An inference is a factual conclusion that can rationally be drawn by considering other facts. Thus, an inference is merely a deduction that the fact finder may draw in its discretion, but is not required to draw as a matter of law." Where evidence is presented and such evidence is capable of producing conflicting inferences, it is best left to the trier of fact for proper resolution. The Administrative Code provides a blood serum or blood plasma alcohol concentration should be "divided by 1.18 to obtain a whole blood equivalent." 20 Ill. Adm. Code 1286.40 (2012). Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
This is what the Illinois Appellate Court for the 3rd District held recently when it reversed the Will County Circuit Court in a DUI case involving injury. The case points up many issues, not the least of which is the importance for DUI defense lawyers not to stipulate to certain facts.
After a bench trial, the
court found defendant, Timothy Harmon, guilty of two counts of driving under the
influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)) and
improper lane usage (625 ILCS 5/11-709 (West 2010)), and imposed a sentence of
24 months of conditional discharge. On appeal, defendant argues that the trial
court erred by concluding that "221" on his hospital blood test results meant
0.221 grams of alcohol per 100 milliliters of blood. See 625 ILCS
5/11-501.2(a)(5) (West 2010) (stating that alcohol concentration is measured in
grams per 100 milliliters of blood). So finding, the Third District reversed the trial court's ruling.
The Law Offices of Brent M. Christensen, a Wheaton DUI defense firm that handles many cases originating in Naperville (which is located partly in Will County) is a strict adherent to the tactics used by the attorney in this case.
Here is the complete Appellate Court opinion:
2012 IL App (3d) 110297
Opinion filed July 19, 2012
APPELLATE COURT OF ILLINOIS
THE PEOPLE OF THE STATE OF
Appeal from the Circuit Court
of the 12th Judicial Circuit,
Will County, Illinois,
Appeal No. 3-11-0297
Circuit No. 10-DT-863
JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justices McDade and O'Brien concurred in the judgment and opinion.
¶ 1 After a bench trial, the court found defendant, Timothy Harmon, guilty of two counts of
driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)) and
improper lane usage (625 ILCS 5/11-709 (West 2010)), and imposed a sentence of 24 months of
conditional discharge. On appeal, defendant argues that the trial court erred by concluding that
"221" on his hospital blood test results meant 0.221 grams of alcohol per 100 milliliters of blood.
See 625 ILCS 5/11-501.2(a)(5) (West 2010) (stating that alcohol concentration is measured in
grams per 100 milliliters of blood). We reverse.
¶ 2 FACTS
¶ 3 On May 22, 2010, defendant was involved in a single-vehicle accident and was
transported to Adventist Bolingbrook Hospital (Adventist) for emergency medical treatment.
The State charged defendant with driving a motor vehicle while his blood alcohol level was
above 0.08 (625 ILCS 5/11-501(a)(1) (West 2010)), driving a motor vehicle while under the
influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2010)), improper lane usage (625 ILCS
5/11-709 (West 2010)), and driving too fast for conditions (625 ILCS 5/11-601(a) (West 2010)).
¶ 4 At trial, Rosemary Brockmeier testified that on the day of defendant's accident, she was
employed as a nurse at Adventist. She stated that defendant arrived at the hospital for emergency
treatment and his blood was tested in the ordinary course of emergency treatment. The following
exchange then occurred between the prosecutor and Brockmeier:
"Q. [Assistant State's Attorney]: What [was] the blood alcohol content indicated
of record of the defendant's blood?
A. Um, 221 on admission.
Q. And do you know whether that means whole blood or serum?
A. This is serum."
In addition, the court allowed the State to admit defendant's medical records into evidence which
indicated defendant's ethanol intoxication level was "221 on admission."
¶ 5 Following the conclusion of the State's evidence, defendant moved for a directed verdict
on the grounds the State had not produced any evidence converting his blood serum level to
whole blood. Defendant also argued Brockmeier did not explain what "221" meant on
defendant's admitting orders.
¶ 6 In response, the prosecutor asked to reopen proofs so the trial court could take judicial
notice of title 20, section 1286.40, of the Illinois Administrative Code, which divides the blood
serum number by 1.18 to obtain the whole blood equivalent without reference to any unit of
measurement. 20 Ill. Adm. Code 1286.40 (2012). The State also requested permission to recall
Brockmeier as a witness, "just so there [was] no confusion" with regard to defendant's blood
¶ 7 The court agreed to take judicial notice of the Administrative Code, but denied the State's
request to recall Brockmeier as a witness after the State rested. The trial court granted a directed
verdict in favor of defendant with regard to driving too fast for conditions, but denied defendant's
motion on the DUI counts and improper lane usage.
¶ 8 After closing arguments, the trial court took the matter under advisement, and rendered a
decision on February 3, 2011. In its oral order, the court stated "the real issue I have with this
case and why I took it under advisement is whether there is sufficient evidence for me to draw a
reasonable inference that the number 221 that is reflected in the ER record and that was testified
to by the nurse means point 221 grams per milliliter of blood." The trial court concluded that it
could draw the reasonable inference from the evidence that the number 221 meant 0.221 and,
after applying the conversion factor, found that defendant's blood alcohol level was 0.187. Based
on this finding, the court entered a conviction under section 11-501(a)(1) of the Illinois Vehicle
Code (Code). After finding that defendant's blood alcohol level was above 0.08, the court
applied the presumptions pursuant to section 11-501.2(b)(3) of the Code and also convicted
defendant of DUI of a violation of section 11-501(a)(2) of the Code. See 625 ILCS 5/11-
501.2(b)(3) (West 2010). Defendant appeals.
