People v. Heineman ( 2023 )

2023 IL 127854IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127854)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RYAN J. HEINEMAN, Appellant.
Opinion filed January 20, 2023.
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Holder White, and Cunningham,
concurred in the judgment and opinion.
Justices Rochford and O’Brien took no part in the decision.
OPINION
¶1 Defendant, Ryan J. Heineman, was the driver in a single-vehicle accident that
resulted in the death of his passenger, Tanya McDonough. Following a jury trial in
the circuit court of McHenry County, defendant was convicted of two counts of
aggravated driving under the influence of alcohol (aggravated DUI) (625 ILCS
5/11-501(a)(1), (2), (d)(1)(F) (West 2016)). The circuit court merged the
aggravated DUI counts and sentenced defendant to six years in the Illinois
Department of Corrections.
¶2 At defendant’s trial, Marc Fisher—one of the officers who investigated
defendant’s case—testified that he was familiar with Title 20, section 1286.40, of
the Illinois Administrative Code (Administrative Code) (20 Ill. Adm. Code 1286.40
(2015)) and had received training on that section throughout the years. Fisher
explained that section 1286.40 provides a mathematical formula for converting
blood serum alcohol concentration into a whole blood equivalent. Fisher testified—
over objection—that he learned of defendant’s blood serum alcohol concentration
test results and could apply section 1286.40’s conversion formula to those results.
He explained that, to do this, “[y]ou would divide the blood serum level, which in
this case is .155, by 1.18 to get a [whole blood alcohol concentration of] [.]131,”
which Fisher confirmed exceeds the legal limit for DUI in Illinois.
¶3 On appeal, defendant maintained, inter alia, that the State failed to prove his
whole blood alcohol concentration was at or above 0.08 grams per 100 milliliters
of blood because it relied on Fisher’s lay testimony concerning the conversion
factor in section 1286.40 to convert the results of his blood serum alcohol
concentration test into its whole blood equivalent. 2021 IL App (2d) 190689, ¶ 1.
The appellate court concluded that the circuit court did not abuse its discretion by
allowing Fisher to testify about his training and experience with the conversion
factor and its application to convert defendant’s blood serum alcohol concentration
into a whole blood equivalent. Id. Accordingly, the appellate court affirmed
defendant’s conviction, but it found the circuit court abused its discretion in
denying defendant’s posttrial motion to substitute counsel and, thus, vacated
defendant’s sentence and remanded for new posttrial proceedings including, if
necessary, sentencing. Id. We now affirm in part and reverse in part the judgment
of the appellate court.
¶4 BACKGROUND
¶5 On August 11, 2016, defendant was charged, by indictment, with two counts of
aggravated DUI (625 ILCS 5/11-501(a)(1), (2), (d)(1)(F) (West 2016)). Count I
alleged that on or about June 26, 2016, defendant committed the offense of
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aggravated DUI by knowingly driving a motor vehicle while the alcohol
concentration in his blood was 0.08 or more, in violation of section 11-501(a)(1) of
the Illinois Vehicle Code (Vehicle Code) (id. § 11-501(a)(1)) and, while doing so,
was involved in a motor vehicle accident that proximately caused Tanya’s death, in
violation of section 11-501(d)(1)(F) of the Vehicle Code (id. § 11-501(d)(1)(F)).
Count II alleged that on or about June 26, 2016, defendant committed the offense
of aggravated DUI by knowingly driving a motor vehicle while under the influence
of alcohol, in violation of section 11-501(a)(2) of the Vehicle Code (id. § 11-
501(a)(2)) and, while doing so, was involved in a motor vehicle accident that
proximately caused Tanya’s death, in violation of section 11-501(d)(1)(F) of the
Vehicle Code (id. § 11-501(d)(1)(F)).
¶6 Jury Trial
¶7 The matter proceeded to a jury trial. We limit our discussion of the testimony
and evidence to that which is relevant to the issues on appeal. Testimony
established that defendant and Tanya were neighbors and longtime friends. On the
evening of June 25, 2016, through the early morning of June 26, 2016, defendant
and Tanya hosted a birthday party for Tanya at both of their homes. Guests in
attendance visited back and forth between the two homes.
¶8 Justin Moberg testified that Tanya was his aunt and he became acquainted with
defendant when he visited Tanya’s home on past occasions. Justin and his friend,
Zach, attended Tanya’s birthday party on the dates in question. More than 20 guests
attended, and all the adults were drinking alcohol. Justin testified that neither he
nor Zach drank at the party because they were both minors. At the party, Justin
observed defendant drinking “decent size[d] cups” of Jack Daniels mixed with
Coke. Justin testified that defendant was drinking all day and he observed defendant
“pour more than one drink of a very tall glass of *** Jack and Coke.”
¶9 Justin testified that at some point during the party, Tanya had an argument with
her fiancé, Thomas Rice. Tanya was agitated after the argument and left the party
on foot. Justin and Zach went after Tanya because she had been drinking. Justin
testified that they found her lying in a ditch along State Park Road and they helped
her to her feet. Subsequently, defendant arrived in his Jeep and drove into the ditch.
Justin testified that Tanya got into the Jeep and defendant pulled forward and ran
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over two “decent size[d] trees.” Justin told defendant that they should not be driving
because they had been drinking. Justin confirmed that defendant was driving and
Tanya was in the passenger seat. Justin testified that defendant drove back to the
party with Tanya in the Jeep, but he and Zach walked back “because we weren’t
getting in the vehicle because they had been drinking and we knew it wasn’t safe.”
¶ 10 Justin testified that, when he and Zach returned to the party, he saw defendant
and Tanya leave in the Jeep once again with defendant driving and Tanya in the
passenger seat. Justin did not recall representing in his statement to police that
defendant and Tanya had already left by the time he and Zach returned to the party.
Justin clarified that, if he did make that statement, “it was a mistake because I did
see them leave.”
¶ 11 Justin testified that, after defendant and Tanya left, efforts were made to call
them to determine their whereabouts, but they did not answer their phones initially.
Defendant eventually called back, indicating that there was an accident and he “was
pinned behind the wheel and he could hear somebody screaming, but he didn’t
know who it was.” Justin explained that defendant “had no remembrance of who
was in the car with him” and that Justin’s mother, Michelle, had to remind
defendant that it was Tanya. Justin testified that he and Michelle attempted,
unsuccessfully, to locate defendant and Tanya. While driving home the next
morning, Michelle and Justin discovered a roadblock, and officers confirmed that
defendant’s Jeep had been in an accident.
¶ 12 Michelle Moberg testified that she is Justin’s mother and Tanya’s aunt.
Michelle previously worked as an event coordinator and had 20 years of experience
as a bartender. Michelle testified she arrived at Tanya’s birthday party around 12:30
a.m. on June 26, 2016, and observed defendant drinking a large tumbler—“[a]bout
three times the size” of an average beer—containing “[a]bout a 50-50 mix” of Jack
Daniels and Coke. Michelle reported that defendant “drank the one when he made
me mine, and then he was pouring himself another one.” Michelle also saw
defendant consume two Jell-O shots, made of Jell-O, water, and vodka combined
to make alcoholic Jell-O.
¶ 13 Michelle—who observed drunk people at her job on a daily basis—opined that
defendant was drunk at the party. She explained that defendant is “pretty quiet” and
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“not very outspoken,” but, at the party, “[h]is eyes were glassy. He was very
outgoing. Very bouncy. Very alert. Just more talkative than he normally would be.”
