People v. Beck

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Appellate Court Date: 2018.02.01
16:14:44 -06'00'
People v. Beck, 2017 IL App (4th) 160654
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WILLIAM L. BECK, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-16-0654
Filed November 30, 2017
Decision Under Appeal from the Circuit Court of Coles County, No. 14-CF-525; the
Review Hon. Mark E. Bovard, Judge, presiding.
Judgment Affirmed.
Counsel on Lou J. Viverito, of Taylor Law Offices, P.C., of Effingham, for
Appeal appellant.
Brian Bower, State’s Attorney, of Charleston (Patrick Delfino, David
J. Robinson, and Linda Susan McClain, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Steigmann and DeArmond concurred in the judgment and
opinion.
OPINION
¶1 Following a stipulated bench trial, defendant, William L. Beck, was found guilty of
aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(C) (West
2012)) and sentenced to 30 months’ probation. Defendant appeals, arguing the trial court erred
by (1) denying his motion to suppress statements he made to a law enforcement officer, which
he alleges occurred during the course of a custodial interrogation and without the benefit of
Miranda warnings (see Miranda v. Arizona, 384 U.S. 436 (1966)), (2) denying his motion
in limine to bar the State from presenting evidence at trial of the result of a blood draw
performed during his hospitalization, (3) denying his motion in limine to bar the State from
presenting at trial the results of a blood draw performed at the request of law enforcement, (4)
denying his motion in limine to bar the State from offering expert opinion testimony on
retrograde extrapolation, (5) overruling his objections to subpoenas duces tecum utilized by
the State to obtain his hospital records, and (6) finding evidence relevant to the issue of
proximate cause inadmissible. We affirm.
¶2 I. BACKGROUND
¶3 On the evening of October 25, 2014, defendant, who was then 19 years old, was involved
in a motor vehicle accident on a two-lane highway in Coles County, Illinois. The record
reflects defendant’s vehicle collided with a vehicle driven by Alyssa Camp. Both defendant
and Camp sustained injuries in the collision and were transported to Carle Foundation Hospital
(Carle) for emergency medical treatment. Coles County sheriff’s deputy John Clough
investigated the accident and, at Carle, issued defendant a traffic citation for DUI. In
November 2014, the State charged defendant with two counts of aggravated DUI (625 ILCS
5/11-501(d)(1)(C) (West 2012)), alleging that he drove with a blood alcohol concentration
(BAC) of 0.08 or greater (count I) or while under the influence of alcohol (count II) and was
involved in a motor vehicle accident that resulted in great bodily harm to Camp and that his
actions were the proximate cause of Camp’s injuries.
¶4 A. Pretrial Proceedings
¶5 The record reflects the trial court considered numerous pretrial motions filed by the parties,
several of which are at issue on appeal. In April 2015, defendant filed a motion to suppress
statements he made to Clough while hospitalized at Carle. Defendant alleged the statements
concerned his consumption of alcohol on the day of the accident and were elicited by Clough
during the course of a custodial interrogation and without the benefit of Miranda warnings.
¶6 From April to June 2015, defendant also filed a series of motions in limine, asking the trial
court to exclude certain evidence from being offered by the State at his trial. Relevant to this
appeal, he first asked the court to bar the State from offering evidence at trial of the result of a
chemical analysis of a blood specimen (hereinafter hospital blood draw) obtained from him on
the day of his accident, which was conducted at Carle. The record reflects the hospital blood
draw occurred not long after defendant arrived at Carle on the day of the accident and yielded a
serum BAC of 0.211. In support of his request, defendant asserted the hospital blood draw
“was not conducted in accord with the statutory criteria for admissibility in evidence” because
it was performed at the request of a law enforcement agency.
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¶7 In a separate motion in limine, defendant asked the trial court to bar the State from offering
evidence at trial of the result of a chemical analysis of a blood specimen (hereinafter law
enforcement blood draw) taken from him on the day of the accident, which was conducted at
the Illinois State Police (ISP) crime laboratory. The record shows the law enforcement blood
draw was requested by Clough, collected at 3:25 a.m. on October 26, 2014, and yielded a
whole BAC of 0.071. In support of his motion, defendant argued that Clough’s decision to
“charge” him with DUI was based upon the unauthorized disclosure to Clough of the hospital
blood draw results. He maintained that, because the disclosure of those results was
unauthorized, Clough lacked both the probable cause to charge him with DUI and the authority
to obtain the law enforcement blood draw.
¶8 In a third motion in limine, defendant asked the trial court to bar the State from offering
retrograde extrapolation opinion testimony at his trial. He argued that for a retrograde
extrapolation calculation to be valid, two factors had to be established to a reasonable degree of
scientific certainty: (1) the rate at which a person metabolized alcohol and (2) whether the
person was in the post-absorption phase at the time of chemical testing. Defendant maintained
that information disclosed by the State during discovery did “not provide sufficient
information for a qualified witness to render an opinion, to a reasonable degree of scientific
certainty, regarding” either factor.
¶9 In September 2015, the trial court conducted a hearing on defendant’s motion to suppress
and motions in limine. Clough testified regarding his investigation of the motor vehicle
accident and his interactions with defendant. He stated he worked as a Coles County sheriff’s
deputy for 22 years and was the accident investigator for the sheriff’s office. On October 25,
2014, he went to the scene of the accident and took measurements, examined skid marks, and
spoke with witnesses. Based on his examination of the scene and witness statements, he
determined that defendant’s vehicle crossed into Camp’s lane of travel, resulting in a head-on
collision with Camp’s vehicle. While at the scene, Clough was informed that Camp had
sustained severe injuries and “they didn’t know whether she would make it or not.” He was
also advised that the incident “was possibly a DUI investigation.”
¶ 10 Clough testified that he went to Carle to further his investigation. Upon his arrival, he
spoke with defendant’s parents, Camp’s parents, and emergency room staff. He also spoke
with a nurse and inquired if any lab work had been performed by the hospital. Clough was
shown test results indicating defendant had a blood alcohol result of 0.211. After receiving
those results, Clough waited to speak with defendant, who was undergoing a medical
procedure. He spoke with defendant’s parents after obtaining the test results and agreed that he
told them that defendant “was going to be charged with DUI.” Clough testified that, prior to
talking with defendant, he had been given information that led him to believe defendant had
been drinking or that he was under the influence of alcohol.
¶ 11 Clough stated he first saw defendant in a bed in his hospital room. Defendant’s parents
were present and Clough believed a nurse was also in and out of the room. Clough testified he
spoke to defendant briefly, asking him what happened, informing him that Clough “was
go[ing] to charge him with DUI,” and reading to him the “Warning to Motorist.” More
specifically, Clough testified that he read the warning to motorist to defendant at 1:45 a.m.,
then had an initial discussion with defendant “about drinking.” Clough next asked defendant if
he was willing to submit to testing of his blood and urine. Defendant consented to the testing,
and Clough asked a nurse to “do a DUI kit.” Because the emergency room was busy, blood was
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not collected from defendant until approximately 3:25 or 3:26 a.m. While waiting on the nurse
to obtain specimens from defendant, Clough and defendant had a further discussion about
defendant’s consumption of alcohol. During that conversation, defendant reported that he had
been drinking at a party prior to the accident.
¶ 12 Defendant submitted the warning to motorist into evidence, which was signed by Clough
and indicated it was issued to defendant at 1:45 a.m. on October 26, 2014. The initial sentence
of the warning to motorist begins with the phrase “[s]ubsequent to an arrest for [DUI]” and
contains various warnings regarding a DUI arrestee’s driving privileges.
¶ 13 At the hearing, Clough acknowledged that he did not read defendant Miranda warnings
prior to their discussions. Further, he agreed that he obtained defendant’s driver’s license while
at the hospital and that defendant’s license was retained “by the Court.” Clough also issued two
traffic citations to defendant. He testified he wrote the citations after midnight on the evening
of the accident but prior to 1:45 a.m. the following morning and before reading the warning to
motorist to defendant. Before leaving the hospital, Clough gave the citations to defendant’s
parents “because [defendant] was still being examined.” He stated he gave the citations to
defendant’s parents after he read the warning to motorist to defendant and “would have handed
all the paperwork [over] at the same time.”
¶ 14 Defendant submitted copies of the citations issued by Clough into evidence. The record
reflects the citations were for improper lane usage (citation No. 56321) and DUI (citation
56322). Under a section entitled “BOND,” the improper lane usage citation indicated Clough
obtained defendant’s drivers’ license and that bond was “POSTED ON TICKET NO. 56322.”
The DUI citation identified defendant’s bond as a “NOTICE TO APPEAR.”
¶ 15 Clough further testified that there was nothing to prevent a person from leaving
defendant’s hospital room and that no other law enforcement personnel were present while he
spoke with defendant. He testified he never drew his weapon, placed defendant under arrest,
restrained defendant in any way, or informed defendant that he was not free to leave the room.
Clough stated he had to ask permission to see defendant in his hospital room and that
“everyone consented.” However, he agreed that he did not tell defendant he was free to leave
the room.
¶ 16 Clough testified that, in connection with his investigation, he prepared an incident report
and DUI questionnaire. On the questionnaire, he noted observing that defendant’s eyes were
bloodshot and glassy and that defendant smelled of an alcoholic beverage. Further, Clough
agreed that he noted the date and time of defendant’s “arrest” as October 26, 2014, at 1:45 a.m.
¶ 17 At the hearing, Bruce Gubbins testified he was a firefighter and paramedic for the city of
Charleston, Illinois. On examination by defendant’s counsel, he stated he responded to the
crash scene and provided emergency medical services to defendant. When he arrived at the
scene, defendant was “on kind of the edge of the road” and receiving treatment from first
responders. He helped get defendant into an ambulance, checked defendant’s vital signs, and
performed multiple other assessments of defendant’s condition. Gubbins testified that all of the
assessments he performed were within normal ranges and remained within normal limits as
defendant was transported to Carle. Gubbins observed that defendant had bruising around his
left eye and Gubbins noted the presence of blood in defendant’s left eye; however, defendant
denied any head or neck pain or losing consciousness. According to Gubbins, defendant
arrived at Carle at approximately 9:43 p.m., and ambulance personnel had radioed Carle’s
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emergency department in advance to provide them with information regarding defendant’s
condition.
¶ 18 On cross-examination by the State, Gubbins testified that although his evaluations of
defendant were within the normal range, defendant was taken to the hospital due to “the
mechanism of injury.” He noted that in a serious car crash, which may have been at a high rate
of speed or involved a sudden stop, there could be nonobvious injuries that require
identification by X-rays or a physician. Gubbins noted that he observed seat belt bruising on
defendant and the previously referenced injuries to defendant’s face. Gubbins further testified
that he recalled smelling alcohol on defendant. He stated he asked defendant about his
consumption of alcohol because doctors want to know in case they have to give a patient
certain medications. According to Gubbins, defendant reported that he “had maybe five beers”
and Gubbins relayed that information to Carle’s emergency room.
