                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Hall, 2011 IL App (2d) 100262




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    DAVID M. HALL, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-10-0262


Filed                      December 9, 2011


Held                       In a DUI prosecution, the trial court’s order barring the use of blood
(Note: This syllabus       alcohol test results on the ground that defendant’s blood had not been
constitutes no part of     collected and stored in compliance with the applicable regulations,
the opinion of the court   including the requirement that the tubes used contain anticoagulant and
but has been prepared      preservative, was affirmed, but the dismissal of one count of DUI on
by the Reporter of         speedy trial and compulsory joinder grounds was reversed where there
Decisions for the          was no indication defendant ever made an affirmative request for a
convenience of the         speedy trial.
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, Nos. 08-CM-2497, 08-
Review                     TR-56871, 08-TR-56872, 08-DT-1274, 08-TR-449354; the Hon. F. Keith
                           Brown, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                 Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal                     Solicitor General, Michael M. Glick, and Retha R. Stotts, Assistant
                           Attorneys General, of counsel), for the People.

                           Douglas E. Zeit and Brian E. King, both of Law Offices of Douglas E.
                           Zeit, of Waukegan, for appellee.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Justices Bowman and Birkett concurred in the judgment and opinion.




                                             OPINION

¶1          The State appeals from the trial court’s orders barring the use of the blood alcohol test
        results of defendant, David M. Hall, and dismissing one count of driving under the influence
        (DUI) (625 ILCS 5/11-501(a)(1) (West 2006)). We affirm in part, reverse in part, and
        remand.

¶2                                        I. BACKGROUND
¶3          Defendant was arrested on April 26, 2008, and charged with DUI (influence of alcohol)
        (625 ILCS 5/11-501(a)(2) (West 2006)), improper turn (625 ILCS 5/11-801(a)(1) (West
        2006)), improper lane usage (625 ILCS 5/11-709(a) (West 2006)), and resisting a peace
        officer (720 ILCS 5/31-1 (West 2006)). During the course of the arrest, the arresting officer,
        Officer Goldsmith of the Vernon Hills police department, sprayed defendant with pepper
        spray and pulled defendant from his vehicle. A rescue squad was called to the scene, and
        emergency medical technicians tended to defendant for about 25 minutes. Defendant was
        then taken to Condell Medical Center for treatment of his left eye, which had taken the brunt
        of the pepper spray. While at the hospital, defendant was hooked up to an electrocardiogram,
        which detected a rapid heart rate. Before defendant was moved from the emergency room
        and admitted to the hospital, Goldsmith told him to come to the police station to pick up his
        citations after he was released. Goldsmith then left, and defendant was moved to a hospital
        room, where, eventually, several vials of his blood were drawn to be tested for heart-related
        issues. The following afternoon, defendant was released from the hospital and he picked up
        his citations at the police station.
¶4          The Illinois Attorney General took over the prosecution of this case, as the Lake County
        State’s Attorney determined that his office had a conflict of interest.1 An assistant Attorney


               1
                Defendant is a Lake County circuit court judge.

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     General, with the help of an assistant State’s Attorney, learned that several vials of
     defendant’s blood still remained at Condell. On May 14, 2008, the trial court ordered Condell
     to release the blood samples to the Vernon Hills police department for transportation to the
     Illinois State Police (ISP) crime lab for testing.2 An ISP technician tested the blood for
     alcohol concentration on May 15 and reported a blood alcohol concentration (BAC) of 0.107.
     This information was tendered to defendant on June 11, but the test results remained sealed
     under court order.
¶5        In April 2009, defendant filed a series of three motions to bar the use of the BAC test
     results and defendant’s medical records that the State had obtained. After hearing argument
     on September 28, 2009, the trial court denied defendant’s motion to bar the use of the
     medical records. The court also denied the motion to bar the use of the BAC test results, in
     order to grant the State “an opportunity to bring in their witnesses and show a complete
     factual foundation.” Defendant would be given the opportunity to renew his motion at the
     end of the State’s offer of proof.
¶6        On that same day, the State filed an information charging defendant with DUI (BAC of
     0.08 or more) (625 ILCS 5/11-501(a)(1) (West 2006)). Defendant then filed a motion to
     dismiss that charge on compulsory joinder and speedy trial grounds, pursuant to section 103-
     5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5 (West 2006)).
¶7        The trial court held an evidentiary hearing on defendant’s motion to bar the use of the
     BAC test results on March 1, 2010. The State called a series of witnesses from Condell
     Medical Center, the Vernon Hills police department, and the ISP crime lab to testify
     regarding the drawing, handling, storage, transportation, and testing of defendant’s blood.
     Defendant called one witness, a pharmacist who testified about the possibility of “false
     positive” results in blood alcohol tests, especially where no preservative was added to the
     blood sample. Following the hearing, the trial court granted defendant’s motion to bar the
     use of BAC evidence, finding that the blood had not been collected and stored in compliance
     with applicable regulations contained in the Illinois Administrative Code. 20 Ill. Adm. Code
     1286.320 (2011). The court listed all four original case numbers in the caption of its written
     order and entered separate minute orders in the resisting arrest and traffic cases, stating that
     “blood results *** shall not be admissible in this matter.” After denying the State’s
     subsequent motion for reconsideration, the court granted defendant’s motion to dismiss the
     charge of DUI (BAC of 0.08 or more) on compulsory joinder and speedy trial grounds. The
     State filed a certificate of impairment, and this appeal followed.




