not create a per

se exception to the fourth amendment's warrant requirement. An individual in defendant's

position can withdraw his consent and refuse the officer's request to provide a blood sample. In

this case, defendant chose to consent to provide a blood sample at the officer's request. "A well-

settled, specific exception to the fourth amendment's warrant requirement is a search conducted

pursuant to consent." People v. Pitman, 211 Ill. 2d 502, 523, 813 N.E.2d 93, 107 (2004) (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).

¶ 43          In sum, because (1) a type-A injury occurred, (2) section 11-501.6 of the Vehicle

Code is not facially unconstitutional, and (3) defendant voluntarily consented to the blood draw,

the trial court did not abuse its discretion in denying defendant's motion to suppress the test

results of his blood and urine samples.

¶ 44                          C. Jury Question During Deliberations

¶ 45          Defendant argues the trial court erred in the manner it answered the jury's question

during its deliberations. Defendant contends the court's answer took the case from the jury and

improperly directed a verdict in the State's favor.


                                                - 17 -
¶ 46          "Determining the propriety of the trial court's response to a jury question

accordingly requires a two-step analysis. First, we must determine whether the trial court should

have answered the jury's question. We review the trial court's decision on this point for abuse of

discretion. [Citation.] Second, we must determine whether the trial court's response to the

question was correct. Because this is a question of law, we review this issue de novo.

[Citation.]" People v. Leach, 2011 IL App (1st) 090339, ¶ 16, 952 N.E.2d 647.

¶ 47          A judge has a duty to answer the jury's question if clarification is requested, the

original instructions are incomplete, the jurors are confused, or the question concerns a point of

law arising from the facts over which doubt or confusion exists. People v. Reid, 136 Ill. 2d 27,

39, 554 N.E.2d 174, 179 (1990). However, in providing an explanation to a jury, a trial court

may not misstate the law or infringe on the province of the jury. People v. Banks, 281 Ill. App.

3d 417, 421-22, 667 N.E.2d 118, 121 (1996). Further, "a judge should not answer a question

from a jury that calls for the judge to make a conclusion on the issues at trial." People v. Boose,

256 Ill. App. 3d 598, 604, 627 N.E.2d 1276, 1280 (1994). "A circuit court may also refuse to

answer an inquiry by a jury if an answer or explanation by the court would cause the court to

express an opinion which would probably direct a verdict one way or the other." Reid, 136 Ill.

2d at 39, 554 N.E.2d at 179-80 (citing People v. Charles, 46 Ill. App. 3d 485, 489, 360 N.E.2d

1214, 1216-17 (1977)).

¶ 48          In this case, the ultimate issue was whether defendant had any amount of a drug,

substance, or compound in his blood or urine resulting from the unlawful use of cocaine. The

State's expert testified benzoylecgonine is not a drug listed as a controlled substance. Moreover,

the State did not argue or present evidence demonstrating benzoylecgonine is a compound. We


                                               - 18 -
note the jury's question asked only whether benzoylecgonine qualified as a substance. Both the

State and defendant agreed the trial court should answer the question by telling the jury to rely

on the evidence it heard during the trial. The trial court's unprompted response, "yes, cocaine

metabolite qualifies as a drug, substance, or intoxicating compound," was incorrect, in conflict

with the evidence presented, and served to direct a verdict in the State's favor.

¶ 49          At best, the response could have confused the jury, whose question only asked

whether benzoylecgonine was a "substance." Defendant's suggestion on appeal the jury had

already decided benzoylecgonine was not a drug or compound is not unreasonable based on its

question. At worst, the court's response removed from the jury the question of whether

defendant had a drug, substance, or compound in his system resulting from the consumption of

cocaine. See Banks, 281 Ill. App. 3d at 422, 667 N.E.2d at 121. Moreover, doing so resolved

the ultimate issue for the jury. The better approach would have been for the trial court to accept

the parties' recommended response and instruct the jury to rely on the evidence it heard during

the trial. Accordingly, we have no choice but to reverse defendant's conviction and remand for a

new trial.

¶ 50                   D. Sufficiency of the Evidence and Double Jeopardy

¶ 51          Because we are remanding this cause for a new trial, we must consider for double

jeopardy purposes whether the evidence was sufficient to sustain the defendant's conviction.