¶ 19 At the hearing, defendant further presented audio recordings from the Coles County 9-1-1
center, which occurred following the motor vehicle accident. The recordings indicated the
9-1-1 center was contacted by law enforcement and asked to contact Carle’s emergency
department with a request to draw defendant’s blood. A dispatcher with the 9-1-1 center then
contacted Carle and relayed the request to its emergency department, stating as follows: “[T]he
deputies on scene are requesting that the male subject who’s being transported, you guys get a
blood draw from him.” An unidentified individual from Carle’s emergency department then
responded “[y]eah, we usually always do.”
¶ 20 At the conclusion of the hearing, the trial court took the matter under advisement. On
September 11, 2015, it entered a written order. The record reflects the court denied defendant’s
motion to suppress statements he made to Clough, finding defendant was not in custody at the
time he was questioned. Ultimately, defendant filed a motion to reconsider that decision,
which the court also denied.
¶ 21 In its written order, the trial court also denied defendant’s motion in limine to exclude
evidence of the law enforcement blood draw. The court concluded that, at the time Clough
arrived at Carle, he “was aware of multiple facts which provided him reasonable grounds to
believe *** [d]efendant had been operating his vehicle while under the influence of alcohol.”
In particular, the court noted an eyewitness reported that defendant’s vehicle crossed the
centerline and struck Camp’s vehicle head-on and first responders had reported defendant
smelled of alcohol and that he admitted consuming beers before the collision. It concluded as
follows:
“This information was sufficient to provide Clough with probable cause of a DUI
offense having been committed, and, to warrant [Clough’s] request for a DUI kit
specimen. Even assuming *** that the [hospital blood draw] evidence was wrongfully
obtained ***, or that [defendant’s] statements are suppressed ***, Clough still had a
reasonable basis to request the blood kit sample.”
The court reserved ruling on defendant’s motions in limine to exclude evidence of the hospital
blood draw and retrograde extrapolation opinion testimony.
¶ 22 On October 2, 2015, defendant filed an objection to a subpoena duces tecum, issued at the
State’s request on September 30, 2015, and directed to Carle. He asserted the State’s subpoena
was overly broad because it sought the production of “all medical records from Carle
pertaining to treatment” he received on October 25 and 26, 2014. He further argued the
subpoena “was not issued in compliance with the Health Insurance Portability and
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Accountability Act [of 1996 (42 U.S.C. § 201 et seq. (2012))] (HIPAA).” On October 8, 2015,
the trial court conducted a hearing in the matter and overruled defendant’s objection to the
subpoena “subject to the records being produced to the [c]ourt for an in camera review.”
¶ 23 On October 13, 2015, defendant filed an objection to a second subpoena duces tecum
issued at the State’s request on October 1, 2015. The subpoena was directed to Carle and
sought the production of “[a]ny and all names of personnel” that treated defendant on October
25 and 26, 2014. Again, defendant argued the State’s subpoena was overly broad and not
issued in compliance with HIPAA.
¶ 24 On October 19, 2015, the trial court entered an order, stating it had received a response to
the subpoena issued on September 30, 2015, which consisted of 144 pages of defendant’s
medical records from October 25 and 26, 2014. The court stated it had reviewed the records
and found them relevant in consideration of issues posed by the pending motions in limine.
The court ordered the records tendered to the State subject to 50 specific pages being withheld
from production.
¶ 25 On October 23, 2015, the trial court conducted a further hearing on defendant’s motion
in limine to exclude retrograde extrapolation opinion testimony. The record shows the hearing
addressed both the foundation for retrograde extrapolation evidence as well as the reliability of
such scientific evidence under the Frye standard (Frye v. United States, 293 F. 1013 (D.C. Cir.
1923)).
¶ 26 The State presented John Wetstein as an expert witness. Wetstein first testified regarding
his education, training, and work experience. He stated he was employed by ISP for a total of
27 years, working as a bench level forensic toxicologist, an assistant laboratory director, and,
for the previous 12 years, a toxicology training coordinator. As a training coordinator,
Wetstein’s primary responsibility was developing and implementing training programs in the
area of toxicology. In 1987, he obtained a bachelor’s degree in biological sciences and, in 1990
or 1991, he completed a graduate course in pharmacology. Wetstein had also completed a 12-
to 18-month ISP toxicology training program. He described the field of toxicology as relating
to the study of drugs, poisons, and metabolites and their effects on the human system. He stated
he used his training on a daily basis.
¶ 27 Wetstein further testified he had previously been accepted as an expert witness in over 100
criminal court proceedings, providing testimony on forensic toxicology, retrograde
extrapolation, and the pharmacology of drugs and abuse. He estimated he provided testimony
on retrograde extrapolation on over 20 occasions. Because his job required him “to stay
current,” Wetstein stated he subscribed to the Journal of Analytical Toxicology, which he
described as the “premier peer-reviewed publication” in the area of forensic toxicology. Based
on this testimony and over defendant’s objection, the trial court found Wetstein qualified as an
expert witness in the subject of retrograde extrapolation.
¶ 28 Wetstein described retrograde extrapolation as “a mathematical process” and “a method of
estimating an individual’s [BAC] at an earlier point in time when it’s known at a later point in
time.” He testified that retrograde extrapolation was an accepted method within the field of
toxicology for determining an individual’s BAC and “was first described in the 1930s.”
Wetstein asserted that the mathematics of a retrograde extrapolation calculation were pretty
simple and at the level of “high school algebra.”
¶ 29 At the State’s request, Wetstein reviewed a file relating to defendant and the accident that
occurred in October 2014. He reviewed documents, including a law enforcement narrative
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report, “statements made,” the hospital blood draw results, which he stated were obtained at
9:50 p.m. on the evening of the accident and demonstrated a serum BAC of 0.211, and the law
enforcement blood draw obtained at 3:25 a.m. the morning following the crash and which
showed a whole BAC of 0.071. Wetstein noted that a serum BAC cannot be directly compared
to a whole BAC, and defendant’s serum BAC had to be converted to a whole BAC for
comparison purposes. From the results of defendant’s hospital blood draw, Wetstein calculated
a whole BAC of 0.178. Following that conversion, he was able to calculate defendant’s alcohol
elimination rate—the rate at which defendant’s BAC dropped during the approximately 5½
hours between his two blood draws. Wetstein calculated defendant’s alcohol elimination rate
as 0.019. He testified the average elimination rate falls between 0.01 to 0.02 grams per deciliter
per hour.
¶ 30 Wetstein next calculated defendant’s BAC at the time of the accident, which he testified
occurred at approximately 8 p.m. He relied on information from the law enforcement narrative
report, including defendant’s height, weight, and gender. He also relied on statements in the
report that defendant consumed eight to nine beers between 5 and 7 p.m. on the day of the
accident. Using that information, Wetstein concluded defendant’s last drink was consumed by
7 p.m. Further, he opined within a reasonable degree of scientific certainty that defendant was
in the “elimination phase” at the time of the accident rather than the “absorption phase.” He
testified as follows:
“It is reasonable to assume that [defendant] was in the elimination phase at the time
of the incident. There is approximately an hour between statements about when the last
beer was consumed. There is nothing in that packet of data that would make me believe
that the individual was not in the elimination phase.
There’s been sufficient time after social drinking that it’s certainly reasonable to
make the assumption that the individual is in the elimination phase at the time in
question.”
Wetstein testified that a retrograde extrapolation calculation required that an individual be in
the elimination phase. If he reasonably believed defendant had been in the absorption phase at
the time of the accident, he would not have offered an opinion on retrograde extrapolation.
Ultimately, Wetstein calculated, within a reasonable degree of scientific certainty, that
defendant’s whole BAC at the time of the accident was 0.211 grams per deciliter.
¶ 31 Wetstein testified that he did not recall seeing any information about defendant’s eating
habits on the day of the accident in the materials he reviewed. On cross-examination, he
testified that factors relevant to absorption included “how much you eat, what you ate, when
you ate, what you’re drinking, the period of time at which you drink it, [and] how much you
drink.” He agreed that it was fair to say that “[t]he most significant effect on alcohol absorption
[was] the quantity of food substances ingested with or immediately prior to consumption of an
alcoholic beverage.” Wetstein also agreed that a large amount of food present in the stomach
would delay the absorption of alcohol. If no food is present in the stomach the absorption rate
is faster. Wetstein agreed that, as a matter of fact, he could not say when full absorption of
alcohol occurred in defendant’s case.
¶ 32 Defendant’s counsel also questioned Wetstein regarding a State of Illinois Breath Analysis
Operator Training manual. Wetstein indicated he was familiar with the manual but asserted it
was “intended for a different target audience than [his] trainees.” He did not completely agree
with the following proposition contained in the manual: “As the alcohol moves from the
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stomach or the small intestine into the bloodstream, the alcohol will be absorbed into the
bloodstream in a period of 30 to 90 minutes, depending *** on the contents of the stomach, the
size/weight of the individual[,] and the individual’s state of health.” In particular, he found it
too broad and did not take into account “the breadth of studies” in the area of alcohol
absorption. Wetstein noted that he reviewed absorption studies that mimicked social drinking
situations, in that subjects were allowed to consume alcohol at their own preferred rate over a
period of time. He testified, in those studies, “individuals [were] at or near their peak [BAC]
within 15, 20 minutes of the cessation of drinking.”
¶ 33 Wetstein further testified that alcohol elimination continued at a linear rate until it reached
under 0.02, when it would become exponential. He stated he was familiar with Dr. Kurt
Dubowski, a prominent researcher in the area of forensic toxicology. He agreed that Dr.
Dubowski had published hundreds of articles on the subject of retrograde extrapolation and
alcohol absorption and elimination. When asked whether he was aware that one of Dr.
Dubowski’s writings questioned whether elimination rates were linear, pseudolinear, or
exponential, Wetstein asserted he did not believe there was “any doubt at this point in time that
elimination rate is considered linear, particularly between 0.02 and *** 0.5.”
¶ 34 Wetstein next testified he was also familiar with Dr. A.W. Jones, who had also authored
articles on the subject of retrograde extrapolation. He stated he had read Dr. Jones’s
publications and did not doubt that Dr. Jones “characterized retrograde extrapolation as a
dubious practice, owing to the many variables and unknowns involved.” Wetstein
acknowledged there were “valid reasons for [Dr. Jones] to make such a statement” and that “it
would be very easy to overstate retrograde extrapolation if one isn’t careful to express the
limitations when they provide testimony.”
¶ 35 On examination by the trial court, Wetstein agreed that it was fundamental to his
calculation of defendant’s BAC at the time of the accident that defendant was in the
elimination phase when the accident occurred. He believed it was reasonable to find defendant
was in the elimination phase at the time of the accident and agreed that his opinion was based
on certain assumptions. He stated that, “in the absence of information,” he assumed defendant
had an empty stomach between 7 and 8 p.m.