¶ 14 Michelle confirmed that Tanya left the party on foot around 1 a.m. after arguing
with Thomas. Michelle began pursuing Tanya but gave up and returned to the party
because she was tired and sore from spending the previous day packing and
moving. Michelle confirmed that Justin and Zach went after Tanya, as neither of
them had consumed alcohol. Michelle testified that after Justin and Zach started
after Tanya, defendant said, “I’ll go.” Michelle observed defendant walk out the
door, but she did not see him get into his vehicle.
¶ 15 Michelle testified that she was in the house with Thomas when Justin and Zach
returned and reported that defendant and Tanya had left again. Evidence established
that Michelle called defendant on his cell phone at 2:45 a.m. but he did not answer.
Defendant returned Michelle’s phone call at 2:53 a.m. and told her “that they had
been in an accident. He was upside down in his car. He was trapped behind the
steering wheel in his seat belt and he heard a woman screaming, but there was
nobody in his car so he didn’t know who it was.” Michelle testified that she told
defendant that it was Tanya and, when defendant told Tanya who he was talking to,
“[s]he started screaming. *** She was screaming my name. She was screaming,
[‘]Sean.[’]” Michelle explained that the name “could have just been mine because
the way she normally talks to me. She normally calls me Shell” and “Shell and Sean
sound alike.”
¶ 16 Michelle testified that she asked defendant where they were but he did not
know. Accordingly, Michelle urged defendant to get out of the Jeep and walk to a
road so she could try to find them. Michelle testified that she and Thomas rode the
four-wheeler up and down the road for about an hour looking for them. She also
drove around the area with Justin and Zach, searching for defendant and Tanya.
During the phone call with defendant, Justin instructed defendant to activate the
locator on his phone so the police could ping the location. Michelle testified that
defendant “must have grabbed his phone,” and he told them, “The only thing I can
see on my phone is porn.” Michelle testified that it was between 3 and 4 a.m. at that
point and “[w]e couldn’t look anymore. We had gone everywhere we could. ***
We looked everywhere. We called the police.”
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¶ 17 Michelle testified that around 5 a.m., “I had to get Justin home, so I went to go
home.” En route to her home, Michelle approached Fox Lake Road and discovered
a roadblock. Officers confirmed the accident and reported that defendant was
transported to the hospital and Tanya had passed away. After giving statements at
the police department, Michelle and Justin returned to defendant’s house. Michelle
testified that defendant was “released from the hospital and had been taken to jail.”
Michelle testified that, “when [defendant] came back to the house with his mom
after she picked him up from jail,” he “gave me a hug and said he was sorry. He
didn’t mean to.”
¶ 18 Michelle was certain that defendant was the driver of the Jeep during the
accident because Tanya did not have a driver’s license. Michelle emphasized that
Tanya did not drive because “[s]he doesn’t know how. She is afraid to. She would
have never made it around the corner from the house.”
¶ 19 Lynnette Courtney testified that she and Tanya were friends for 10 or 15 years.
Lynnette attended Tanya’s birthday party and observed everyone drinking at the
party, including defendant and Tanya. Lynette confirmed that Tanya did not drive
because “[s]he was terrified of it and didn’t have a license.”
¶ 20 Thomas testified that Tanya was his fiancée, they had been in a relationship for
nine years, and they had an eight-year-old child together. Thomas confirmed that
Tanya did not drive and did not have a driver’s license because “[s]he had bad
anxiety when—even just the thought of driving.” Thomas testified that he and
Tanya resided together, defendant lived nearby, and Tanya’s birthday party was
“back and forth between our house and [defendant’s] house.” Thomas reported that
he, Tanya, and defendant were drinking alcohol at the party and that Tanya and
defendant were both intoxicated.
¶ 21 Thomas witnessed Tanya and defendant leave the party and saw “[defendant’s]
Jeep drive past the house” around midnight or 1 a.m. Thomas attempted to call
Tanya, but she did not answer. Thomas testified that defendant answered his phone
around 2 a.m. and he was “joking around like nothing was happening. And I was
thinking like, okay, he’s drunk, so he’s not himself.” Thomas testified that he
attempted to obtain the location of defendant’s phone, “[b]ut he was joking around
saying, [‘]Oh, I can look at porn on my phone.[’] ” Thomas testified that defendant
“said something about being in a ditch, and I tried to get him to say where they’re
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at, and he still kept on joking around.” Thomas ended the phone call at that point
and called 911.
¶ 22 Theresa Valez testified that she and Tanya were best friends for nearly 30 years.
Theresa attended Tanya’s birthday party and confirmed that everyone at the party
was drinking. Theresa testified that she knew defendant for a few years prior to the
party and “it was a couple times a week we hung out.” Theresa saw defendant on
occasions before the party when she believed he was under the influence of alcohol
and on other occasions when he was not. Theresa testified that, when she spoke to
defendant at the party, his speech was not slurred and he was acting normal. She
emphasized, however, that everyone at the party—including defendant—was under
the influence of alcohol. Theresa confirmed that Tanya did not have a driver’s
license and Theresa drove when she and Tanya were together.
¶ 23 Steve Holtz testified that he is employed as a lieutenant firefighter paramedic
for Libertyville Fire Department. At around 6 a.m. on June 26, 2016, Holtz was
driving to work on Route 12 when he observed a male—later learned to be
defendant—standing on “the side of the road ditch area.” Holtz reduced his speed
to determine if there was a vehicle accident but, seeing none, proceeded down
Route 12. Holtz testified that “a little bit up the road” he observed a body lying in
the ditch alongside the road.
¶ 24 Holtz testified that he called 911 and encountered defendant, who “was
confused” and responded “I don’t know” to Holtz’s questions. Holtz observed a
vehicle “almost directly behind us up in a tree.” When he asked defendant where
they had been, defendant replied, “A party.” Holtz testified that defendant said “that
he did not know why they were out there. That they shouldn’t have left—didn’t
have a reason for leaving.” Holtz testified that, by the time officers arrived,
defendant had been walking and talking and “appeared to be okay at that point.”
¶ 25 Holtz testified on cross-examination that he did not observe any signs of alcohol
or any problems with defendant’s speech but noticed “a little confusion. When I
asked him questions, he said he didn’t know.” Holtz did not know who was driving
the vehicle when the accident occurred.
¶ 26 Patrol Sergeant Jason Hintz testified that he was dispatched to the accident
scene at approximately 6 a.m. in response to a report of someone lying in a ditch.
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Upon arrival, Hintz observed defendant sitting on the shoulder of the roadway.
Defendant told Hintz that he did not know what happened or how he got there.
Hintz testified that defendant “just repeated himself stating that he did not know
who was driving and basically stated that nobody should have been driving.” Hintz
did not crouch down to speak eye-to-eye with defendant, and he did not detect an
odor of alcohol as they spoke. Hintz described his conversation with defendant as
“very limited,” and he did not detect any slurred speech “with the minimal that he
said.”
¶ 27 Hintz testified that paramedics arrived and treated defendant in the ambulance.
Hintz set up a roadblock and asked defendant if he had made any phone calls.
Defendant retrieved his phone from his pocket and handed it to Hintz, indicating
that he could not recall making or receiving any phone calls. Hintz later obtained a
search warrant for defendant’s cell phone, but he could not access the phone’s
records because the passcodes defendant provided did not unlock the phone.
¶ 28 Firefighter paramedic Lawrence VanHoorelbek testified that, when he arrived
at the scene at 6:20 a.m., he observed defendant sitting in the ditch beside Tanya’s
body. He asked what happened, but defendant could not recall. VanHoorelbek
testified that defendant did not want to leave Tanya but that he eventually entered
the ambulance and was transported to the hospital. VanHoorelbek observed redness
on defendant’s left shoulder and abrasions on his lower right abdomen above the
hip, which VanHoorelbek indicated were consistent with driver’s side seat belt
injuries.