             2
              Neither the State nor defendant raised the issue of the timeliness of the procurement of the
     blood samples for testing. The apparent delay was due in part to the fact that Goldsmith neither
     requested that a sample be taken nor was he present when the sample that was ultimately tested was
     taken. The State first sought a court order to preserve the blood samples and to release them for
     testing on May 2. However, all Lake County judges recused themselves from the case, and the
     supreme court assigned Judge Brown to the case on May 5.

                                                 -3-
¶8                                         II. ANALYSIS
¶9         We first note that we have taken with the case defendant’s motion to strike portions of
       the State’s reply brief. Defendant alleges that the State makes several arguments that are
       waived, frivolous, not supported by the record, and/or not supported by legal authority. We
       deny the motion to strike, but we will disregard any arguments contained in that brief that
       are inappropriately made.
¶ 10       The State first contends that the trial court erred in excluding the BAC evidence. In
       general, this court will review a trial court’s ruling on a motion in limine for an abuse of
       discretion. People v. Morris, 394 Ill App. 3d 678, 680 (2009). However, where the issue on
       appeal is a question of law, we will grant a de novo review. Morris, 394 Ill. App. 3d at 680.
       The interpretation of an administrative regulation or rule is a question of law to which the
       principles of statutory interpretation apply. Morris, 394 Ill. App. 3d at 680.
¶ 11       Section 11-501.2 of the Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2006))
       governs the admissibility of BAC test results in DUI prosecutions. Morris, 394 Ill. App. 3d
       at 681.3 To be considered valid under the provisions of that section, a blood analysis “shall
       have been performed according to standards promulgated by the Department of State Police.”
       625 ILCS 5/11-501.2(a)(1) (West 2006). Pursuant to the relevant portions of section
       1286.320 of title 20 of the Administrative Code:
           “The following procedures shall be used to obtain a blood sample from a subject to
           determine the alcohol concentration, or presence of other drugs or intoxicating
           compounds:
                   (a) The blood sample shall be collected in the presence of the arresting officer,
               *** or an agency employee who can authenticate the sample.
                                                ***
                   (d) Officers shall use DUI kits provided by the Department, if possible. If kits
                   are not available, officers may submit two standard grey top vacuum tubes.
               (Pursuant to generally accepted industry standards, grey top vacuum tubes contain an
               anticoagulant and preservative.)” 20 Ill. Adm. Code 1286.320 (2011).
       Failure to comply with section 11-501.2 and the regulations promulgated thereunder renders
       the results of chemical tests inadmissible in a DUI prosecution. Morris, 394 Ill. App. 3d at
       681.
¶ 12       The testimony presented at the evidentiary hearing revealed no evidence that either the
       arresting officer or any other agency employee was present when defendant’s blood was
       drawn. Juliana Gonzales, the Condell nurse who drew defendant’s blood pursuant to the
       order of Dr. Murray Keene, testified that she drew the blood into several containers, one of
       which had a purple top. Joan DuVall, the laboratory manager at Condell, testified that,


               3
                See also Ill. Evid. R. 101 (eff. Jan. 1, 2011) (“A statutory rule of evidence is effective unless
       in conflict with a rule or a decision of the Illinois Supreme Court.”). To our knowledge, there is no
       supreme court rule or decision that is in conflict with the declaration on admissibility contained in
       section 11-501.2.