¶ 36 On redirect examination, Wetstein testified that he believed there was a “general consensus
in the forensic toxicology community that retrograde extrapolation, when applied
appropriately, [was] quite reasonable.” He did not believe any of the factors relied upon by
Drs. Dubowski and Jones to find retrograde extrapolation “dubious” existed in the present
case.
¶ 37 On further examination, Wetstein testified that, for purposes of his calculations, he
assumed that defendant’s intake of alcohol was spread out evenly over the reported period of
time. He also assumed defendant consumed standard alcoholic drinks, which he described as
“a 12-ounce serving of [4%] alcohol beer.”
¶ 38 Following Wetstein’s testimony, defendant submitted several exhibits into evidence,
including a 2012 online article from The Champion magazine, entitled “Retrograde
Extrapolation: A Scientifically Flawed Procedure (DWI)” and authored by Dominick A.
Labianca; documents containing the credentials of both Dr. Dubowski and Dr. Jones; and the
State of Illinois Breath Analysis Operator Training manual.
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¶ 39 On November 10, 2015, the trial court entered a written order denying defendant’s motion
in limine to exclude retrograde extrapolation opinion testimony at defendant’s trial. Initially,
the court found retrograde extrapolation met the Frye standard, stating as follows:
“Wetstein testified that this calculation has been widely used in the field of forensic
toxicology for decades and it has been accepted by its members. Case law bears this
out. *** While [defendant] raises arguments challenging the reliability of such
calculations because of the number of factors required to perform the calculations, this
Court does not believe this deems the test unreliable. [Defendant] can point these out
on cross[-]examination, but the evidence itself is admissible upon showing of proper
foundation.”
The court next found Wetstein was qualified to offer opinions on the subject of retrograde
extrapolation given his education, training, and experience, and that his testimony on the
subject was admissible at defendant’s trial. It noted Wetstein determined that defendant had a
normal or average elimination rate based on two blood draws and found it significant that
Wetstein opined within a reasonable degree of scientific certainty that defendant was in the
elimination phase at the time of the accident. The court further pointed out that, although
defendant cast doubt on the accuracy of the information upon which Wetstein based his
opinions, defendant could cross-examine Wetstein on those matters to discredit the weight of
his testimony. Defendant filed a motion to reconsider the court’s denial of his motion in limine
to exclude retrograde extrapolation opinion testimony, which the court denied.
¶ 40 On December 22, 2015, defendant filed an objection to an additional subpoena
duces tecum issued at the State’s request on December 17, 2015. The subpoena was directed to
Carle’s Director of Health Information and sought “any medical records from Carle pertaining
to treatment of [defendant] on October 25 [and] 26, 2014.” Similar to his previous objections,
defendant argued the subpoena was overbroad and not issued in compliance with HIPAA.
¶ 41 On December 29, 2015, the trial court conducted a hearing on several outstanding motions
and heard evidence in connection with defendant’s motion in limine to exclude evidence of the
hospital blood draw. The State presented the testimony of Susan Freed, an Operations Manager
for the Health Information Management Department at Carle. Freed testified that her
department maintained Carle’s medical records and processed records requests. She identified
records pertaining to defendant and his treatment at Carle on October 25, 2014, and testified
they were created in the regular course of business at Carle. Freed testified that the record
showed the collection of a specimen from defendant on October 25, 2014, at 10:29 p.m. and
that the specimen was tested in Carle’s laboratory with a resulting value of 0.211. Ultimately,
the trial court allowed defendant’s medical records into evidence for purposes of the hearing
over defendant’s objection.
¶ 42 Cassandra Kocher testified she was a nurse in Carle’s emergency department. On October
25, 2014, she was involved in defendant’s medical treatment and drew blood from him that
evening. Kocher testified she was not ordered by any law enforcement agency to perform the
blood draw. Rather, she did so at the direction of the emergency room doctor, Dr. Danielle
Hans. Kocher acknowledged that defendant’s medical records reflected that she drew
defendant’s blood at 10:29 p.m. on October 25, 2014; however, she testified that the time
“could have been off by maybe five minutes.” Later, she identified 10:29 p.m. as the time
defendant’s blood was received by Carle’s laboratory for testing.
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¶ 43 Kocher further testified that she was aware defendant had been in a motor vehicle accident,
and she stated that he acknowledged consuming alcohol. At the time she drew defendant’s
blood, there were not any police officers in defendant’s room, and she had not spoken to any
police officers about defendant’s case. Kocher did not recall any reference to police officers
requesting a blood draw. Further, she testified that she questioned defendant as to the last time
he had anything to eat and “charted” that his last meal or intake of food occurred at 1400 hours,
or 2:00 p.m. on the day of the accident.
¶ 44 On cross-examination Kocher testified that she had contact with defendant from 9:50 p.m.
on October 25, 2014, until 1:30 a.m. on October 26, 2014. During that time, aside from
diagnostic testing, she provided defendant with emergency medical care in the form of pain
medication and a C collar. Diagnostic tests of defendant included an electrocardiogram of his
heart, labs, the collection of a urine sample, a visit by the surgery resident, assessments of
defendant’s vital signs, and placement on a cardiac monitor. Kocher acknowledged that
defendant was classified as “trauma green,” the least severe trauma classification, both prior to
his arrival at Carle and while in the emergency department.
¶ 45 Defendant presented the testimony of Dr. Nathan Compton, a general surgeon, and the
court accepted Dr. Compton as an expert witness in emergency medical treatment. Dr.
Compton testified that defendant’s father was his first cousin and that he was asked to review
documents with respect to defendant’s emergency medical treatment at Carle. He testified
defendant presented to Carle with stable vital signs and no obvious external injuries other than
seat belt bruising. Dr. Compton stated that many blood tests are standard for a trauma scenario;
however, he had never ordered a blood alcohol level test in such circumstances. He testified
such testing “doesn’t contribute to [the] diagnostic algorithm” and was “not going to change
what you do for a patient in an acute trauma setting.” Dr. Compton found nothing in
defendant’s condition when he was presented to Carle for treatment that necessitated a serum
alcohol test. Further, he testified that medication used in an emergency setting would not “have
any significant detrimental effect with an alcohol level.”
¶ 46 Dr. Compton testified he also reviewed documentation regarding Carle’s protocols for
trauma patients. He stated a serum alcohol test was not consistent with Carle’s protocols based
on defendant’s condition. He noted that in a “code red scenario,” involving critical trauma
injuries, obtaining a blood alcohol level was part of Carle’s protocol; however, such testing did
not “fall under” the green category, involving less critical injuries. Dr. Compton opined the
serum alcohol testing performed on defendant at Carle was not done in the regular course of
providing emergency medical treatment.
¶ 47 On cross-examination, Dr. Compton testified he consulted in a hospital emergency room
approximately every other day regarding surgical issues but did not take care of patients as
they were brought in to the emergency department. He testified that a 0.211 serum BAC was
not concerning to him in a trauma setting. However, Dr. Compton did agree that a high speed,
head-on, motor vehicle crash warranted emergency medical treatment.
¶ 48 At the conclusion of the hearing, the trial court took the matter under advisement. On
January 5, 2016, the State filed a motion to reopen or, in the alternative, for leave to
supplement evidence. It sought to introduce “additional foundational evidence” regarding the
hospital blood draw in the form of testimony from Dr. Hans. The State attached Dr. Hans’s
affidavit to its motion, in which she averred that she was defendant’s treating physician on
October 25 and 26, 2014, and ordered, among other things, a 10-panel drug urine test and an
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alcohol serum test. Dr. Hans stated the blood and urine testing was performed during the
normal course of care and treatment of defendant for diagnosis and treatment purposes and not
at the request of a police officer.
¶ 49 On January 12, 2016, the trial court conducted a hearing in the matter and denied the
State’s motion to reopen proofs and present Dr. Hans’s testimony on the basis that it was
untimely. It also denied defendant’s motion in limine to exclude evidence of the hospital blood
draw, finding the State had “sufficiently shown *** that [defendant’s blood] was not taken at
the direction of law enforcement.” The court held “[t]he State would be allowed at the time of
trial to introduce [evidence of the hospital blood draw] providing that it [could] at the time of
trial establish the proper foundation as required” by the Vehicle Code. Defendant filed a
motion to reconsider, which the court also denied.
¶ 50 On January 21, 2016, the trial court entered a supplemental ruling on defendant’s
objections to the State’s subpoenas duces tecum. It noted its previous order on October 19,
2015, regarding Carle’s records and that the State had requested that the court reconsider its
ruling. The court then ordered all remaining Carle medical records, which it had previously
ordered withheld, to be produced to the State. Defendant filed an objection to the release of
defendant’s previously withheld medical records, which the court overruled.
¶ 51 On April 7, 2016, defendant filed a motion in limine, asking the court to enter an order
providing for “the admissibility at trial of evidence of the lack of use of a seat safety belt as it
relates to the issue of proximate cause of the injuries.” Defendant argued that information he
obtained during discovery confirmed that Camp was not wearing her seat belt at the time of the
accident and indicated that the accident would not have resulted in great bodily harm to Camp
had she been wearing her seat belt. Thus, defendant maintained such evidence was “relevant to
an essential element of the charges against him.” On April 15, 2016, the State filed a motion
in limine to preclude the use of seat belt evidence, arguing that evidence of a victim’s failure to
use a seat belt was inadmissible and irrelevant.
¶ 52 On May 3, 2016, the trial court conducted a hearing on pending motions, during which it
denied defendant’s motion in limine to allow evidence of seat belt usage at trial and granted the
State’s motion in limine to exclude such evidence.
¶ 53 B. Stipulated Bench Trial
¶ 54 On June 20, 2016, defendant waived his right to a jury trial, and the parties agreed to
proceed with a stipulated bench trial on only count I, charging defendant with aggravated DUI
for driving with a BAC greater than 0.08. They further agreed that count II against defendant
and a related traffic offense would be dismissed and that defendant intended to preserve issues
and objections raised in his pretrial motions for appellate review.
¶ 55 The parties then presented stipulated facts to the trial court, which we summarize as
follows. On October 25, 2014, at approximately 8 p.m., two eyewitnesses observed
defendant’s vehicle cross the center line of a two-lane highway and strike Camp’s vehicle
head-on. Following the accident, one of the eyewitnesses observed that defendant had
extremely slurred speech. Two emergency medical technicians/paramedics who responded to
the scene, Destiny Painter and Brandon Helm, began treating defendant and observed that he
was disoriented, smelled of alcohol, had slurred speech, and exhibited a slow response to
questioning. According to Painter, defendant acknowledged that he had been drinking that
evening. Further, Helm would testify that defendant reported he had been drinking for the
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homecoming festivities at Eastern Illinois University since 10 a.m. on the day of the accident.
A photograph of the interior of defendant’s vehicle showed a single Bud Light beer can on the
floorboard.