¶ 9 ANALYSIS
¶ 10 On appeal, defendant argues there was insufficient evidence for the trial court to infer that
"221 on admission" meant a blood serum level of 0.221 comparing grams of alcohol per 100
milliliters. The State contends the trial court drew a permissible inference based on the evidence
presented during trial.
¶ 11 When faced with a challenge to the sufficiency of the evidence, the reviewing court must
view the evidence in the light most favorable to the prosecution and determine whether any
rational trier of fact could have found the elements of the crime proven beyond a reasonable
doubt. People v. Collins, 106 Ill. 2d 237 (1985). The trier of fact is responsible for determining
witness credibility, the weight to be given to their testimony, and the reasonable inferences to be
drawn from the evidence. People v. Jimerson, 127 Ill. 2d 12 (1989).
¶ 12 The case law provides that "[a]n inference is a factual conclusion that can rationally be
drawn by considering other facts. Thus, an inference is merely a deduction that the fact finder
may draw in its discretion, but is not required to draw as a matter of law." People v. Funches,
212 Ill. 2d 334, 340 (2004). In addition, " '[w]here evidence is presented and such evidence is
capable of producing conflicting inferences, it is best left to the trier of fact for proper resolution.'
" (Emphasis added.) People v. Saxon, 374 Ill. App. 3d 409, 416 (2007) (quoting People v.
McDonald, 168 Ill. 2d 420, 447 (1995)).
¶ 13 In the event that the State wishes for the court to convert a blood serum alcohol level to a
whole blood alcohol level, the Administrative Code provides a blood serum or blood plasma
alcohol concentration should be "divided by 1.18 to obtain a whole blood equivalent." 20 Ill.
Adm. Code 1286.40 (2012). The Code also provides, for purposes of the Code, "[a]lcohol
concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol
per 210 liters of breath." 625 ILCS 5/11-501.2(a)(5) (West 2010).
¶ 14 While the nurse's testimony in this case established defendant blood serum level was "221
on admission," her testimony did not indicate the hospital's base unit of measurement for the
amount of "221." Without any testimony regarding the hospital's unit of measurement
underlying the expressed value of "221," the court presumed "221," as measured by the hospital,
required the insertion of a decimal point before the number "221" and "mean[t] point 221 grams
per milliliter of blood."
¶ 15 The trial court relied on the decision of People v. Kotecki, 279 Ill. App. 3d 1006 (1996).
However, in Kotecki, the hospital records at issue indicated a precise unit of measurement. In
that case, the hospital records included a notation that the number "'153'" was based on "'UNITS'"
identified as "'MG/DL.'" Id. at 1013. Thus, the trial court in Kotecki had evidence that the
measurement was "'MG/DL'" and then reasonably inferred "'MG/DL'" meant milligrams per
deciliter. The reviewing court allowed the court to insert a decimal point to convert the
expressed ratio to milliliters and held the trial judge did not "arbitrarily" insert a decimal point,
but instead "examined the document in evidence and made a reasonable inference from that
document." (Emphasis added.) Id.
¶ 16 Unlike the facts in Kotecki, the State, in this case, did not present any evidence
concerning the unit of measurement employed by the hospital when calculating defendant's level
of alcohol present in his blood serum. Here, Brockmeier did not inform the judge regarding the
unit of measurement for the blood serum level of "221" and the hospital record itself does not
identify the measurement unit the hospital employed. An inference is drawn by first considering
other facts and evidence presented at trial. See, e.g., Saxon, 374 Ill. App. 3d 409. Without this
evidence, the trial judge's inference regarding the unit of measurement employed by the hospital
was predicated on "guess, speculation, or conjecture." People v. Jones, 174 Ill. 2d 427, 430
(1996) (holding that, while it was not difficult to conclude that three untested packets contained
cocaine, such a determination had to be based on evidence and not speculation).
¶ 17 When the State's evidence is incomplete, the trier of fact may not fill in the gaps in the
evidence to support a conviction. Even examining all of the evidence in the light most favorable
to the prosecution, we conclude the State's evidence did not allow the court to infer that "221"
measured the ratio of grams of alcohol per 100 milliliters.
¶ 18 We agree the State did not present sufficient evidence concerning defendant's blood
alcohol level to support the court's finding that defendant was in violation of section 11-501(a)(1)
of the Code. In addition, because the trial court applied that statutory presumption to convict
defendant of a DUI under section 11-501(a)(2), this conviction must be vacated as well. People
v. Green, 294 Ill. App. 3d 139 (1997) (statutory presumption only applies if there is evidence
presented of whole blood alcohol concentration). Therefore, we reverse defendant's convictions
¶ 19 CONCLUSION
¶ 20 For the foregoing reasons, the judgment of the circuit court of Will County is reversed.
¶ 21 Reversed.