§ 2.15 Evidence

• Library: Illinois DUI and Traffic-Related Decisions (2016 Ed.)

§ 2.15 Evidence

(NOTE: The reader should keep in mind that the United States Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), ruled that certified lab tests regarding drug analysis are subject to the right of confrontation to verify their accuracy. This will have implications regarding the use of written blood tests in DUI and Reckless Homicide prosecutions.)

§ 2.15-1 Blood Test

§ 2.15-1(a) Excluded Properly

People v. Walley, 215 Ill. App. 3d 971, 575 N.E.2d 596, 159 Ill. Dec. 98 (2d Dist. 1991). In a DUI case, the prosecution had a subpoena duces tecum issued to a hospital directing the production of any and all written blood test results conducted in further emergency room treatment of defendant. The trial court found the procedure employed by the State was improper because it provided for extrajudicial delivery and inspection of materials were sought, and the subpoena was issued for a date when no court date was scheduled. The State was also warned their procedure was improper. The trial court's exclusion of the evidence was held to not be an abuse of discretion.

§ 2.15-1(b) Introduced Improperly

People v. Emrich, 113 Ill. 2d 343, 498 N.E.2d 1140, 101 Ill. Dec. 632 (1986). Defendant was charged with DUI and reckless homicide. Because it was shown that an anticoagulant preservative was not used for the blood sample, the results were inadmissible on the charge of driving under influence of alcohol. When the state wants to introduce the blood test results in a DUI prosecution, compliance with the standards must be shown.

People v. Saulsburry, 178 Ill. App. 3d 857, 533 N.E.2d 1154, 128 Ill. Dec. 66 (2d Dist. 1989). Blood test results were improperly admitted into evidence because there was no showing of compliance with Department of Public Health standards. No second vial was obtained, hospital lab wasn't certified, and no anti-coagulant/preservative was used. Admission was considered harmless error because of the substantial testimony by others as to defendant's intoxication.

§ 2.15-1(b)(1) Result Through Extrapolation Improperly Entered

People v. Floyd, 2014 IL App (2d) 120507, 11 N.E.3d 335, 381 Ill. Dec. 704. Following defendant's arrest for driving under the influence, defendant was taken to the police station where she agreed to perform field sobriety tests. Officers administered one breath test to the defendant at 10:30 P.M., over an hour after her arrest, which registered her BAC at 0.069. At trial, the People produced a forensic toxicologist as an expert witness. The expert testified that, after conducting a retrograde extrapolation calculation, he determined that the defendant's BAC was between 0.082 and 0.095 at the time of her arrest at 9:10 P.M. The expert explained that retrograde extrapolation calculation is possible because a person eliminates alcohol at a fixed rate of between 0.01 and 0.02 grams per deciliter of blood per hour. The expert further explained that two conditions must be met in order for the calculation to be valid: 1) the person metabolizes alcohol at the normal rate, and 2) the person is in the post-absorption phase- that is, the person is no longer absorbing alcohol and is in the elimination phase- when the breath test is administered. The expert stated that a person's absorption rate will vary depending on a variety of factors including the type of food the person has eaten, the type of alcohol consumed, and the length of time during which the drinking occurred. On cross-examination, the expert admitted that he did know not any of these factors about the defendant, but rather, just assumed that she was in the elimination phase at 9:10 P.M. The jury found defendant guilty of aggravated DUI. On appeal, the defendant argued that the court erred in admitting the expert's testimony regarding the retrograde extrapolation calculation because he had not had the information necessary to perform the calculation with any degree of certainty, and that the prejudicial effect of his testimony outweighed its probative value.

The appellate court reversed the trial court's judgment and remanded the case for a new trial. The court noted that although the expert's calculation would be relevant to determine whether the defendant's BAC was above the legal limit, the inherent unreliability was obvious where the expert acknowledged that he was unaware of many of the factors that were necessary to determine whether the defendant had been in the elimination phase and where the police conducted only one BAC test. The court further found that the potential for prejudice was high because the extrapolation evidence invited the jury to convict the defendant based on a supposedly high BAC. Based on the specific circumstances of this case, the court found that the prejudicial effect of the retrograde extrapolation calculation outweighed its probative value and that the trial court abused its discretion by admitting it.