¶ 56 The parties agreed ISP Master Sergeant Ryan Fuoss qualified as an expert in the field of
crash reconstruction. Fuoss reviewed crash data retained by the internal computers, or black
boxes, in both defendant’s and Camp’s vehicles. That data showed Camp’s vehicle had been
traveling at 55 miles per hour five seconds prior to the crash and 45 miles per hour two seconds
before the crash. The black box in Camp’s vehicle recorded lateral movement milliseconds
prior to the crash, which was consistent with an attempt by the driver to avoid a collision. Data
from the black box in defendant’s vehicle showed he was traveling approximately 68 miles per
hour two seconds before the crash. Also, defendant’s vehicle “impacted and moved little from
its original course,” and data indicated there was no attempt by defendant to apply the brakes or
swerve to avoid the accident. Fuoss opined defendant’s vehicle crossed the center line of the
two-lane highway and struck Camp’s vehicle head-on.
¶ 57 Nurse Kocher would testify she treated defendant following the accident and noticed an
odor of alcoholic beverage coming from his breath. According to Kocher, defendant admitted
that he had been drinking prior to the crash. Additionally, at the direction of Dr. Hans, Kocher
performed a blood draw on defendant “in the normal course of treatment and *** not *** at the
request of law enforcement.” Defendant’s blood was tested in Carle’s laboratory and resulted
in a serum BAC of 0.211. Further, Kocher would testify that defendant reported he had not
eaten since approximately 2 p.m. on October 25, 2014.
¶ 58 Dr. Hans treated defendant on October 25 and 26, 2014, for injuries he sustained in the
crash. She ordered a 10-panel drug screen as well as a blood-alcohol test for defendant “in the
normal course of treatment due [to] the nature of the incident that preceded his hospital visit.”
According to Dr. Hans, “no law enforcement officer or other hospital staff directed her to order
the tests,” which resulted in a serum BAC of 0.211.
¶ 59 Clough investigated the accident at the scene and then at Carle. He spoke with defendant in
his hospital room while defendant’s parents were present. According to Clough, defendant
admitted that he drank eight to nine beers at a party before the accident and crossed the center
line of the highway and struck Camp’s vehicle. Clough observed that defendant’s eyes were
bloodshot and glassy and he smelled the odor of an alcoholic beverage on defendant’s breath.
Additionally, he asked a nurse at Carle, Gabrielle Waddington, to obtain a state-requested
blood draw from defendant, and defendant consented. Due to the high-volume of emergency
room patients, Waddington was unable to perform the blood draw until approximately 3:25
a.m. on October 26, 2014, approximately seven hours after the crash. Testing on the blood
draw was performed at the ISP crime laboratory and yielded a whole BAC of 0.071.
¶ 60 The parties agreed that Wetstein, an ISP toxicologist, qualified as an expert in the field of
toxicology. He reviewed police reports and blood examinations connected with the case, as
well as a pretrial hearing transcript of Nurse Kocher’s testimony, and provided opinion
testimony on the subject of retrograde extrapolation. According to Wetstein, retrograde
extrapolation was used to determine a BAC within a reasonable degree of scientific certainty
for a previous period in time upon learning an individual’s alcohol elimination rate. In
defendant’s case, he converted defendant’s serum BAC of 0.211 to a whole BAC of 0.178.
Wetstein then calculated defendant’s elimination rate as 0.019 grams per deciliter, per hour,
using considerations of defendant’s height, weight, age, gender, and defendant’s two separate
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blood draws—the first occurring at 9:50 p.m. on October 25, 2014, and yielding a whole BAC
of 0.178, and the second occurring at 3:25 a.m. on October 26, 2014, and yielding a whole
BAC of 0.071. Based on defendant’s elimination rate, Wetstein “calculated within a
reasonable degree of scientific certainty that [defendant’s] whole [BAC] at the time of the
crash, [at] approximately 8:00 [p.m.] on October 25, 2014, was 0.211 grams per deciliter.”
According to Wetstein, statements made to Kocher at Carle showed defendant “was within the
elimination phase of alcohol processing and that retrograde extrapolation calculations were
accurate.”
¶ 61 According to the stipulation, the State’s evidence would also show that Camp was
life-flighted by helicopter to Carle after the accident and underwent significant medical care
and treatment. As a result of the accident, Camp had continuing medical problems and suffered
brain damage with long-term and lasting effects.
¶ 62 The record reflects defendant also presented a stipulation of facts to the trial court, which
was signed and agreed upon by the State. The stipulation included an offer of proof regarding
the issue of proximate cause and the use of seat belts by defendant and Camp. It also indicated
defendant’s intention to preserve various pretrial issues for appellate review.
¶ 63 Following the parties’ stipulations, the trial court found defendant guilty of aggravated
DUI as charged by the State in count I. On July 19, 2016, defendant filed a motion for entry of
a judgment of acquittal based on the alleged erroneous denials of his pretrial motions and
objections. On August 11, 2016, the court denied defendant’s motion for an acquittal and
sentenced him to 30 months’ probation. It also ordered that defendant pay restitution totaling
$35,370.13 and serve 180 days in jail with credit for 50 days previously served, 122 days
stayed, and the remainder served in four specific, 48-hour periods.
¶ 64 This appeal followed.
¶ 65 II. ANALYSIS
¶ 66 A. Motion to Suppress
¶ 67 On appeal, defendant first argues that the trial court erred by denying his motion to
suppress statements he made to Clough at Carle regarding his driving and consumption of
alcohol on day of the accident. He contends his statements were made during a custodial
interrogation and without the benefit of Miranda warnings.
¶ 68 We apply a two-part standard of review when considering a trial court’s ruling on a motion
to suppress. People v. Seiler, 406 Ill. App. 3d 352, 356, 943 N.E.2d 708, 712 (2010).
Specifically, we will reject a trial court’s factual findings only if they are against the manifest
weight of the evidence, but will review the trial court’s ultimate ruling de novo. Id. at 356-57,
943 N.E.2d at 712. “Where a defendant challenges the admissibility of a confession through a
motion to suppress, the State bears the burden of proving the confession was voluntary by a
preponderance of the evidence.” People v. Slater, 228 Ill. 2d 137, 149, 886 N.E.2d 986, 994
(2008) (citing 725 ILCS 5/114-11(d) (West 2002)).
¶ 69 In Miranda, 384 U.S. at 444, the Supreme Court held that a defendant’s statements are
inadmissible when elicited during a custodial interrogation unless the State “demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination.” The
term “custodial interrogation” means “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
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significant way.” Id. Whether a person is in custody and subject to Miranda warnings requires
consideration of the circumstances surrounding the interrogation and whether, under those
circumstances, a reasonable person would have felt at liberty to terminate the interrogation and
leave. People v. Wright, 2011 IL App (4th) 100047, ¶ 28, 960 N.E.2d 56. “With respect to the
latter inquiry, the accepted test is what a reasonable person, innocent of any crime, would have
thought had he or she been in the defendant’s shoes.” People v. Braggs, 209 Ill. 2d 492, 506,
810 N.E.2d 472, 482 (2003).
¶ 70 Several factors are relevant to determining whether a defendant was in custody, including:
“(1) the location, time, length, mood, and mode of the questioning; (2) the number of
police officers present during the interrogation; (3) the presence or absence of the
individual’s family and friends; (4) any indicia of a formal arrest procedure, such as the
show of weapons or force, physical restraint, booking, or fingerprinting; (5) how the
individual arrived at the place of questioning; and (6) the age, intelligence, and mental
makeup of the accused.” Wright, 2011 IL App (4th) 100047, ¶ 29, 960 N.E.2d 56
(citing Slater, 228 Ill. 2d at 150, 886 N.E.2d at 995).
See also Braggs, 209 Ill. 2d at 506, 810 N.E.2d at 482. Further, “[a]lthough it is generally
irrelevant that the interrogating officer subjectively viewed the individual under questioning as
a suspect, the officer’s beliefs, if conveyed by word or deed to the individual being questioned,
are relevant to the extent that they would affect how a reasonable person in the position of the
individual being questioned would have gauged the breadth of his freedom of action.”
(Emphasis in original.) Braggs, 209 Ill. 2d at 506-07, 810 N.E.2d at 482.
¶ 71 Here, defendant argues his statements to Clough are inadmissible because prior to
questioning, Clough informed defendant that he intended to charge him with DUI, read him the
warning to motorist, and issued him a DUI citation. He maintains such circumstances resulted
in a “post-arrest interrogation,” which was custodial for Miranda purposes, and rendered
consideration of any other circumstances or factors unnecessary. We disagree with defendant’s
assertions on appeal. Although the circumstances he notes weigh in favor of finding that he
was in custody for Miranda purposes, they are not dispositive nor do they preclude or prohibit
the consideration of other relevant circumstances.
¶ 72 Here, defendant was transported to Carle by ambulance, and Clough’s questioning
occurred in defendant’s hospital room, a neutral setting. See People v. Vasquez, 393 Ill. App.
3d 185, 190-91, 913 N.E.2d 60, 66 (2009) (holding a hospital room was a neutral setting and
that a suspect questioned in familiar or neutral surroundings “does not face the same pressures
as one questioned in a police-dominated atmosphere”). Also present in the room were
defendant’s parents and, at times, hospital personnel. Clough testified he asked permission to
see defendant in his hospital room and that “everyone consented.” No other law enforcement
personnel were present. Although Clough informed defendant that he intended to charge him
with DUI, read to him the Warning to Motorist that contained warnings pertaining to a DUI
arrest, and issued defendant a DUI citation, the record reflects there was no show of weapons
or force and defendant was not fingerprinted, booked, handcuffed, or restrained in any way.
The citations issued to defendant were uniform traffic citations. Notably, the DUI citation
reflects defendant was provided with a “Notice to Appear” rather than required to post a cash
bond, indicating he was not taken into custody by Clough and not being deprived of his
freedom of action. The citations were also provided to defendant’s parents rather than
defendant.
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¶ 73 Additionally, in examining whether defendant was in custody for Miranda purposes, the
trial court determined “there was nothing significant about the time or length [of the
questioning] which would otherwise create a custodial event. In fact, the interaction between
*** Clough and [defendant] seemed to have been relatively minimal that day, primarily
because of the treatment [defendant] was receiving.” The court also found nothing about
defendant’s age or mental makeup that would have rendered him any more susceptible to
construe his interaction with Clough as a custodial circumstance than any other person. These
factual findings were not against the manifest weight of the evidence.
¶ 74 Under the facts presented, we find the majority of relevant factors weigh in favor of finding
defendant was not in custody for purposes of Miranda. Moreover, we find the cases relied
upon by defendant to support his position are significantly distinguishable from the present
case.
¶ 75 Defendant first cites Berkemer v. McCarty, 468 U.S. 420, 423 (1984), wherein a law
enforcement officer conducted a traffic stop on a vehicle driven by the defendant after he
observed the defendant’s vehicle weaving in and out of its lane of travel. During the traffic
stop, the defendant failed sobriety tests and admitted to using intoxicants. Id. He was then
“formally placed *** under arrest” and transported by patrol car to the county jail where he
made additional incriminating statements when questioned by police. Id. at 423-24. At issue on
appeal, was the admissibility of the defendant’s pre- and postarrest statements to the officer,
both of which were made without the benefit of Miranda warnings. Id. at 422-23. However,
with respect to the defendant’s postarrest statements, there was no dispute that they were made
during a custodial interrogation; rather, the issue presented to the Supreme Court was whether
an exception to Miranda should apply “[w]hen the police arrest a person for allegedly
committing a misdemeanor traffic offense and then ask him questions without telling him his
constitutional rights.” Id. at 429. Ultimately, the Court concluded no such exception should
apply. Id.