¶ 29 Firefighter paramedic Nicole McDevitt testified that she was dispatched to the
scene with VanHoorelbek. Upon arrival, McDevitt observed Tanya’s body in the
ditch. McDevitt did not see the Jeep at first but later observed it “up on a berm
probably about 15 feet away from” Tanya. McDevitt noted that Tanya had no pulse,
no signs of life, and was very cold to the touch, indicating no circulation “for quite
some time.”
¶ 30 Nurse Kathleen Bolanowski testified that on June 26, 2016, she treated
defendant in the emergency room of McHenry Hospital. Bolanowski observed
bruises on defendant’s left shoulder and right hip, which she explained were
consistent with a “seat belt mark.” She smelled alcohol on defendant but described
him as awake, alert, cooperative, and speaking clearly. Bolanowski confirmed that
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defendant was diagnosed with a concussion and he “couldn’t really recall what
happened.”
¶ 31 Bolanowski testified that defendant arrived at the emergency room at
approximately 7 a.m. and Dr. Reddy—the attending physician—ordered a blood
draw at approximately 7:17 a.m. to test for alcohol. Bolanowski collected
defendant’s blood for the test. People’s exhibit 13 was introduced, which
Bolanowski identified as a printout of the serum alcohol test reflecting a result of
155 milligrams per deciliter of alcohol. Bolanowski indicated that “the legal range
of intoxication is greater than 80.”
¶ 32 Physician Archana Reddy testified that she treated defendant in the emergency
room on June 26, 2016. Dr. Reddy ordered a blood test to determine if defendant
was “above the legal limit for driving” because he reported that he was not sure if
he was the driver in the accident and he “appeared intoxicated.” Dr. Reddy
confirmed that the blood test established defendant’s serum alcohol level was 155,
which she described as “an elevated level” and, based on her training and
experience, the result demonstrated that defendant was intoxicated. Dr. Reddy
testified that conversions to whole blood are not conducted at the hospital. She
clarified that “we always order serum,” as opposed to whole blood alcohol tests.
Dr. Reddy confirmed that defendant sustained a concussion in the accident.
¶ 33 Officer Jack Zumwalt of the McHenry Police Department testified that he
interviewed defendant in the emergency room at approximately 8:16 a.m. Zumwalt
described defendant’s eyes as glassy and bloodshot and indicated that he “seemed
thick-tongued. Not slurred necessarily, but cotton mouth of sorts.” Defendant
informed Zumwalt that he attended a party the night before and he hid his keys “so
that nobody could get to them.” Defendant told Zumwalt that “nobody drives his
Jeep specifically because it’s some kind of special diesel Jeep, so only he drives it.”
On cross-examination, Zumwalt confirmed that his report reflected that defendant
had allowed others to drive his Jeep in the past, but defendant specified that Tanya
had not driven it.
¶ 34 Defendant informed Zumwalt that he consumed Jell-O shots at the party and
“about three to four glasses of Jack and Coke,” which he kept spilling, so he did
not drink the full amounts. The last thing defendant remembered before the accident
was a large bonfire at the party. The next thing he recalled was waking up in a ditch.
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¶ 35 Marc Fisher testified that he had been employed as an officer with the McHenry
Police Department for approximately 19 years and was one of the officers who
investigated defendant’s case. Fisher testified that he had received training on and
was familiar with Title 20, section 1286.40, of the Administrative Code (20 Ill.
Adm. Code 1286.40 (2015)) and the mathematical formula therein for converting
blood plasma alcohol concentration to a whole blood equivalent.
¶ 36 Defense counsel objected on the grounds that Fisher was not an expert in
toxicology. Outside the presence of the jury, in response to defendant’s objection,
the State argued that People v. Stipp, 349 Ill. App. 3d 955 (2004), held that it is no
longer necessary for an expert to testify about the conversion factor so long as a
foundation is established. The State asserted that, here, a foundation for defendant’s
serum alcohol concentration was established by the testimony of the emergency
room nurse and physician and defendant’s serum alcohol test results had been
admitted with no objection. The State indicated that the conversion factor is
codified in section 1286.40 and “it’s a mathematical equation” that “[a]nybody with
a calculator could do” because “[i]t’s simple math.”
¶ 37 Defense counsel distinguished Stipp, in which the parties agreed before the trial
to apply the conversion factor. In contrast, here, the conversion factor was not
agreed to, or even discussed, before trial. Defense counsel added that Fisher could
not be meaningfully cross-examined because “he’s not going to know anything
about what could possibly affect or impact that conversion. He is just going to say,
a mathematical equation, and I can’t cross examine the equation.” Defense counsel
cited People v. Love, 2013 IL App (3d) 120113, which held that there may be a
special cautionary instruction to advise the jury that it is not mandatory to accept
the conversion factor. The trial court overruled defendant’s objection on the basis
of Stipp and stated that it would revisit the jury instruction issue.
¶ 38 Fisher returned to the witness stand and testified that, applying the conversion
formula here, “[y]ou would divide the blood serum level, which in this case is .155,
by 1.18 to get a [whole blood alcohol concentration of] [.]131,” which Fisher agreed
exceeded the legal limit of 0.08 for DUI in Illinois.
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¶ 39 Jury Instruction Conference
¶ 40 At the jury instruction conference, defense counsel tendered a non-Illinois
Pattern Jury Instruction (non-IPI). The instruction was modeled after Illinois
Pattern Jury Instructions, Criminal, No. 23.30A (4th ed. 2000), but it was a non-IPI
because, based on Love, it cautioned the jury that it was not required to accept the
conversion factor set forth in section 1286.40 of Title 20 of the Administrative
Code. The State objected to using the instruction, indicating that in Love, the circuit
court took judicial notice of the conversion factor but here, the conversion factor
was introduced through Fisher’s testimony, which was subject to cross-
examination.
¶ 41 The circuit court refused to admit the jury instruction. It distinguished Love
because the court in that case took judicial notice of the Administrative Code so
that under Illinois Rule of Evidence 201(g) (eff. Jan. 1, 2011), the court was
required to caution the jury that it was not mandated to accept the conversion factor
as a conclusive fact. The circuit court emphasized that, here, the conversion factor
was not judicially noticed but was introduced by Fisher, who testified that he was
familiar with it and had received training on it. The circuit court reasoned that a
limiting instruction was not necessary because, just as with any other witness, the
jury was free to accept or reject Fisher’s testimony.
¶ 42 Citing Stipp, the circuit court agreed that the conversion factor did not need to
be introduced by expert testimony because it “is a mathematical equation. It is not
something that the jury would need an expert to explain to them or is something out
of the ordinary knowledge that the jury would possess. The jurors can apply the
conversion rate by themselves without having an expert witness [to explain] it.” For
those reasons, the circuit court sustained the State’s objection to the jury instruction.
¶ 43 Closing Arguments, Verdict, and Sentencing
¶ 44 During closing arguments, the State argued that the evidence established the
elements of both counts of aggravated DUI. For count I, the State was required to
prove defendant’s blood alcohol concentration was 0.08 or greater while driving.
The State asserted that defendant’s blood was tested over four hours after the
accident and the results established that defendant’s BAC “[wa]s still a .131.
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Therefore, you know at the time of the accident he’s way over a [0].08.” For count
II, the State was required to prove that defendant was under the influence of alcohol
while driving. The State cited the lengthy list of testimony and evidence in support,
including that “[a]t 7:24 in the morning, [defendant] is a .131. *** Of course, at the
time of the accident, he was under the influence.”
¶ 45 On February 25, 2019, the jury convicted defendant on both counts of
aggravated DUI. At sentencing, the circuit court merged count II into count I and
sentenced defendant to six years in the Illinois Department of Corrections.