§ 2.15-1(c) Introduced Properly

People v. Ruppel, 303 Ill. App. 3d 885, 708 N.E.2d 824, 237 Ill. Dec. 21 (4th Dist. 1999). Defendant was convicted of driving with blood alcohol concentration over 0.10. Defendant claimed the blood test sample was improperly drawn pursuant to 11-501.6(b) of the Code. This section allows for the taking of a blood sample, upon an officer's request, of individuals being medically treated following an accident.

The trial court ruled the blood test was authorized under 11-501.2(c)(2). This section requires a driver to submit to a blood test upon the request of an officer if the officer has probable cause to believe a vehicle driven by a defendant while under the influence of alcohol has caused personal injury to another. The appellate court affirmed the defendant's conviction finding the trial court correctly determined the blood sample was authorized under 11-501.2(c)(2) of the Code.

People v. Hendersons, 336 Ill. App. 3d 915, 789 N.E.2d 774, 272 Ill. Dec. 13 (3d Dist. 2003). A jury found defendant guilty of DUI and he was sentenced to 30 days of incarceration in the county jail. Defendant claimed the trial court erred when it allowed into evidence a lab report concerning defendant's blood alcohol concentration when the State had not established a chain of custody for the blood sample on which the lab report was based.

The appellate court affirmed. In Illinois a blood sample tested to determine a defendant's blood alcohol concentration may be taken from a defendant as a result of a request from a law enforcement officer, or as a result of a doctor's order during the regular course of providing emergency medical treatment. Under section 11-501.4 of the vehicle code, the results conducted on blood are admissible as an exception to the hearsay rule when (1) the tests were ordered in the regular course of providing emergency medical treatment and not at the request of a law enforcement officer; (2) the test were performed by the lab routinely used by the hospital; and (3) the results of the test are admissible regardless of the time the records were prepared.

The State produced a witness that testified the lab report was made as a record of the collection and testing of the defendant's blood by the hospital, the report was made during the regular course of the hospital's business, and it was the hospital's regular course of business to make such lab reports. The lab report was deemed admissible as a business record. The court rejected defendant's claim that to be admissible the State had to establish a chain of custody for the defendant's blood sample. The court noted that under sec. 11-501.2 when an officer requests that a blood sample be obtained and the sample is taken into the officer's custody, then a chain of custody must be established before the results would be admitted into evidence.

People v. Lendabarker, 215 Ill. App. 3d 540, 575 N.E.2d 568, 159 Ill. Dec. 70 (2d Dist. 1991). The trial court allowed a written blood test result into evidence based upon ch. 95 1/2, sec. 11-501.4 of the vehicle code. Defendant on appeal claimed this statute conflicts with Supreme Court Rule 236, which prohibits medical records from being admitted under the business records exception. The appellate court held the admission of the blood test result was permissible. The court found no conflict with the Supreme Court Rule 236 because Rule 236 only applies to civil proceedings and sec. 11-501.4 applies to criminal proceedings.

People v. Kotecki, 279 Ill. App. 3d 1006, 666 N.E.2d 37, 216 Ill. Dec. 869 (2d Dist. 1996). Defendant was charged with DUI following an accident on May 30, 1994. At the time of the accident, in order for a blood test result to be admitted under 11.501.4, a physician had to order the blood test in the emergency room and the result would have had to have been relied upon by the physician. At the time of trial, a blood test result was admissible if the test was ordered in the ordinary course of providing emergency medical treatment. Defendant's claim that the amended statute was an ex post facto law was rejected. The result was properly admitted into evidence. Additionally the trial court properly interpreted the test results. The ETOH or blood alcohol level was 153. Under the heading "UNITS" the print out said MG/DL. The trial court construed this data to mean .153 milligrams per deciliter. This was a reasonable inference.

People v. Cortez, 361 Ill. App. 3d 456, 837 N.E.2d 449, 297 Ill. Dec. 366 (2d Dist. 2006). At trial the defendant claimed the trial court erred in allowing the blood test results obtained while he was treated at a hospital, pursuant to 625 ILCS 5/11-501.4. Defendant claimed the statute violated his constitutional right to confrontation in that it precluded him from cross-examining the doctor responsible for his blood test. The appellate court rejected defendant's claim finding the section in question was sufficiently similar to the business records exception to the hearsay rule, a firmly rooted exception to the hearsay...