¶ 76 Berkemer involves circumstances where the defendant was “formally” arrested and
questioned after having clearly been taken into custody by police. It simply does not address
the circumstances presented by this case.
¶ 77 Defendant also cites People v. Bahnfleth, 233 Ill. App. 3d 289, 291, 599 N.E.2d 16, 18
(1992), which concerned the timing of a defendant’s DUI arrest and refusal of chemical testing
for statutory summary suspension purposes. In that case, the defendant was transported to the
police station by squad car following a traffic accident and failed field sobriety tests. Id. at 291,
599 N.E.2d at 17. After failing those tests, a police officer informed the defendant “that they
would have to charge him with DUI.” Id. at 292, 599 N.E.2d at 18. On review, the Third
District determined the defendant was under arrest at that point for purposes of summary
suspension proceedings, finding “a reasonable person in the defendant’s position would have
concluded that he was not free to leave.” Id.
¶ 78 Here, not only is Bahnfleth factually dissimilar from the present case, it is also
distinguishable on the basis that it did not address or concern the issue of Miranda warnings
and custodial interrogations. Although we do not disagree with the holding in Bahnfleth, we
find it has limited application to the issues and circumstances presented here.
¶ 79 Further, like the trial court, we find the facts in this case are more similar to the
circumstances presented in Vasquez, 393 Ill. App. 3d at 186, 913 N.E.2d at 62, which
concerned the admissibility of statements a DUI defendant made to police while in the hospital
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following a motor vehicle accident. There, police officers questioned the defendant in her
hospital room several hours after the accident and after the defendant “had been ticketed for
DUI and released on her own recognizance.” Id. at 187, 913 N.E.2d at 63. After considering
the factors relevant to determining whether an individual was in custody for Miranda
purposes, the Second District determined the defendant in the case before it was not in custody
and, thus, her statements to police were admissible at trial. Id. at 190, 913 N.E.2d at 65.
¶ 80 Similarly, in this case, we find the relevant factors weigh in favor of finding a reasonable
person in defendant’s position would have felt free to terminate Clough’s questioning. As a
result, defendant was not in custody when questioned by Clough in his hospital room, and
Miranda warnings were not required. The trial court committed no error in denying
defendant’s motion to suppress and finding his statements to Clough admissible at trial.
¶ 81 B. Admissibility of the Hospital Blood Draw
¶ 82 On appeal, defendant next argues that the trial court erred in denying his motion in limine
to bar evidence of his hospital blood draw. He maintains the State failed to meet the
foundational requirements for the admissibility of such evidence as set forth in section
11-501.4 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.4 (West 2012)).
¶ 83 On review, the trial court’s ruling on a motion in limine will be upheld absent an abuse of
discretion. People v. Kirchner, 194 Ill. 2d 502, 539, 743 N.E.2d 94, 113-14 (2000). However,
“[t]o the extent that defendant’s argument implicates the requirements of section 11-501.4, it
presents a question of statutory interpretation, which we review de novo.” People v. Olsen, 388
Ill. App. 3d 704, 709, 903 N.E.2d 778, 782 (2009) (citing People v. Caballero, 228 Ill. 2d 79,
82, 885 N.E.2d 1044, 1046 (2008)). “The primary rule of statutory construction is to ascertain
and give effect to the legislature’s intent, which is best determined by the statutory language’s
plain and ordinary meaning.” Id. at 710, 903 N.E.2d at 782-83. “We will not depart from the
statute’s plain language by reading into the statute exceptions, limitations, or conditions that it
does not express.” Id. at 710, 903 N.E.2d at 783. Finally, we accept the trial court’s factual
findings unless they are against the manifest weight of the evidence. Id. at 709, 903 N.E.2d at
782.
¶ 84 Section 11-501.4(a) of the Vehicle Code provides that, in DUI prosecutions, blood tests
performed for the purpose of determining alcohol content, which are “conducted upon persons
receiving medical treatment in a hospital emergency room are admissible in evidence as a
business record exception to the hearsay rule” when “the chemical tests performed upon an
individual’s blood *** were ordered in the regular course of providing emergency medical
treatment and not at the request of law enforcement authorities.” 625 ILCS 5/11-501.4(a)(1)
(West 2012). The testing must also be “performed by the laboratory routinely used by the
hospital.” 625 ILCS 5/11-501.4(a)(2) (West 2012). “The purpose of section 11-501.4 is to
insure the reliability and integrity of the test results conducted on a person charged with
[DUI].” People v. Lach, 302 Ill. App. 3d 587, 594, 707 N.E.2d 144, 149 (1998). “By
complying with the statute, the State demonstrates that reasonably protective measures have
been taken to ensure that the blood taken from [the] defendant and tested in the hospital lab
was not changed or substituted.” Id.
¶ 85 Initially, defendant argues that, under section 11-501.4(a), a chemical test is inadmissible
unless the State shows that it was ordered in accordance “with an established medical rule.” He
maintains “the statutory phrase ‘the regular course of providing emergency medical treatment’
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relates to a uniform standard applicable to emergency medical providers throughout the State
of Illinois when ‘providing emergency medical treatment.’ ” Further, defendant maintains the
evidence in his case showed the chemical testing at issue was inconsistent with Carle’s hospital
protocol, given the severity of his injuries, and thus, evidence of the testing was inadmissible at
his trial. We disagree.
¶ 86 Here, evidence presented to the trial court established defendant was taken to Carle’s
emergency department following the motor vehicle accident and provided treatment by Carle’s
emergency department personnel. Nurse Kocher testified she performed a blood draw on
defendant shortly following his arrival at Carle at the direction of Dr. Hans, the emergency
room doctor, rather than any law enforcement agency. According to the stipulated evidence at
defendant’s bench trial, Dr. Hans ordered the blood draw while treating defendant and “due to
the nature of the incident that preceded his hospital visit,” rather than at the request of law
enforcement. Further, chemical testing on defendant’s blood was performed in Carle’s
laboratory. We find such evidence was sufficient to meet the statutory requirements. See
Olsen, 388 Ill. App. 3d at 710, 903 N.E.2d at 783 (rejecting an argument that section 11-501.4
required the testimony of a “ ‘physician, nurse, or other person with actual knowledge of
routine emergency room procedures’ ” to establish a foundation for evidence of a hospital
chemical analysis and finding the testimony of police officer and the manger of a hospital’s
medical records sufficient under the circumstances).
¶ 87 Further, we reject defendant’s contention that the statute also required the State to present
evidence of an established hospital protocol to support the chemical testing. Rather, evidence
that chemical testing was ordered by an emergency department doctor while providing
treatment to an individual in a hospital emergency room is sufficient to meet statutory
requirements. While evidence of a hospital’s standard protocols or general practices may also
support the admission of chemical tests under section 11-501.4 (People v. Hutchison, 2013 IL
App (1st) 102332, ¶ 20, 1 N.E.3d 600), the lack of such evidence does not warrant the
exclusion of the chemical test. First, the language of the statute contains no such explicit
requirement. Second, defendant’s argument fails to take into account the exercise of
independent judgment by an individual’s treating physician. We find section 11-501.4
contemplates both situations when chemical testing is ordered pursuant to an established
protocol or general practice and when the testing is ordered outside of such standard
procedures but based on the independent judgment of the defendant’s doctor while providing
emergency medical treatment. Moreover such an interpretation is consistent with the purpose
of section 11-501.4 to insure the reliability and integrity of testing results.
¶ 88 With respect to the hospital blood draw, defendant also argues his condition on October 25,
2014, was not serious and did not warrant emergency medical treatment. He maintains he was
provided only non-emergency medical services. Again, we disagree. As stated, following the
accident, defendant was treated in Carle’s emergency department by emergency department
personnel. Although his injuries were not severe, admissibility under section 11-501.4 is not
based on the severity of injuries sustained or the extent of the emergency medical care
received. We find it was enough under the statute that defendant’s blood draw, taken for the
purpose of chemical testing, was performed while he was receiving treatment in Carle’s
emergency room and from its emergency medical personnel.
¶ 89 Finally, defendant also argues that he presented evidence indicating the hospital blood
draw was performed at the request of law enforcement. He cites evidence of the Coles County
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9-1-1 center’s recordings, showing that a dispatcher contacted Carle’s emergency department
to report that “deputies on scene” requested a blood draw on defendant. In making its ruling,
the trial court addressed such evidence and determined as follows:
“There is no indication who the receiving party at the Carle emergency department was
of that phone call. I believe if I recall from the transcript itself, the person did indicate,
[‘]yeah, we always do that[’] or words to those effect. At the emergency department
*** when the blood draw began we know that [defendant] had been involved in a
significant motor vehicle accident, potential significant injuries both visible and not
patent but internal. We know that [defendant] reported to have consumed alcohol. We
also know or can conclude from the testimony that *** Clough was not yet present at
Carle, and Nurse Kocher affirmatively indicated that she had not been contacted by
Clough, and she had not been directed by law enforcement at the time of the first draw
to take it.
At this time the Court has considered all of the evidence and is going to find that the
State has sufficiently shown for the purpose of the [m]otion in [l]imine that the tests
were ordered in the regular course and not at the request of law enforcement.”
¶ 90 Here, the trial court’s factual findings are supported by the record and are not against the
manifest weight of the evidence. While the evidence defendant presented indicated law
enforcement desired a blood draw, the request was communicated to an unknown individual
within Carle’s emergency department. The evidence did not show that the request was then
communicated to the individuals providing defendant’s treatment or that the test was ordered
pursuant to that request.
¶ 91 Additionally, as stated, the evidence at defendant’s stipulated bench trial included a
statement that Dr. Hans ordered defendant’s blood-alcohol test in the normal course of treating
defendant and “due to the nature of the incident that preceded his hospital visit.” Moreover, she
denied that she was directed to order the test by a law enforcement officer or hospital staff
member. Such evidence supports the admissibility of defendant’s hospital blood draw pursuant
to section 11-501.4. On appeal, defendant argues that Dr. Hans’s testimony was improperly
obtained pursuant to the rule set forth in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d
581, 588, 499 N.E.2d 952, 957 (1986), which bars ex parte communications between an
individual’s treating physician and his legal adversary. However, to the extent he argues Dr.
Hans’s testimony should not have been admissible at trial, we find the issue forfeited.
¶ 92 During the underlying proceedings, the State moved to reopen or supplement the evidence
it presented in connection with defendant’s motion in limine to bar evidence of the hospital
blood draw with either the affidavit or testimony of Dr. Hans. Defendant filed a written
response asking the court to deny the State’s motion to reopen or supplement on the basis that
its request was untimely and its communications with Dr. Hans violated Petrillo. Ultimately,
the court denied the State’s motion on the basis of defendant’s timeliness argument.