¶ 46 Appellate Court Majority Opinion
¶ 47 On appeal, defendant argued that the circuit court abused its discretion by
allowing the State to introduce the conversion factor set forth in section 1286.40
via Fisher’s testimony, such that the State failed to prove defendant’s whole blood
alcohol concentration was 0.08 or higher, as required to obtain his conviction on
count I. 2021 IL App (2d) 190689, ¶ 49. Citing People v. Thoman, 329 Ill. App. 3d
1216 (2002), defendant argued that the State could establish the conversion factor
through (1) expert witness testimony or (2) judicial notice of the conversion factor
in section 1286.40. 2021 IL App (2d) 190689, ¶ 53. Defendant maintained that
Fisher was not an expert in toxicology, he lacked the expertise to inform the jury
what factor to use, and he lacked the knowledge of converting blood serum alcohol
concentration into whole blood alcohol equivalents. Id. ¶ 51.
¶ 48 The appellate court majority disagreed, finding defendant’s reading of Thoman
was too narrow. Id. ¶ 60. Observing Stipp, in which the section 1286.40 conversion
factor was discussed in the lay testimony of a laboratory technician (id. ¶¶ 66-67
(citing Stipp, 349 Ill. App. 3d at 957-58)), the majority found that Stipp undermined
defendant’s argument that the conversion factor may only be admitted by judicial
notice or expert testimony (id. ¶ 67). Here, the majority described the conversion
as a “simple calculation” and stressed that the figures to calculate the conversion
“were facts within Fisher’s personal knowledge.” Id. ¶ 61. It added that Fisher’s
testimony was predicated on his personal training and experience and did not
extend to any areas of scientific knowledge. Id. ¶ 75. Accordingly, the majority
concluded that judicial notice and expert witness testimony are not the only means
to establish the conversion factor. Id. ¶ 60.
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¶ 49 The majority further noted that the conversion factor was provided in section
1286.40 as a valid exercise of the Department of State Police (ISP) to promulgate
standards, to prescribe regulations to implement section 11-501.2 of the Vehicle
Code, and to approve methods of analyzing blood—including the authority to
provide the conversion factor. Id. ¶ 62. It asserted that ISP has the “authority to
implement statutory law,” the “Administrative Code has the force and effect of law,
and its rules and regulations are presumed valid.” Id. The majority concluded on
that basis that Fisher’s testimony was admissible to establish the conversion factor.
Id. ¶ 63.
¶ 50 In addition to the issue of the admissibility of Fisher’s testimony, defendant also
argued that the circuit court abused its discretion in denying his posttrial motion to
substitute counsel. Id. ¶ 49. The appellate court unanimously agreed on this issue,
recognizing that a defendant’s sixth amendment right to counsel includes the right
to counsel of choice and concluding that the record did not support the circuit
court’s finding that the motion was a delaying tactic. Id. ¶ 93. Therefore, the
appellate court affirmed defendant’s conviction but vacated his sentence and
remanded for new posttrial proceedings. Id. ¶ 95.
¶ 51 Appellate Court Dissent
¶ 52 The dissent disagreed with the majority’s conclusion that a lay witness may
testify about the conversion factor simply because the Administrative Code
provides the formula. Id. ¶ 99 (Brennan, J., dissenting). The dissent emphasized the
consensus of the scientific community that the precise conversion factor varies,
based on individual differences and the circumstances associated with collecting
the blood sample. Id. ¶ 100 (citing Carol A. Roehrenbeck & Raymond W. Russell,
Blood Is Thicker Than Water, 8 Crim. Just. 14, 15 (1993), and People v. Green, 294
Ill. App. 3d 139, 146 n.2 (1997)). In other words, the dissent asserted there is no
single formula to convert a blood serum alcohol reading to a whole blood alcohol
reading. 2021 IL App (2d) 190689, ¶ 100.
¶ 53 The dissent asserted that “ ‘blood serum alcohol concentration test results are
often 12% to 20% higher than whole blood alcohol concentration test results, so
blood serum alcohol can be divided by a corresponding factor between 1.12 and
1.20 to be converted to whole blood alcohol concentrations.’ ” Id. ¶ 102 (quoting
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People v. Olsen, 388 Ill. App. 3d 704, 712-13 (2009)). Exemplifying this variance,
the dissent indicated that in Illinois, ISP provided the conversion factor of 1.18 in
section 1286.40, while West Virginia established its own factor of 1.16. Id. ¶ 101.
¶ 54 The dissent took note of Olsen, in which the Second District appellate court
held that a circuit court may—but is not required to—take judicial notice of the
1.18 conversion factor in section 1286.40. Id. ¶ 106 (citing Olsen, 388 Ill. App. 3d
at 717). The dissent further noted three appellate court districts in Illinois held that
the 1.18 conversion factor could be established by judicially noticing section
1286.40 but that, in those cases, the defendants did not directly challenge ISP’s
selection of 1.18 as the conversion factor. Id. ¶ 103 (citing People v. Cruz, 2019 IL
App (1st) 170886, Love, 2013 IL App (3d) 120113, and Thoman, 329 Ill. App. 3d
at 1219).
¶ 55 The dissent added that, where a circuit court judicially notices section 1286.40,
it must also instruct the jury “that it may, but is not required to, accept as conclusive
any fact judicially noticed.” (Internal quotation marks omitted.) Id. ¶ 106. The
dissent asserted that here, by establishing the conversion factor through Fisher’s
testimony, the State avoided the circuit court’s gatekeeping function of judicial
notice, as well as the corresponding jury instruction. Id. ¶ 107.
¶ 56 The dissent categorized Fisher’s testimony as opinion testimony, which is
governed by Illinois Rules of Evidence 701 and 702. Id. ¶ 108 (citing Ill. Rs. Evid.
701, 702 (eff. Jan. 1, 2011)). The dissent stressed that, by affirming the admission
of Fisher’s testimony, the majority sidestepped the evidentiary limitations of Rule
701 that, if a witness is not an expert, the testimony is limited to opinions or
inferences that are (1) rationally based on the witness’s perception; (2) helpful to
clearly understand the witness’s testimony or to determine a fact in issue; and
(3) not based on technical, scientific, or specialized knowledge within the scope of
Rule 702. Id. ¶ 109 (citing Ill. R. Evid. 701(c) (eff. Jan. 1, 2011)).
¶ 57 The dissent would have concluded that the conversion factor in section 1286.40
is a scientific fact that may not be established without expert testimony (id. ¶ 113)
and, as such, Fisher’s lay opinion testimony was improper, as he was not qualified
as an expert and his testimony exceeded the scope of the common knowledge of a
layperson (id. ¶ 111). In sum, the dissent disagreed that section 1286.40
“talismanically changed the process for converting blood serum alcohol
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concentration from scientific evidence into evidence upon which any lay person
may opine.” Id. ¶ 113. Accordingly, the dissent would have reversed defendant’s
conviction on count I and remanded for a new trial. 1 Id. This court allowed
defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct. 1, 2021).
Additional facts will be provided as necessary throughout the remainder of this
opinion.