People v. Jiles, 364 Ill. App. 3d 320, 330-31, 845 N.E.2d 944, 953 (2006). Double jeopardy

does not allow for a second trial for the purpose of affording the State a second opportunity to

supply evidence absent in the first proceeding. Jiles, 364 Ill. App. 3d at 331, 845 N.E.2d at 953.

However, it does not preclude retrial if the evidence was sufficient to convict but the conviction


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is overturned because of an error in the trial process. Jiles, 364 Ill. App. 3d at 331, 845 N.E.2d at

953-54 (citing People v. Olivera, 164 Ill. 2d 382, 393, 647 N.E.2d 926, 931 (1995)).

¶ 52          Although not captioning his argument as such, defendant raises a sufficiency-of-

the-evidence challenge on appeal, arguing benzoylecgonine does not constitute a controlled

substance. In reviewing the sufficiency of the evidence to sustain a conviction, the relevant

inquiry is " 'whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.' " (Emphasis in original.) People v. Thomas, 178 Ill. 2d 215, 232, 687 N.E.2d

892, 899 (1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

¶ 53          Section 11-501(a)(6) of the Vehicle Code prohibits the operation of a vehicle with

"any amount of a drug, substance, or compound in the person's breath, blood, or urine resulting

from the unlawful use or consumption of *** a controlled substance listed in the Illinois

Controlled Substances Act, [or] an intoxicating compound listed in the Use of Intoxicating

Compounds Act." (Emphases added.) 625 ILCS 5/11-501(a)(6) (West 2010). "Because

possession of a controlled substance is unlawful per se (see 720 ILCS 570/402 (West 2008)), the

State must establish simply that the defendant used or consumed a controlled substance before

driving." People v. Martin, 2011 IL 109102, ¶ 16, 955 N.E.2d 1058. We note impairment is

irrelevant under section 11-501(a)(6). See Martin, 2011 IL 109102, ¶ 26, 955 N.E.2d 1058

(violation of section 11-501(a)(6) is a strict-liability violation rather than a violation requiring

proof of impairment). To satisfy its burden in this case, the State was required to prove beyond a

reasonable doubt the presence of any amount of a drug, substance, or compound in defendant's

blood or urine resulting from his unlawful use of cocaine.


                                                 - 20 -
¶ 54          It is undisputed the cocaine metabolite benzoylecgonine was found in defendant's

blood and urine. The State's expert testified benzoylecgonine only comes from cocaine. Thus,

the critical question is whether the State proved benzoylecgonine qualifies as either a drug,

substance, or intoxicating compound (see IPI Criminal No. 23.64A). As stated, the State's

expert testified benzoylecgonine is not a drug listed as a controlled substance. Likewise, no

evidence was presented to show benzoylecgonine was an intoxicating compound or a compound

resulting from consumption of an intoxicating compound. Indeed, section 1 of the Use of

Intoxicating Compounds Act (720 ILCS 690/1 (West 2012)) specifically lists the qualifying

intoxicating compounds to the exclusion of benzoylecgonine.

¶ 55          The only remaining issue, based on the evidence presented, is whether

benzoylecgonine could be considered a substance. While used throughout the statute, the term

"substance" is not defined. In the absence of a definition, an unambiguous term must be given

its plain and ordinary meaning. "Substance" is defined as, inter alia, "matter of particular or

definite chemical constitution." Merriam-Webster Online Dictionary, available at

http://www.merriam-webster.com/dictionary/substance (last visited Sept. 15, 2014).

Benzoylecgonine can be seen to fit within this definition. The State's expert testified,

"Benzoylecgonine is a cocaine metabolite. That means that at some point cocaine was ingested.

It breaks down into metabolites. One of them is Benzoylecgonine, which we test for. It is

similar to digestion. When you ingest food, it has to break down into other substances. Drugs

are the same way." (Emphasis added). Looking at the evidence in a light most favorable to the

prosecution, as we must, we find a rational jury could have found the benzoylecgonine in

defendant's system was a substance resulting from defendant's use of cocaine before driving. See


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Martin, 2011 IL 109102, ¶ 18, 955 N.E.2d 1058. Accordingly, double jeopardy does not

preclude retrial of defendant.

¶ 56                                 III. CONCLUSION

¶ 57           For the reasons stated, we reverse defendant's conviction and remand for a new

trial. Because we conclude the evidence was sufficient to convict defendant, no double jeopardy

impediment to retrial is present. See People v. Ward, 2011 IL 108690, ¶ 50, 952 N.E.2d 601.

¶ 58           Reversed and remanded.




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