Importantly, the record fails to reflect defendant raised the Petrillo issue in any other context.
In particular, he never sought to bar Dr. Hans’s testimony at trial as a sanction for a Petrillo
violation. Such a request was never presented to the trial court and, therefore, the issue has
been forfeited for purposes of appeal. People v. Valdez, 2016 IL 119860, ¶ 33, 67 N.E.3d 233
(holding issues not raised in the circuit court are forfeited on appeal).
¶ 93 Here, evidence of defendant’s hospital blood draw was admissible under section 11-501.4
of the Vehicle Code. Further, the trial court committed no error in denying defendant’s motion
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in limine to exclude that evidence.
¶ 94 C. Admissibility of the Law Enforcement Blood Draw
¶ 95 On appeal, defendant also challenges evidence of the law enforcement blood draw
performed on him at Clough’s request, which demonstrated a whole BAC of 0.071. He argues
that Clough lacked probable cause to charge him with a DUI offense and, therefore, also lacked
authority to request that defendant submit to law enforcement chemical testing of his blood
under section 11-501.1 of the Vehicle Code (625 ILCS 5/11-501.1 (West 2012)). Defendant
maintains the trial court erred by denying his motion in limine to bar the State from presenting
such evidence at his trial.
¶ 96 Section 11-501.1(a) of the Vehicle Code (625 ILCS 5/11-501.1(a) (West 2012)), also
known as the implied-consent statute, provides “that a defendant arrested for DUI is deemed to
have given consent to chemical tests if he was driving upon the public highways.” People v.
Hostetter, 384 Ill. App. 3d 700, 713, 893 N.E.2d 313, 324 (2008). That section expressly states
as follows:
“Any person who drives or is in actual physical control of a motor vehicle upon the
public highways of this State shall be deemed to have given consent *** to a chemical
test or tests of blood *** for the purpose of determining the content of alcohol *** in
the person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic
Ticket, for [a DUI] offense ***. If a law enforcement officer has probable cause to
believe the person was under the influence of alcohol ***, the law enforcement officer
shall request a chemical test or tests which shall be administered at the direction of the
arresting officer.” 625 ILCS 5/11-501.1(a) (West 2012).
¶ 97 “Probable cause to arrest exists when the facts known to the officer at the time of the arrest
are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a
crime.” People v. Wear, 229 Ill. 2d 545, 563, 893 N.E.2d 631, 642 (2008). “[T]he existence of
probable cause depends upon the totality of the circumstances at the time of the arrest.” Id. at
564, 893 N.E.2d at 642. Further, an arresting officer must have more than a mere suspicion but
is not required to have evidence sufficient to convict. People v. Fonner, 385 Ill. App. 3d 531,
540, 898 N.E.2d 646, 654 (2008).
¶ 98 Additionally, a two-part standard of review applies to review of probable-cause
determinations. Id. “Under that standard, a reviewing court gives deference to the trial court’s
findings of historical fact but prescribes a de novo standard of review for the ultimate
determination of probable cause.” Id.
¶ 99 Here, we agree with the trial court that Clough had probable cause to believe defendant had
driven under the influence of alcohol. As noted by the court, Clough investigated the motor
vehicle accident and determined a vehicle driven by defendant crossed the center line and
struck Camp’s vehicle head-on. Through his investigation, Clough learned the incident
involved “possibly a DUI investigation.” We note Gubbins, a first responder on the scene,
testified at the hearing on defendant’s motion that he observed the defendant’s eyes as being
bloodshot and glassy and that defendant smelled of an alcoholic beverage. Further, Clough
testified he had been given information that led him to believe defendant had been drinking or
was under the influence of alcohol prior to Clough seeing defendant in the hospital. Moreover,
when Clough observed defendant, he also noticed that defendant had bloodshot and glassy
eyes and smelled of an alcoholic beverage.
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¶ 100 Finally, although not relied upon by the trial court, we find evidence of the results of the
hospital blood draw would also have provided Clough with reasonable grounds to believe
defendant committed a DUI offense. Upon his arrival at Carle and prior to seeing defendant,
Clough inquired about the results of hospital lab work, and a nurse provided him with the
results of defendant’s hospital blood draw. Those results showed defendant had a serum BAC
of 0.211 shortly following his arrival at Carle. As discussed, the results of a blood-alcohol test
“conducted upon persons receiving medical treatment in a hospital emergency room for
injuries resulting from a motor vehicle accident” must be disclosed to law enforcement upon
request and are not subject to physician-patient confidentiality requirements. 625 ILCS
5/11-501.4-1 (West 2012). Contrary to defendant’s arguments and for the reasons set forth
above, the record fails to reflect defendant’s hospital blood draw was wrongfully obtained or
that it failed to meet the admissibility requirements of section 11-501.4.
¶ 101 Here, the record supports a finding that Clough had probable cause to issue defendant a
DUI citation and request a blood draw. Thus, defendant’s law enforcement blood draw was
admissible in evidence at trial and the trial court committed no error.
¶ 102 D. Retrograde Extrapolation Evidence
¶ 103 Defendant next argues that the trial court erred in denying his motion in limine to bar the
State from presenting retrograde extrapolation evidence at his trial. He contends (1) the State
failed to establish that retrograde extrapolation principles and methodology meet the standard
for the admissibility of scientific evidence in Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), (2) Wetstein was not qualified to offer expert opinion testimony on retrograde
extrapolation, and (3) the State failed to establish a sufficient foundation for the admission of
retrograde extrapolation evidence at his trial. For the reasons that follow, we disagree with
each of defendant’s arguments.
¶ 104 1. Frye Standard
¶ 105 “In Illinois, the admission of scientific evidence is governed by the Frye standard,” which
has been codified in the Illinois Rules of Evidence. In re Detention of New, 2014 IL 116306,
¶ 25, 21 N.E.3d 406 (citing In re Commitment of Simons, 213 Ill. 2d 523, 529, 821 N.E.2d
1184, 1188 (2004), citing Frye, 293 F. 1013). Specifically, Illinois Rules of Evidence provide
that “[w]here an expert witness testifies to an opinion based on a new or novel scientific
methodology or principle, the proponent of the opinion has the burden of showing the
methodology or scientific principle on which the opinion is based is sufficiently established to
have gained general acceptance in the particular field in which it belongs.” Ill. R. Evid. 702
(eff. Jan. 1, 2011). Where scientific evidence has a history of legal challenges regarding its
admissibility and has not been ruled upon in a Frye hearing in Illinois, the evidence is
considered novel for Frye purposes. People v. McKown, 226 Ill. 2d 245, 258, 875 N.E.2d 1029,
1037 (2007) (hereinafter McKown I) (finding horizontal gaze nystagmus test evidence was
novel under Frye despite its use by police officers for many years).
¶ 106 “A court may determine the general acceptance of a scientific principle or methodology in
either of two ways: (1) based on the results of a Frye hearing; or (2) by taking judicial notice of
unequivocal and undisputed prior judicial decisions or technical writings on the subject.” Id. at
254, 875 N.E.2d at 1034. “General acceptance does not require unanimity, consensus, or even
a majority, but does require something more than a scientific principle, technique or
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methodology that is experimental or of dubious validity.” Detention of New, 2014 IL 116306,
¶ 39, 21 N.E.3d 406.
¶ 107 At a Frye hearing, the State, as the proponent of scientific evidence, has the burden of
demonstrating that it is generally accepted in the relevant scientific community. People v.
McKown, 236 Ill. 2d 278, 294, 924 N.E.2d 941, 950 (2010) (hereinafter McKown II). A trial
court’s determination regarding either the necessity of a Frye hearing or whether there is
general acceptance in the relevant scientific community is subject to de novo review.
Detention of New, 2014 IL 116306, ¶ 26, 21 N.E.3d 406. In reviewing the trial court’s
determination “we may ‘consider not only the trial court record but also, where appropriate,
sources outside the record, including legal and scientific articles, as well as court opinions
from other jurisdictions.’ ” McKown II, 236 Ill. 2d at 295, 924 N.E.2d at 950-51 (quoting
Simons, 213 Ill. 2d at 531, 821 N.E.2d at 1189).
¶ 108 Here, Wetstein testified for the State that retrograde extrapolation was an accepted method
of determining BAC in the field of toxicology. Defendant contends Wetstein, an ISP
employee, was not an objective witness and that “the question of general acceptance must be
determined from the testimony of experts and the literature in these scientific fields, and not
from the testimony or writings of law enforcement officers or agencies” (Id. at 300, 924 N.E.2d
at 953). However, the record reflects Wetstein was not a law enforcement officer, but a trained
toxicologist with over 27 years of work experience in his field. Further, his testimony reflects
he based his opinions on his training and experience, as well as his review of various studies
and articles on retrograde extrapolation.
¶ 109 Moreover, as noted by the trial court, relevant case authority supports Wetstein’s opinions.
Although no Illinois case has expressly resolved the issue of the admissibility of retrograde
extrapolation evidence under Frye, several appellate court decision favorably reference its use.
See People v. Floyd, 2014 IL App (2d) 120507, ¶ 25, 11 N.E.3d 335 (recognizing that
retrograde extrapolation has its place in DUI prosecutions); People v. Ikerman, 2012 IL App
(5th) 110299, ¶ 38, 973 N.E.2d 1008 (stating “evidence regarding retrograde extrapolation is
admissible as long as it is presented by a qualified expert”); Petraski v. Thedos, 382 Ill. App.
3d 22, 31-32, 887 N.E.2d 24, 34 (2008) (finding expert opinion testimony estimating BAC
prior to a blood draw admissible in evidence); People v. Latto, 304 Ill. App. 3d 791, 803, 710
N.E.2d 72, 81 (1999) (finding no error in the admission of retrograde extrapolation evidence);
Cuellar v. Hout, 168 Ill. App. 3d 416, 421, 522 N.E.2d 322, 325 (1998) (finding retrograde
extrapolation evidence admissible); People v. Johnigk, 111 Ill. App. 3d 941, 944, 444 N.E.2d
739, 741 (1982) (finding evidence that estimated the defendant’s BAC level at a time earlier
than when the defendant’s blood was drawn was admissible).
¶ 110 Courts in other jurisdictions have also found retrograde extrapolation evidence admissible
and reliable. See State v. Baucum, 343 P.3d 235, 242 (Or. Ct. App. 2015) (concluding “that
retrograde extrapolation—the mathematical process of plotting backwards a defendant’s BAC
on a BAC curve when given sufficient facts to do so—is generally accepted in the relevant
scientific community and in the courts”); State ex rel. Montgomery v. Miller, 321 P.3d 454,
469 (Ariz. Ct. App. 2014) (holding retrograde extrapolation was “generally considered to be a
reliable scientific discipline”); Commonwealth v. Senior, 744 N.E.2d 614, 620-21 (Mass.