¶ 58 ANALYSIS
¶ 59 The issues before this court are (1) whether the circuit court erred by admitting
Fisher’s testimony regarding the conversion factor in section 1286.40 of Title 20 of
the Administrative Code, such that the State failed to prove defendant’s whole
blood alcohol concentration was 0.08 or greater when he drove, as required to
secure a conviction on count I (625 ILCS 5/11-501(a)(1) (West 2016)), and
(2) whether the admission of Fisher’s testimony regarding the conversion factor in
section 1286.40 deprived defendant of a fair trial on count II, in which the State
was required to prove defendant was under the influence of alcohol when he drove
(id. § 11-501.2(b)(3)). Admission of evidence is within the sound discretion of a
circuit court, and we will not reverse a decision to admit evidence absent an abuse
of that discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010). An abuse of
discretion occurs where the circuit court’s decision is arbitrary, unreasonable, or
fanciful or where no reasonable person would have taken the position adopted by
the circuit court. Id.¶ 60 Blood Serum and Whole Blood Alcohol Concentrations
¶ 61 At the outset, we provide a brief review of blood serum and whole blood alcohol
concentrations to contextualize the issues on appeal. Blood alcohol concentration
is measured by blood serum or whole blood. Green, 294 Ill. App. 3d at 147. Blood
serum and whole blood are not equal. Id. at 144-45. Whole blood is composed
primarily of red blood cells and plasma, with traces of white blood cells, platelets,
and fibrous proteins. Roehrenbeck, supra, at 15. Blood serum is an essential
component of whole blood that remains after red and white blood cells and other
1
The dissent made no comment regarding defendant’s conviction on count II.
- 15 -
particulates are removed from a blood specimen. Green, 294 Ill. App. 3d at 145
(citing Stedman’s Medical Dictionary 1278 (24th ed. 1984)). The absence of red
and white blood cells and other particulates increases the water percentage of blood
serum. Id. This results in higher alcohol concentration levels in blood serum as
compared to whole blood because alcohol has an affinity for water. Id. (citing
Roehrenbeck, supra, at 15).
¶ 62 The volume of red blood cells—known as the hematocrit—is significant
because red blood cells fill space that could otherwise be occupied by water and
alcohol. Roehrenbeck, supra, at 15. The hematocrit varies between individuals and
genders and changes from moment to moment in the same person. Id. at 15, 17.
Many factors impact the hematocrit, such as body movement, fever, anemia,
dehydration, medication, and even the altitude at which the blood test is conducted.
Id. at 15. A high hematocrit is indicative of a high level of red blood cells, which
in turn signifies lower levels of water and alcohol. Id.
¶ 63 Section 11-501.2(a)(5) of the Vehicle Code defines “alcohol concentration” as
“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 2016). Although the Vehicle Code does
not provide a definition for the term “blood,” Illinois courts have established that
whole blood is the standard unit required by the Vehicle Code. See People v.
Niemiro, 256 Ill. App. 3d 904, 914 n.2 (1993); Green, 294 Ill. App. 3d at 144;
Thoman, 329 Ill. App. 3d at 1218; Stipp, 349 Ill. App. 3d at 958.
¶ 64 Whole blood alcohol concentration is established by either (1) whole blood
alcohol concentration test results or (2) blood serum alcohol concentration test
results converted into whole blood equivalents. See Green, 294 Ill. App. 3d at 147;
Thoman, 329 Ill. App. 3d at 1218; Stipp, 349 Ill. App. 3d at 958. Where a blood
serum alcohol concentration test was conducted but a whole blood alcohol
concentration test was not, the State must introduce a conversion factor into
evidence so the factfinder can convert the blood serum alcohol test result to its
whole blood equivalent. See Olsen, 388 Ill. App. 3d at 715.
¶ 65 The conversion factor between blood serum and whole blood alcohol
concentrations is not the same in every case. Illinois courts have recounted expert
testimony to indicate that, because blood serum alcohol concentration may be
anywhere between 12% to 20% higher than whole blood alcohol, “blood serum
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concentration test results are converted by dividing [the serum test result] by a
corresponding factor between 1.12 [and] 1.20.” Thoman, 329 Ill. App. 3d at 1218-
19; People v. Menssen, 263 Ill. App. 3d 946, 953 (1994); see also Green, 294 Ill.
App. 3d at 146 n.2 (1.16 average is in the scientifically acceptable range). Because
each person has a different blood serum to whole blood ratio, the proper conversion
formula varies between individuals. Roehrenbeck, supra, at 18. Because of these
differences, an average conversion factor is arbitrary, and only a scientifically
acceptable range of conversion factors exists. See id. at 17; Thoman, 329 Ill. App.
3d at 1218-19; Menssen, 263 Ill. App. 3d at 953; Green, 294 Ill. App. 3d at 146 n.2.
¶ 66 Applicable to the case at bar, the legislature charged ISP with the duty of
promulgating standards for the chemical analyses of “blood, urine, breath, or other
bodily substance” and to “prescribe regulations as necessary to implement” section
11-501.2 of the Vehicle Code (625 ILCS 5/11-501.2(a)(1) (West 2016)), which
governs DUI offenses in Illinois (see id. § 501). Section 1286.40 is part of the
regulations prescribed by ISP. See Petraski v. Thedos, 382 Ill. App. 3d 22, 29
(2008). Section 1286.40 is titled “Conversion of a Blood Serum or Blood Plasma
Alcohol Concentration to a Whole Blood Equivalent” and provides that “[t]he
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 (2015).
¶ 67 In promulgating section 1286.40, ISP prescribed a specific conversion factor—
1.18—that fell within the scientifically acceptable range of 1.12 to 1.20. See
Thoman, 329 Ill. App. 3d at 1218-19; Menssen, 263 Ill. App. 3d at 953; Green, 294
Ill. App. 3d at 146 n.2. The crux of this appeal turns on the propriety of the
admission of Fisher’s lay witness testimony to convey this 1.18 conversion factor
to the jury.
¶ 68 Count I
¶ 69 Turning to the issues on appeal, we first examine whether the circuit court erred
by admitting Fisher’s testimony regarding the conversion factor of 1.18 in section
1286.40 of Title 20 of the Administrative Code, such that the State failed to prove
defendant’s whole blood alcohol concentration was 0.08 or greater when he drove,
as required by the Vehicle Code to secure a conviction on count I. See 625 ILCS
5/11-501(a)(1) (West 2016).
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¶ 70 Before proceeding, we note the State’s claims that defendant “forfeited any
challenge to [ISP’s] selection of 1.18 as the applicable conversion factor” and that
he forfeited the argument that section 1286.40 creates an unconstitutional
mandatory presumption. We find these claims do not accurately state the issue
before this court. Defendant does not challenge ISP’s authority to promulgate
section 1286.40 or its selection of the 1.18 conversion factor. Nor does he contend
that section 1286.40 creates a mandatory presumption. Rather, the issue is whether
the circuit court abused its discretion in admitting Fisher’s lay witness testimony to
convey the 1.18 conversion factor to the jury. That issue is properly preserved, as
defendant raised it in the lower courts. As such, we proceed in our analysis of this
issue.
¶ 71 A conversion of defendant’s blood serum alcohol concentration test result was
necessary in this case because whole blood is the standard unit required by the
Vehicle Code and defendant’s whole blood alcohol concentration was not tested.
See Niemiro, 256 Ill. App. 3d at 914 n.2; Green, 294 Ill. App. 3d at 144; Thoman,
329 Ill. App. 3d at 1218; Stipp, 349 Ill. App. 3d at 958. The 1.18 conversion factor
was conveyed to the jury by Fisher’s testimony. Defendant maintains that the circuit
court abused its discretion by admitting that testimony, as it was not direct evidence
from which a reasonable trier of fact could determine that his whole blood alcohol
concentration was 0.08 or greater. Defendant explains that, rather than providing
direct evidence, all the State proved was that four hours after the accident
defendant’s blood serum alcohol concentration was 0.155 grams per deciliter. The
State then called Fisher—a lay witness with no expertise in toxicology—who
testified that he was familiar with the conversion formula in section 1286.40 and
that, to apply that formula here, “[y]ou would divide the blood serum level [of]
.155, by 1.18 to get a [whole blood alcohol concentration of] [0.]131.”