                                                     -4-
       according to standard industry-wide color codes, a purple top on a sample tube signifies that
       the tube contains an anticoagulant. Jennifer Poltorak, a toxicologist at the ISP crime lab with
       bachelor’s degrees in chemistry and forensic science, testified that she received three tubes
       of defendant’s blood for testing, including one tube with a purple stopper. She tested two
       samples from the purple-topped tube, using a head space gas chromatograph; the average
       result revealed “an ethanol level of 0.107 grams per deciliter.” Poltorak testified that the
       ethanol reading would not have been affected by the presence of methanol in the blood
       sample. She also testified that it was not unusual to perform a BAC test on a blood sample
       that was 18 or 19 days old. Defendant’s only witness, James O’Donnell, was a pharmacist
       and professor with bachelor’s and doctorate degrees in pharmacy and a master’s degree in
       nutrition. Testifying as an expert in pharmacology, O’Donnell opined that the tubes of
       defendant’s blood were tainted because of a lack of determination of proper storage and the
       “significant probability” that microbial growth in blood untreated with preservative would
       lead to the synthesis of alcohol in the samples and would cause a “false positive” reading.
       Preservatives do not completely kill such bacteria but limit their growth.
¶ 13       Section 11-501.2 was intended to ensure the reliability of evidence introduced in DUI
       prosecutions. People v. Emrich, 113 Ill. 2d 343, 349 (1986). A “valid” blood analysis under
       this section “shall have been performed according to standards promulgated by the
       Department of State Police.” 625 ILCS 5/11-501.2(a)(1) (West 2006). As noted, the failure
       to comply with section 11-501.2 and the regulations promulgated thereunder renders the
       results of chemical tests inadmissible in a DUI prosecution. Emrich, 113 Ill. 2d at 351. The
       State admits that it did not fully comply with subsections (a) and (d) of section 1286.320.
       However, it argues that strict compliance with the provisions of the Administrative Code is
       not required. Relying on this court’s opinion in People v. Ebert, 401 Ill. App. 3d 958 (2010),
       the State argues that the BAC test results should be admitted as long as the testing procedures
       substantially complied with the regulations.
¶ 14       We first address the State’s noncompliance with subsection (d), which commands that
       the tubes used to contain the blood for testing “contain an anticoagulant and preservative.”
       20 Ill. Adm. Code 1286.320(d). Here, while there was evidence that the purple-topped tube
       from which the blood was taken for the BAC test contained an anticoagulant, there is no
       evidence that the tube contained the required preservative. There was 50% compliance with
       the requirement that the tube contain both an anticoagulant and preservative; however, there
       was zero compliance with the requirement that the tube contain a preservative. This is a
       failure to comply, not “substantial” compliance.
¶ 15       The State’s reliance on Ebert is overblown in this instance. In Ebert, which involved the
       issue of whether a police officer failed to comply with regulations requiring him to
       continuously observe the defendant for at least 20 minutes before administering a breath test,
       this court stated:
           “The standards exist, not for their own sakes, but in service of the truth-seeking function,
           which they promote by ensuring that blood, breath, and urine tests are conducted in a
           manner that produces reliable results. If the standards are to serve this purpose, the rule
           of substantial compliance must be one that neither blithely ignores the standards nor
           enforces them in a purely rote manner. We are therefore reluctant to relax the standards