2001) (holding evidence of retrograde extrapolation was sufficiently reliable); State v. Jensen,
482 N.W.2d 238, 239 (Minn. Ct. App. 1992) (holding that the principles underlying retrograde
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extrapolation were not emerging or novel and that expert testimony on the subject was
admissible).
¶ 111 We note defendant has not directed us to any case excluding retrograde extrapolation
evidence on the basis that it lacks general acceptance in the relevant scientific community.
Rather, cases excluding such evidence are largely based on foundational concerns, which
would result in unfair prejudice to the defendant if the evidence was admitted at trial. See
Floyd, 2014 IL App (2d) 120507, ¶ 20, 11 N.E.3d 335 (“A retrograde extrapolation calculation
based on a single breath test, and when many of the factors necessary to determine whether the
defendant was in the elimination phase are unknown, is insufficient to provide a reliable
calculation and invites the jury to determine guilt on an improper basis.”). Further, defendant
presented a single article that was critical of the subject. As indicated, general acceptance does
not mean total or unanimous acceptance. Thus, given the evidence presented in the underlying
proceedings and our review of relevant case authority, we find retrograde extrapolation
evidence as a method of estimating an individual’s BAC has general acceptance in its relevant
scientific community.
¶ 112 2. Expert Witness Qualifications
¶ 113 “ ‘In Illinois, generally, an individual will be permitted to testify as an expert if his
experience and qualifications afford him knowledge which is not common to lay persons and
where such testimony will aid the trier of fact in reaching its conclusion.’ ” People v. Lerma,
2016 IL 118496, ¶ 23, 47 N.E.3d 985 (quoting People v. Enis, 139 Ill. 2d 264, 288, 564 N.E.2d
1155, 1164 (1990)). “There are no precise requirements regarding experience, education,
scientific study, or training” of a proposed expert. People v. Lovejoy, 235 Ill. 2d 97, 125, 919
N.E.2d 843, 859 (2009).
¶ 114 “The decision to qualify a witness as an expert rests within the sound discretion of the trial
court.” Id. at 125, 919 N.E.2d at 858. An abuse of discretion occurs “only where the trial
court’s decision is arbitrary, fanciful, or unreasonable, such that no reasonable person would
take the view adopted by the trial court.” Id.
¶ 115 On appeal, defendant relies on the Fifth District’s decision in People v. Barham, 337 Ill.
App. 3d 1121, 788 N.E.2d 297 (2003), to support his position that Wetstein was not qualified
to render opinions on retrograde extrapolation. There, the State’s proffered witness, Cathy
Anderson, had a bachelor’s degree in zoology, was taking graduate courses in chemistry and
biology at the time of trial, had completed an ISP toxicology training program, was certified to
conduct alcohol and drug testing on biological samples, and was employed by ISP to test blood
and other bodily fluids for the presence of alcohol and drugs. Id. at 1132, 788 N.E.2d at 306.
Ultimately, the Fifth District found “Anderson was qualified to test blood samples for the
presence of alcohol and other substances, to testify about the procedures used during those
tests, and to testify to the results,” but that no evidence indicated she “was qualified to explain
retrograde extrapolation or to render any opinion regarding the rate of elimination of alcohol
from the human system.” Id. at 1133-34, 788 N.E.2d at 307. In so holding, it specifically
determined no evidence was presented showing Anderson understood the process of alcohol
elimination or relevant factors for consideration. Id. at 1134, 788 N.E.2d at 307-08.
¶ 116 We find Barham distinguishable from the present case. Here, evidence showed Wetstein
worked as a toxicologist for ISP for a total of 27 years in various capacities. His most recent
position involved developing and implementing training programs in the area of toxicology.
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Wetstein held a bachelor’s degree in biological sciences, completed a graduate course in
pharmacology, and completed an ISP toxicology training program. He described the field of
toxicology as relating to the study of drugs, poisons, and metabolites and their effects on the
human system and stated he utilized his training on a daily basis. Additionally, Wetstein
testified he had been accepted as an expert witness in over 100 criminal court proceedings,
providing testimony on forensic toxicology, retrograde extrapolation, and the pharmacology of
drugs and abuse. To stay current in his field, he subscribed to the Journal of Analytical
Toxicology, which he described as the “premier peer-reviewed publication” in the area of
forensic toxicology. Moreover, unlike Anderson’s testimony in Barham, Wetstein’s testimony
in the underlying proceedings established his knowledge of and familiarity with the topics of
alcohol absorption and elimination.
¶ 117 In this instance, the trial court determined that Wetstein—by his education, training, and
experience—was qualified to render opinions on the topic of retrograde extrapolation. The
record fails to reflect the court abused its discretion.
¶ 118 3. Foundation for Retrograde Extrapolation Testimony
¶ 119 “To lay an adequate foundation for expert testimony, it must be shown that the facts, data,
or opinions relied upon by the expert are of a type reasonably relied upon by experts in that
particular field in forming opinions or inferences.” People v. Lind, 307 Ill. App. 3d 727, 737,
718 N.E.2d 316, 323 (1999). Also, “[i]n addressing the admission of expert testimony, the trial
court should balance the probative value of the evidence against its prejudicial effect to
determine the reliability of the testimony.” Lerma, 2016 IL 118496, ¶ 23, 47 N.E.3d 985. We
review the trial court’s determinations for an abuse of discretion. Lind, 307 Ill. App. 3d at 737,
718 N.E.2d at 323; Lerma, 2016 IL 118496, ¶ 23, 47 N.E.3d 985.
¶ 120 Calculations based on retrograde extrapolation principles require information on the rates
at which a human body absorbs and excretes alcohol. Floyd, 2014 IL App (2d) 120507, ¶ 16,
11 N.E.3d 335 (citing State v. Eighth Judicial District Court, 267 P.3d 777, 780 (Nev. 2011)).
“[R]ates can vary depending on a number of factors, including the elapsed time between a
person’s last drink and the blood test; the amount and type of alcohol consumed; the time
period during which the alcohol was consumed; and personal characteristics such as age,
weight, alcohol tolerance, and food intake.” Id. Further, a reliable retrograde extrapolation
calculation requires consideration of several factors, including the following:
“(1) gender; (2) weight; (3) age; (4) height; and (5) mental state; (6) the type and
amount of food in the stomach; (7) the type and amount of alcohol consumed; (8) the
time the last alcoholic drink was consumed; (9) the subject’s drinking pattern at the
relevant time; (10) the elapsed time between the first drink and the last drink
consumed; (11) the elapsed time between the last drink and the blood draws; (12) the
number of samples taken; (13) the elapsed time between the offense and the blood
draws; (14) the average alcohol absorption rate; and (15) the average elimination rate.”
Id. ¶ 17.
¶ 121 Additionally, “not every factor must be known to construct a reliable extrapolation; rather,
the various factors must be balanced.” Id. ¶ 25. “Whether the State produces a reliable
extrapolation will depend on the specific circumstances of each case.” Id.
¶ 122 On appeal, defendant argues Wetstein lacked an adequate foundation for his retrograde
extrapolation calculations, as he made too many assumptions when forming his opinions. To
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support his contentions, he cites Floyd, wherein the State also presented Wetstein as an expert
witness on the subject of retrograde extrapolation. Id. ¶ 9. There, Wetstein provided an
estimate of the DUI defendant’s BAC based on a single breath test. Id. In the course of
providing his calculations, “Wetstein acknowledged that he did not know what [the] defendant
had eaten that night, how long she had been drinking, or what type of alcohol she consumed.”
Id. ¶ 11.
¶ 123 On review, the defendant challenged Wetstein’s testimony on the basis “that, because
Wetstein did not have information necessary to perform a retrograde extrapolation calculation
with any degree of certainty, the prejudicial effect of his testimony outweighed its probative
value.” Id. ¶ 13. The Second District agreed with the defendant’s argument, finding “[a]
retrograde extrapolation calculation based on a single breath test, and when many of the factors
necessary to determine whether the defendant was in the elimination phase are unknown, is
insufficient to provide a reliable calculation and invites the jury to determine guilt on an
improper basis.” Id. ¶ 20. It found Wetstein’s testimony was relevant but unreliable because
too many of the factors relevant to a retrograde extrapolation calculation were unknown. Id.
¶ 23. The court noted Wetstein’s calculation was “premised on the assumption that the
defendant was in the elimination phase, without consideration of other relevant factors and
without additional breath tests.” Id. In particular, the evidence showed Wetstein “did not recall
when [the] defendant started and stopped drinking” and his testimony failed to show he
considered any relevant information before assuming that the defendant was in the alcohol
elimination phase when her breath test was administered. Id.
¶ 124 Here, the trial court found Floyd factually distinguishable, and we agree. In this case,
Wetstein’s calculations were based on two blood draws rather than the single breath test at
issue in Floyd. From those tests, taken approximately five and a half hours apart, Wetstein was
able to determine defendant’s actual elimination rate. Wetstein also had information in the
materials provided to him regarding defendant’s personal characteristics, including his height,
weight, and gender. Further, he had information as to when the motor vehicle accident
occurred and that defendant reported drinking eight to nine beers between 5 and 7 p.m. prior to
the accident. Although Wetstein acknowledged that he made the assumption that defendant
was drinking on an empty stomach, his conclusion that defendant was in the elimination phase
at the time of the accident was otherwise based on relevant facts presented to him, including
what defendant had been drinking and the time of his last drink.
¶ 125 Further, we agree with the trial court that Wetstein’s opinions were not so flawed as to be
inadmissible simply because he made certain assumptions or because defendant could cast
doubt on the accuracy of information he relied upon. As determined by the trial court, such
matters are subject to cross-examination and go to the weight of Wetstein’s testimony. The
court did not err in denying defendant’s motion to bar retrograde extrapolation evidence.
¶ 126 E. Defendant’s Medical Records
¶ 127 Defendant next argues that the State was not entitled to access all of his confidential
medical records pertaining to the treatment he received at Carle on October 25 and 26, 2014,
which totaled 144 pages. He contends the State improperly obtained his medical records by
way of three subpoenas duces tecum that were issued in violation of HIPAA. Further,
defendant asserts that his medical records were not admissible in evidence.
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¶ 128 1. HIPAA Procedures
¶ 129 Initially, we address defendant’s contention that the State lacked authorized access to his
medical records because it failed to comply with HIPAA procedures. Although defendant does
not cite to any particular HIPAA provision, he suggests that the State erred in not filing a
motion for the issuance of its subpoenas duces tecum or seeking entry of HIPAA qualified
protective orders.
¶ 130 “The appropriate procedure for obtaining medical records is through the use of a subpoena
duces tecum commanding that the records be delivered to the court.” People v. Wilber, 279 Ill.
App. 3d 462, 465, 664 N.E.2d 711, 714 (1996). “This allows the court to conduct an in camera
inspection to determine whether the records are privileged and also provides an opportunity for
the defendant to challenge the release of the records.” Id. at 465-66, 664 N.E.2d at 714.