¶ 72 Defendant urges that the conversion factor is a scientific fact that may not be
proven by a lay witness testifying to the existence of section 1286.40 of Title 20 of
the Administrative Code. Defendant points out that the conversion factor has
traditionally been established by experts, as is the usual process of proving a
scientific fact. See Menssen, 263 Ill. App. 3d at 952-53; People v. Luth, 335 Ill.
App. 3d 175, 180 (2002); Petraski, 382 Ill. App. 3d at 25. Defendant maintains that
the conversion factor exists independently of section 1286.40 and a lay witness
testifying to his familiarity with a number in that section does not provide the jury
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with direct evidence of defendant’s whole blood alcohol concentration. As such,
defendant requests this court to find that the circuit court abused its discretion in
admitting Fisher’s lay testimony regarding the existence of section 1286.40 to
establish the conversion factor and to reverse his conviction on count I.
¶ 73 The State responds that Fisher’s testimony was based entirely on his
recollection of section 1286.40, which governed his investigation of defendant’s
conduct, and lay testimony regarding the content of regulations is commonly
admitted in Illinois. The State urges that Fisher had personal knowledge of the
conversion factor and the appellate court recognized that his testimony did not
assert any opinions (2021 IL App (2d) 190689, ¶ 73 (majority opinion)), nor did it
“stray into areas that required any scientific, technical, or other specialized
knowledge,” such that expert testimony was required (id. ¶ 75). The State adds that
Fisher did not offer an opinion regarding the accuracy of or the science behind the
conversion factor. Accordingly, the State contends that the testimony was properly
admitted. We agree with defendant.
¶ 74 Scientific evidence is based on principles that are not within the knowledge or
experience of the average juror. See People v. McKown, 226 Ill. 2d 245, 256-57
(2007); People v. Mertz, 218 Ill. 2d 1, 72 (2005). Such evidence is meaningless to
an average juror unless it is accompanied by an explanation provided by an expert
witness. McKown, 226 Ill. 2d at 257. Here, our cursory review of the scientific
principles underlying the formula for converting blood serum to whole blood
alcohol concentrations demonstrates that the subject matter is complex and beyond
the scope of what the average juror would understand. Thus, we disagree with the
appellate court majority that Fisher’s testimony did not “stray into areas that
required any scientific, technical, or other specialized knowledge,” such that expert
testimony was required. See 2021 IL App (2d) 190689, ¶ 75.
¶ 75 A lay witness opinion must be based on the witness’s personal observations and
recollection of concrete facts rather than on specialized knowledge. People v.
Novak, 163 Ill. 2d 93, 103 (1994); Ill. R. Evid. 701(c) (eff. Jan. 1, 2011). Here,
Fisher’s testimony was outside the bounds of his personal observations and
recollection of concrete facts. Moreover, he testified beyond the common
knowledge of a layperson and offered an opinion based on specialized knowledge
within the scope of Rule 702 by testifying to the conversion factor, thus violating
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the evidentiary limitations of Rule 701. See Ill. R. Evid. 701(c) (eff. Jan. 1, 2011).
Fisher’s testimony would have been proper if he were otherwise qualified as an
expert under Rule 702. See Ill. R. Evid. 702 (eff. Jan. 1, 2011). However, that was
not accomplished here, and the circuit court admitted Fisher’s testimony over
defendant’s objection that Fisher was not qualified as an expert.
¶ 76 The State insists that no expert testimony was necessary here because applying
the conversion factor requires only a simple division problem that the average juror
can calculate. Although we agree that the mathematical problem may be simple,
determining the conversion factor is not. Indeed, the conversion factor is a scientific
fact originating from a process so complex that it requires an explanation a lay
witness is not equipped to provide. See McKown, 226 Ill. 2d at 256-57.
Accordingly, it was improper to present the conversion factor to the jury by Fisher’s
testimony, as he was not qualified as an expert and his testimony exceeded the
scope of the common knowledge of a layperson. See id.; Ill. R. Evid. 701(c) (eff.
Jan. 1, 2011).
¶ 77 The State concedes that the conversion factor is derived from scientific studies
but urges that the same is true of many testing devices that produce results about
which police officers routinely testify. In support, the State cites cases in which
police officers provided lay testimony regarding the scientific accuracy and use of
a radar gun (People v. Abdallah, 82 Ill. App. 2d 312, 317 (1967); People v.
Donohoo, 54 Ill. App. 3d 375, 377-78 (1977)), the use of a field test to determine
the presence of a controlled substance (People v. Harrison, 26 Ill. 2d 377, 379-80
(1962); People v. $1,002 United States Currency, 213 Ill. App. 3d 899, 902-04
(1991)), and the administration of a roadside test to judge impairment (People v.
Buening, 229 Ill. App. 3d 538, 545-46 (1992)).
¶ 78 We find these cases inapposite because, here, the issue does not involve the
admissibility of a chemical field test for narcotics or taking judicial notice of the
use of tuning forks to confirm the accuracy of a radar device. In this case, no
accuracy checks were presented to dispense with the need for expert testimony as
to the conversion factor, the circuit court did not judicially notice a scientific fact
that has been generally accepted by the scientific community, and, unlike the
State’s cases, the issue here involves a lay witness testifying to the content of an
- 20 -
Administrative Code provision in an attempt to prove a scientific fact, as discussed
in detail, infra.
¶ 79 Here, the appellate court majority observed that “[t]he Administrative Code has
the force and effect of law, and its rules and regulations are presumed valid.” 2021
IL App (2d) 190689, ¶ 62. It further found that the legislature exercised its “power
to prescribe new and alter existing rules of evidence or to prescribe methods of
proof” by delegating to ISP “the authority to implement the provision of the
[Administrative] Code regarding chemical and other tests, including the authority
to provide a fixed conversion factor to convert blood serum alcohol concentration
into whole blood equivalents.” Id. The majority recognized that Fisher lacked
knowledge of the scientific principles underlying the difference between blood
serum and whole blood alcohol concentrations but determined it was “unnecessary
for him to be an expert in the underlying science in order to testify as to the
conversion factor because he had received training on the *** conversion factor.”
Id. ¶ 63. We disagree.
¶ 80 Fisher’s testimony established that he was familiar with section 1286.40 and
that he applied the conversion factor of 1.18 therein as the divisor to defendant’s
blood serum alcohol concentration of 0.155, resulting in a quotient of 0.131, which
Fisher identified as defendant’s whole blood alcohol concentration. We do not
agree that Fisher’s testimony proves what the State intended it to prove. Namely,
the testimony does not and cannot definitively prove, as a fact, defendant’s whole
blood alcohol concentration when he drove.
¶ 81 Administrative regulations have the force and effect of law, not fact. See Kean
v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 369 (2009). Yet here, Fisher’s testimony
regarding section 1286.40 purported to demonstrate a scientific fact.
Notwithstanding that the 1.18 conversion factor was promulgated by administrative
regulation in section 1286.40, it is nonetheless a scientific fact. As such, we agree
with defendant that the appellate court conflated the concepts of fact and law by
holding that Fisher could testify to section 1286.40’s conversion factor and the jury
could rely on that testimony to conclude that the factor was 1.18 because section
1286.40 has the “force and effect of the law.” 2021 IL App (2d) 190689 ¶¶ 62, 70,
76.
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¶ 82 A “fact” is defined as “[s]omething that actually exists; an aspect of reality.”