                                                 -5-
            when doing so would require inquiry into the scientific basis for a particular standard.
            However, when it is clear that a particular deviation from the mandated procedures does
            not pertain to a matter of science, a court is perfectly competent to determine whether,
            in a given case, the deviation compromised the integrity of the testing process.”
            (Emphasis added.) Ebert, 401 Ill. App. 3d at 965.
       This court found that the purpose of the observation period at issue was to “document that
       the motorist does nothing that might impair the accuracy of the breath test,” such as vomit,
       belch, regurgitate, or place a foreign object in his mouth. Ebert, 401 Ill. App. 3d at 965.
       However, even though the officer did not observe the defendant for the required 20 minutes,
       the defendant himself testified that he did not perform any of those acts. “Under these
       circumstances,” failure to strictly comply with the regulation “was de minimis.” Ebert, 401
       Ill. App. 3d at 965.
¶ 16        Here, however, the issue of whether the failure to include preservative in the tube of
       blood used for defendant’s BAC test requires an inquiry into the scientific basis for the
       requirement. The blood was not tested for almost three weeks after it was drawn; neither the
       trial court nor this court is “perfectly competent,” in the words of Ebert, to determine
       whether the failure to include the preservative compromised the integrity of the testing
       process. See Ebert, 401 Ill. App. 3d at 965. The legislature has assigned to the Department
       of State Police the responsibility to promulgate standards for chemical analyses of blood,
       urine, and breath and to “prescribe regulations as necessary to implement” section 11-501.2.
       625 ILCS 5/11-501.2(a)(1) (West 2006). We will not second-guess the reasoning behind
       these regulations by considering conflicting testimony regarding scientific matters that are
       within the purview of the Department of State Police. We cannot conclude that failure to
       strictly comply with subsection (d) is de minimis. Under the facts of this case, Ebert does not
       support the State’s argument that substantial compliance with the regulation would be
       sufficient. Instead, the Ebert analysis reinforces our conclusion that the trial court did not err
       in excluding the BAC evidence because the State did not comply with subsection (d).
¶ 17        Because of our disposition of this aspect, we need not address the issue of compliance
       with the requirement of subsection (a) that the officer or another agency representative be
       present when the blood is drawn.
¶ 18        The State next contends that the trial court erred in extending its ruling excluding the
       BAC results to the non-DUI counts. The standards promulgated pursuant to section 11-501.2
       are applicable only to the offense of DUI; in a trial for any other offense, BAC test results
       are to be received in evidence under the usual standards governing the admission of
       evidence. People v. Murphy, 108 Ill. 2d 228, 236 (1985); see also Emrich, 113 Ill. 2d at 351
       (both involving the offense of reckless homicide). This is true even if the DUI offense is tried
       with the other offenses. See Emrich, 113 Ill. 2d at 351.
¶ 19        We note that, in its motion to reconsider, the State moved the court to clarify its order
       “and permit evidence of the blood alcohol level on the remaining DUI count alleging
       impairment.” Although the State cited to Murphy and Emrich in its motion and arguments,
       it did not address the exclusion of the BAC results vis-á-vis the non-DUI counts. A party
       cannot make an argument for the first time on appeal. People v. Vasquez, 388 Ill. App. 3d


                                                  -6-
       532, 543 (2009). An argument not raised in the trial court is forfeited on appeal, and we need
       not review it. Vasquez, 388 Ill. App. 3d at 543. The doctrine of forfeiture applies to the State
       as well as to the defendant. People v. McKown, 236 Ill. 2d 278, 308 (2010) (citing People
       v. Williams, 193 Ill. 2d 306, 347 (2000)). We find this argument forfeited and will not
       consider it.
¶ 20       The State next contends that the trial court erred in dismissing the charge of DUI (BAC
       of 0.08 or more) on speedy trial and compulsory joinder grounds. We agree.
                “Compulsory joinder requires the State to bring multiple charges in a single
           prosecution. The charges are tried together unless the circuit court determines that a
           separate trial is required in the interest of justice. [Citation.] Once a speedy-trial demand
           is filed, the multiple charges are subject to the same speedy-trial period. If the charges are
           required to be brought in a single prosecution, the speedy-trial period begins to run when
           the speedy-trial demand is filed, even if the State brings some of the charges at a later
           date.” (Emphases added.) People v. Quigley, 183 Ill. 2d 1, 13 (1998).
       Even if the charges were subject to compulsory joinder, defendant did not file a speedy trial
       demand.
¶ 21       Section 103-5(b) requires that an individual on bail or recognizance, such as defendant,
       be tried within 160 days from the date that he demands trial. 725 ILCS 5/103-5(b) (West
       2006); People v. Murray, 379 Ill. App. 3d 153, 160 (2008). While there are no magic words
       required to constitute a speedy trial demand, there must be some affirmative statement
       requesting a speedy trial. Murray, 379 Ill. App. 3d at 160. Here, there is no indication that
       defendant ever made any such affirmative request for a speedy trial. As no demand was
       made, no speedy trial period, for either the initial charges or the later-brought BAC charge,
       could run. Therefore, the trial court erred in granting defendant’s motion to dismiss.

¶ 22                                   III. CONCLUSION
¶ 23      For these reasons, the judgment of the circuit court of Lake County barring the use of the
       BAC test results is affirmed; the judgment dismissing the charge of DUI (BAC of 0.08 or
       more) is reversed; and the cause is remanded.

¶ 24       Affirmed in part and reversed in part; cause remanded.




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