Black’s Law Dictionary (11th ed. 2019). It is the province of the jury to determine
the facts of a case by weighing the evidence. Maple v. Gustafson, 151 Ill. 2d 445,
452 (1992). A “law” is defined as “[t]he set of rules or principles dealing with a
specific area of a legal system.” Black’s Law Dictionary (11th ed. 2019). The jury
learns the law by being instructed by the judge. People v. Bruner, 343 Ill. 146, 168
(1931). A scientific fact is “the product of scientific tests or studies” and is beyond
the ken of the average layperson. McKown, 226 Ill. 2d at 254. It is typically proved
with evidence that, without explanation from an expert witness, is meaningless to
a layperson. Id. at 257. The conversion factor here is such a scientific fact.
¶ 83 The State provides no authority revealing that the legislature is authorized to
legislate a scientific fact of a case by statute or administrative regulation. The
dissenting justice in the appellate court aptly noted that section 1286.40 appears to
be the only instance in Illinois law “where scientific evidence has been codified to
dispense with the need for expert testimony.” 2021 IL App (2d) 190689, ¶ 113
(Brennan, J., dissenting). Though statutes and administrative regulations do have
the force and effect of law (see Kean, 235 Ill. 2d at 369), there is no basis for a
regulation to provide particular scientific facts in any given case. Yet, that is what
occurred here.
¶ 84 Fisher testified to the existence of the conversion factor of 1.18 in section
1286.40 of Title 20 of the Administrative Code, which is a scientific fact produced
by a scientific process. Fisher’s testimony was not presented to confirm section
1286.40 as having the force and effect of law but as an attempt to establish—as a
fact—that defendant’s whole blood alcohol concentration was 0.131. Yet neither
Fisher’s testimony nor the existence of section 1286.40 proves that, as there is no
single formula to convert a blood serum alcohol reading to a whole blood alcohol
reading. See Roehrenbeck, supra, at 15; Green, 294 Ill. App. 3d at 146 n.2. All that
was proven here was that in the emergency room, defendant’s blood serum alcohol
concentration was 0.155 grams per deciliter. Fisher’s familiarity with section
1286.40 and the application of the conversion factor therein to defendant’s blood
serum alcohol concentration test result in no way proved, as a fact, defendant’s
whole blood alcohol concentration.
- 22 -
¶ 85 There is a scientifically acceptable range of possible conversion factors—
defined by science and developed by toxicologists—based on a determination of
the average amounts of serum and other matter in whole blood. See Thoman, 329
Ill. App. 3d at 1218-19; Menssen, 263 Ill. App. 3d at 953; Green, 294 Ill. App. 3d
at 146 n.2; Luth, 335 Ill. App. 3d at 180; Roehrenbeck, supra, at 14, 18. Because
of the scientific process involved, expert witnesses in previous cases testified to
establish that scientifically acceptable range (see Roehrenbeck, supra, at 14, 18),
and we agree with defendant that expert testimony is required to establish that
process and to explain how the conversion factor in section 1286.40 is derived from
that process and falls within the scientifically acceptable range.
¶ 86 Here, the State did not provide expert testimony to establish the scientifically
acceptable range or that the 1.18 conversion factor in section 1286.40 falls within
that range. All the jury received here was Fisher’s testimony that section 1286.40
provides the 1.18 factor to convert defendant’s blood serum alcohol concentration
test result into its whole blood equivalent, which—when applying that formula
here—resulted in a whole blood alcohol concentration of 0.131. We find that
testimony is insufficient to prove defendant’s whole blood alcohol concentration
and that its admission was in error.
¶ 87 Though the circuit court did not take judicial notice of section 1286.40 in this
case—nor was it requested to do so—we yet discuss whether judicial notice of
section 1286.40 impacts the need for expert testimony, as the parties assert
disparate stances on that issue. To further support its argument that expert testimony
was not necessary, the State cites the appellate court majority’s statement that if the
dissent was “correct in concluding that establishing the conversion factor requires
expert testimony,” a court could never “take judicial notice of section 1286.40 of
Title 20 of the Administrative Code because a judicially noticed fact must be
‘capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.’ ” 2021 IL App (2d) 190689, ¶ 75 (majority
opinion) (quoting Ill. R. Evid. 201 (eff. Jan. 1, 2011)). On that basis, the majority
concluded that Fisher’s testimony was properly admitted because “[t]here is no fact
that is susceptible to judicial notice that cannot be introduced through some other
means.” Id.- 23 -
¶ 88 The State applies that reasoning here, arguing that Fisher’s testimony was
properly admitted because section 1286.40 is susceptible to judicial notice, thereby
dispensing with the need for expert testimony. We disagree. Illinois courts have
established that, besides expert testimony, section 1286.40 may also be judicially
noticed. See, e.g., Olsen, 388 Ill. App. 3d at 717; Thoman, 329 Ill. App. 3d at 1220.
Section 1286.40 is “not subject to reasonable dispute in that” its existence is
“capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” See Ill. R. Evid. 201(b) (eff. Jan. 1, 2011).
Accordingly, when a court takes judicial notice of section 1286.40, it accepts that
section’s existence rather than its truth. As such, taking judicial notice of section
1286.40 does not violate Rule 201. See id.
¶ 89 Notably, though the existence of section 1286.40 is not subject to reasonable
dispute, the truth of the 1.18 conversion factor provided in that section is, as
summarized by the appellate court dissent’s comment that the “conversion factor is
an incomplete picture of the scientific community’s understanding that blood serum
alcohol concentration test results are often 12% to 20% higher than whole blood
alcohol concentration test results” and “blood serum alcohol concentrations can be
divided by a corresponding factor between 1.12 and 1.20 to be converted to whole
blood alcohol concentrations.” 2021 IL App (2d) 190689, ¶ 105 (Brennan, J.,
dissenting).
¶ 90 Therefore, the 1.18 conversion factor set forth in section 1286.40 is not “capable
of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” (Emphasis added.) See Ill. R. Evid. 201(b)(2) (eff. Jan.
1, 2011). Accordingly, while a circuit court may take judicial notice of section
1286.40, the application of the 1.18 conversion factor therein is a permissive
presumption that the circuit court need not accept. See Olsen, 388 Ill. App. 3d at
717. As a further safeguard, when a circuit court takes judicial notice of an
adjudicative fact in a criminal proceeding, “the court shall inform 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). For these reasons, we disagree that section 1286.40
being subject to judicial notice dispenses with the need for expert testimony.
¶ 91 We acknowledge the State’s point that, here, defendant’s blood serum alcohol
concentration test result would have converted to a whole blood alcohol
- 24 -
concentration exceeding 0.08 even when applying the highest number of the
scientifically acceptable range of conversion factors. However, this is of no
consequence because the 1.18 conversion factor was not properly admitted into
evidence and, as a result, the State failed to prove defendant guilty beyond a
reasonable doubt on count I. See Thoman, 329 Ill. App. 3d at 1220 (not harmless
error even if applying the highest conversion factor resulted in a whole blood
alcohol concentration over 0.08, as State bears the burden of proving guilt beyond
a reasonable doubt).
¶ 92 For the foregoing reasons, we conclude that the circuit court abused its
discretion by admitting Fisher’s testimony regarding the conversion factor in Title
20, section 1286.40, of the Administrative Code, such that the State failed to prove
defendant’s whole blood alcohol concentration was 0.08 or greater when he drove,
as required to secure a conviction on count I. See 625 ILCS 5/11-501(a)(1) (West
2016). Accordingly, we reverse defendant’s conviction on count I. 2
¶ 93 Count II
¶ 94 The second issue on appeal is whether the erroneous admission of Fisher’s
testimony regarding the conversion factor in section 1286.40 deprived defendant of
a fair trial on count II. To secure a conviction under count II, the State was required
to prove that defendant was under the influence of alcohol while driving. Id.
§ 501(a)(2). Defendant’s whole blood alcohol concentration was relevant to count
II, as section 501.2(b)(3) of the Vehicle Code provides that, if it is established that
a defendant’s blood alcohol concentration level was 0.08 or greater while driving,
it shall be presumed that he was under the influence of alcohol. Id. § 501.2(b)(3).
Accordingly, for purposes of count II, the jury was instructed that it may presume
that defendant was under the influence of alcohol if it found beyond a reasonable
doubt that, at the time defendant drove the vehicle, the amount of alcohol
concentration in defendant’s blood was 0.08 or more. The jury was admonished,
however, that it was never required to make this presumption, but it was for the jury
to determine whether the presumption should be drawn.
2
Having found Fisher’s testimony inadmissible on this basis, we decline to address defendant’s
claim that the testimony constituted inadmissible hearsay.
- 25 -
¶ 95 Erroneous admission of evidence is subject to a harmless error analysis. People
v. King, 2020 IL 123926, ¶ 40. This court has established that a method of
determining whether such an error is harmless is whether the remaining evidence
in the record overwhelmingly supports the conviction. See People v. Wilkerson, 87
Ill. 2d 151, 157 (1981) (error is harmless where other evidence is overwhelming
and upholds the conviction); People v. Nevitt, 135 Ill. 2d 423, 447 (1990)
(evidentiary error is harmless “where there is no reasonable probability that the jury
would have acquitted the defendant absent the” error); People v. Dennis, 181 Ill. 2d
87, 95-96 (1998) (erroneous admission of evidence harmless where evidence of
defendant’s guilt is clear in spite of the error).
¶ 96 In this case, defendant concedes that, besides his whole blood alcohol
concentration, the State presented other evidence from which a reasonable trier of
fact could conclude that he was driving while under the influence of alcohol and
that evidence could sustain his conviction on count II despite any failure to prove
his whole blood alcohol concentration. However, defendant maintains that the
evidence was closely balanced. He notes that the evidence did not clearly establish
the exact time defendant and Tanya left the party nor the exact time of the accident.
Moreover, the accident scene was not discovered until 6 a.m., and none of the
witnesses who interacted with defendant at the scene testified that he appeared
intoxicated or smelled of alcohol. Though the emergency room physician testified
that she ordered the blood draw because defendant appeared intoxicated, the
emergency room nurse described defendant as “alert and cooperative” and his
speech as “clear.” Officer Zumwalt, who interviewed defendant at the hospital
described his speech as “thick-tongued” but not necessarily slurred. Defendant
stresses that none of the partygoers who testified that he was intoxicated interacted
with him even within an hour of the accident. Though defendant acknowledges the
testimony that he sounded drunk and behaved inappropriately, he counters that the
evidence established that he sustained a concussion in the accident. Thus, defendant
asserts that his demeanor was as likely the result of a concussion as it was of any
intoxication.
¶ 97 Defendant urges that, taken together, the evidence of his intoxication was
closely balanced and, because the evidence regarding his whole blood alcohol
content for purposes of count I was such an important part of the State’s case, the
erroneous admission of Fisher’s testimony caused him “grave prejudice,” was not
- 26 -
harmless error, and deprived him of a fair trial. As such, defendant requests this
court to reverse his conviction on count II and remand for a new trial.
¶ 98 The State responds that any error in admitting Fisher’s testimony would not
entitle defendant to a retrial on count II, because other evidence overwhelmingly
established that defendant was under the influence of alcohol while he was driving.
We agree with the State.
¶ 99 We are mindful of the facts in the record supporting defendant’s argument, yet
we do not agree that the evidence was closely balanced. At trial, extensive
testimony established that defendant was driving while under the influence of
alcohol. Multiple witnesses testified that defendant was drinking heavily at the
party. Defendant was observed drinking large glasses of Jack Daniels and Coke, as
well as Jell-O shots. One witness testified that defendant was drinking all day.
Several witnesses described defendant as intoxicated and/or under the influence of
alcohol, indicating that his eyes were glassy and he was very outspoken, bouncy,
and giddy, as opposed to his ordinarily quiet demeanor. A witness who worked as
a bartender for 20 years opined that defendant was intoxicated at the party.
¶ 100 Testimony further established that, during a phone call, defendant indicated that
he was in an accident but he did not know where he was, he joked about watching
pornography on his phone while witnesses were making desperate attempts to
locate him, he was unable to activate the location feature on his phone, and
witnesses had to remind him that Tanya was with him when he heard a woman
screaming but did not know who it was.
¶ 101 Emergency personnel testified that defendant appeared confused, responded “I
don’t know” to their questions, and could not recall what had happened or how he
arrived at the accident scene. Though Officer Hintz did not detect alcohol on
defendant’s breath, he did not speak eye to eye with defendant, and he had very
limited conversation with him. Defendant also told Hintz that “nobody should have
been driving.”
¶ 102 The emergency room physician testified that she ordered the blood draw
because defendant was not sure if he was the driver and he appeared, in her clinical
opinion, to be intoxicated. Though the emergency room nurse described defendant
as alert and cooperative, she testified that she detected alcohol on defendant’s
- 27 -
breath. Moreover, defendant’s blood serum alcohol concentration test result was
0.155 grams per deciliter, which the physician and nurse both considered to be an
elevated level consistent with intoxication. Officer Zumwalt testified that
defendant’s speech was not necessarily slurred during the interview at the hospital,
yet he described defendant’s eyes as glassy and bloodshot and his speech as “thick-
tongued.” Defendant also told Zumwalt that he consumed Jack Daniels and Coke
and Jell-O shots at the party.
¶ 103 Evidence also established that defendant was driving the Jeep when the accident
occurred. Defendant was observed driving the Jeep when he and Tanya left the
party. Multiple witnesses testified that Tanya did not drive because she did not have
a driver’s license and she was afraid of driving. Defendant informed Officer
Zumwalt that he hid his keys because he did not allow anyone else to drive his Jeep
and that Tanya did not drive it. Defendant’s injuries also indicated seat belt marks
originating from the driver’s seat.
¶ 104 Notwithstanding our conclusion that the circuit court abused its discretion in
admitting Fisher’s testimony—which merited reversal of defendant’s conviction on
count I—we yet find the erroneous admission of that testimony was harmless error
as it pertains to defendant’s conviction on count II, as the remaining evidence
overwhelmingly supports the conviction independent of the testimony regarding
defendant’s whole blood alcohol concentration. See Wilkerson, 87 Ill. 2d at 157;
Nevitt, 135 Ill. 2d at 447; Dennis, 181 Ill. 2d at 95-96. Accordingly, we affirm
defendant’s conviction on count II.
¶ 105 As a final note, the appellate court unanimously concluded that the circuit court
abused its discretion in denying defendant’s posttrial motion to substitute counsel
and, on that basis, vacated defendant’s sentence and remanded for new posttrial
proceedings. 2021 IL App (2d) 190689, ¶¶ 79, 95 (majority opinion). The parties
do not dispute that conclusion. Accordingly, we affirm that portion of the appellate
court’s judgment.
¶ 106 CONCLUSION
¶ 107 For the foregoing reasons, we reverse the portion of the appellate court’s
judgment affirming defendant’s conviction on count I; we affirm the balance of the
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appellate court’s judgment. The circuit court’s judgment as to defendant’s
conviction on count I is reversed, the circuit court’s judgment as to defendant’s
conviction on count II is affirmed, and the circuit court’s judgment denying
defendant’s posttrial motion to substitute counsel is reversed.
¶ 108 Appellate court judgment affirmed in part and reversed in part.
¶ 109 Circuit court judgment affirmed in part and reversed in part.
¶ 110 Cause remanded.
¶ 111 JUSTICES ROCHFORD and O’BRIEN took no part in the consideration or
decision of this case.
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