¶ 131 Further, “HIPAA regulates the occasions when protected health information may be
disclosed.” People v. Botsis, 388 Ill. App. 3d 422, 435, 902 N.E.2d 1092, 1102 (2009).
Relevant to this appeal, it provides for the disclosure of protected health information during
judicial proceedings and in response to a subpoena under the following circumstances:
“(A) The covered entity receives satisfactory assurance *** from the party seeking
the information that reasonable efforts have been made *** to ensure that the
individual who is the subject of the protected health information that has been
requested has been given notice of the request; or
(B) The covered entity receives satisfactory assurance *** from the party seeking
the information that reasonable efforts have been made *** to secure a qualified
protective order ***.” 45 C.F.R. § 164.512(e)(1)(ii) (2014).
Additionally, “satisfactory assurance” under subsection (e)(1)(ii)(A) is deemed given if the
party seeking the protected health information provides a written statement and accompanying
documentation that it made a good faith attempt to provide written notice to the individual
whose information is sought, the notice permitted the individual to raise an objection with the
court, and the time for the individual to raise objections has elapsed with either no objections
being made or when “[a]ll objections filed *** have been resolved by the court *** and the
disclosures being sought are consistent with such resolution.” 45 C.F.R.
§ 164.512(e)(1)(iii)(C)(2) (2014).
¶ 132 In People v. Bauer, 402 Ill. App. 3d 1149, 1158, 931 N.E.2d 1283, 1291 (2010), the Fifth
District noted that “[a]lthough HIPAA provides for penalties against entities that fail to comply
with its provisions [citation], law enforcement agencies, including the office of the State’s
Attorney, are not covered entities under HIPAA.” Further, it noted that HIPAA did not contain
a remedy for the suppression of protected health information that was obtained in violation of
its procedures. Id. at 1158, 931 N.E.2d at 1292.
¶ 133 Here, the State acknowledges that it “did not pursue” defendant’s medical records under
HIPAA. However, consistent with Bauer, we find that to the extent defendant argues the
State’s access to his medical records was unauthorized and the information it obtained must be
suppressed, we disagree. Moreover, the record reflects no prejudice to defendant from the
procedure undertaken in this case. In particular, the record shows defendant was aware of the
State’s subpoenas and filed timely objections. The trial court addressed and considered
defendant’s objections and conducted in camera reviews of all of the challenged records.
Ultimately, the court overruled defendant’s objections and the records were released to the
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State. Had the State complied with HIPPA requirements, the results would have been the same.
See People v. Wilson, 164 Ill. 2d 436, 458, 647 N.E.2d 910, 921 (1994) (finding the defendant
was not prejudiced by the process used to obtain his mental health records where the State
could still have received the records if proper procedures had been followed).
¶ 134 2. Scope of the State’s Medical Records Request
¶ 135 With respect to defendant’s argument concerning the scope of the medical records
requested and obtained by the State, we note that, generally, physicians are prohibited from
disclosing any information “acquired in attending any patient in a professional character,
necessary to enable him or her professionally to serve the patient.” 735 ILCS 5/8-802 (West
2012). However certain exceptions apply to the general rule, including an exception under
section 8-802(4) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/8-802(4) (West
2012)) for actions “wherein the patient’s physical or mental condition is an issue.”
¶ 136 In People v. Popeck, 385 Ill. App. 3d 806, 807, 899 N.E.2d 324, 325 (2008), the State
sought to obtain a DUI defendant’s medical records by filing a motion for leave to issue a
subpoena duces tecum and a HIPAA qualified protective order with the trial court. It sought
medical records for treatment the defendant received on November 27, 2007, the date on which
he was involved in a motor vehicle accident and charged with DUI. Id. The defendant objected
to the State’s request on the basis that only chemical tests could be released to the State. Id.
Following a hearing, the trial court denied the State’s motion on the basis that it was overbroad.
Id. at 808, 899 N.E.2d at 326.
¶ 137 On review, this court reversed, finding section 8-802(4) of the Civil Code “allows release
of medical information other than written results of [a] blood-alcohol test.” Id. at 810, 899
N.E.2d at 327. Further, we rejected the defendant’s argument that the State’s subpoena was
overly broad where it requested all of the defendant’s medical records from the day he was
treated for injuries following his motor vehicle accident. Id. at 810-11, 899 N.E.2d at 327-28
(stating that “[b]ecause access to [the] defendant’s medical records solely for the date of the
accident [was] relevant, material, and not privileged, the subpoena was sufficiently limited in
scope and should have been granted”). In so holding, we agreed that in DUI cases “the medical
staff’s observations of [the] defendant on the date of the accident are relevant in determining
whether [the] defendant was intoxicated.” Id. at 810, 899 N.E.2d at 327.
¶ 138 Here, the State limited the information sought in its subpoenas to medical records for
treatment defendant received immediately following his motor vehicle accident on October 25
and 26, 2014. As set forth in Popeck, section 8-802(4) permitted the release of such
information and the State’s requests were sufficiently limited in scope.
¶ 139 3. Admissibility of Medical Records at Stipulated Bench Trial
¶ 140 Defendant further argues that all of his medical records were inadmissible at trial. He cites
Illinois Rule of Evidence 803(6) (eff. Jan. 1, 2011) for the proposition that medical records
cannot generally be admitted in criminal cases as a business record exception to the hearsay
rule. In response, the State does not argue that defendant’s medical records were admissible in
evidence in their entirety. Rather, it contends that, even if error occurred, it is reasonable to
assume that the trial court, as the trier of fact, disregarded inadmissible evidence in reaching its
conclusion. See People v. Naylor, 229 Ill. 2d 584, 603, 893 N.E.2d 653, 665 (2008) (“[W]hen a
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trial court is the trier of fact a reviewing court presumes that the trial court considered only
admissible evidence and disregarded inadmissible evidence in reaching its conclusion.”).
¶ 141 We note that evidence improperly admitted during a stipulated bench trial is subject to a
harmless error analysis. People v. Durgan, 281 Ill. App. 3d 863, 868, 667 N.E.2d 730, 733
(1996). “Error is harmless if it did not contribute to the conviction, if other evidence in the case
overwhelmingly supports the conviction, or if the evidence improperly allowed merely
duplicated properly admitted evidence.” Id.
¶ 142 At defendant’s bench trial, the stipulation presented to the trial court by the State showed,
that if the case proceeded to a jury trial, Tricia Truscott, Carle’s Director of Health
Information, would testify regarding defendant’s medical records, identifying those records
and confirming that they pertained to defendant’s treatment at Carle. The stipulation also
stated that “[t]he records would then be admitted into evidence.”
¶ 143 Here, in challenging the admission of his medical records, defendant expressly references
only medical records pertaining to his hospital blood draw and “the page with the last meal
notation.” However, as discussed, medical records associated with defendant’s hospital blood
draw were admissible in evidence. See 625 ILCS 5/11-501.4(a) (West 2012). Additionally,
records containing information of defendant’s last meal notation were cumulative of other
evidence. Specifically, the stipulated evidence showed Nurse Kocher “would testify that
[defendant] stated that he had not eaten since approximately 2:00 [p.m. on] October 25, 2014.”
Finally, we find that the record fails to show, and defendant fails to argue, that any other
portion of his medical records contributed in any significant way to the trial court’s finding of
guilt. Thus, any error in the admission of defendant’s medical records was harmless and does
not require reversal of his DUI conviction.
¶ 144 F. Admissibility of Seat Belt Evidence
¶ 145 Finally, on appeal defendant argues the trial court erred in precluding the use of seat belt
evidence at his trial. He contends evidence showing Camp was not wearing her seat belt at the
time of the accident, and that she would have sustained only minor injuries had she been
wearing one was relevant to the issue of whether his conduct proximately caused Camp to
sustain great bodily harm. Defendant maintains the court’s ruling on the issue denied him the
right to present a defense.
¶ 146 Again, issues involving statutory interpretation are subject to de novo review. People v.
Martin, 2011 IL 109102, ¶ 20, 955 N.E.2d 1058; see also People v. Way, 2017 IL 120023, ¶ 18
(“[W]here the ruling on a motion in limine is based on an interpretation of law, *** review
proceeds de novo.”). “The cardinal rule of statutory construction is to ascertain and give effect
to the legislature’s intent, and the plain language of the statute is the best indication of that
intent.” Martin, 2011 IL 109102, ¶ 21, 955 N.E.2d 1058.
¶ 147 Here, defendant was convicted of aggravated DUI, in that he committed a DUI offense—in
this case, driving with a BAC of 0.08 or greater (625 ILCS 5/11-501(a)(1) (West 2012))—and
“was involved in a motor vehicle accident that resulted in great bodily harm *** to another,
when the violation was a proximate cause of the injuries.” (Emphasis added.) 625 ILCS
5/11-501(d)(1)(C) (West 2012).
¶ 148 Further, a DUI violation under section 11-501(a)(1) of the Vehicle Code (625 ILCS
5/11-501(a)(1) (West 2012)) is a “ ‘strict liability’ offense[ ]” that does not require the State to
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present proof of an individual’s impairment. Way, 2017 IL 120023, ¶ 23. When an aggravated
DUI charge is based on a violation of section 11-501(a)(1), it is only required that there be “a
causal link *** between the physical act of driving and” the great bodily harm to another.
Martin, 2011 IL 109102, ¶ 26, 955 N.E.2d 1058 (considering issues related to proximate cause
and a “strict liability’ ” DUI, drug impairment offense).
¶ 149 “Generally, a ‘proximate cause’ is ‘[a] cause that directly produces an event and without
which the event would not have occurred.’ ” People v. Cook, 2011 IL App (4th) 090875, ¶ 17,
957 N.E.2d 563 (quoting Black’s Law Dictionary 234 (8th ed. 2004)). “Proximate cause ‘is
established if an injury was foreseeable as the type of harm that a reasonable person would
expect to see as a likely result of his or her conduct.’ ” Id. ¶ 18 (quoting People v. Johnson, 392
Ill. App. 3d 127, 131, 924 N.E.2d 1019, 1022 (2009)).
¶ 150 In People v. Merritt, 343 Ill. App. 3d 442, 443, 797 N.E.2d 1103, 1104 (2003), the
defendant appealed her aggravated DUI conviction, arguing that the State failed to prove that
her alcohol consumption was a proximate cause of another’s injuries. The underlying facts
showed that the defendant’s vehicle struck and killed the victim as he was jogging across a
road at night. Id. at 443-44, 797 N.E.2d at 1104. On review, we held that “[t]he fact that the
victim’s actions were also a proximate cause of his injuries does not warrant reversal of
defendant’s conviction.” Id. at 448, 797 N.E.2d at 1107. Specifically, we noted that “[a] person
commits aggravated DUI when his or her driving under the influence ‘was a proximate cause
of the injuries’ ***, not the sole and immediate cause of the victim’s injuries.” (Emphasis in
original.) Id. (quoting 625 ILCS 5/11-501(d)(1)(C) (West 2000)).
¶ 151 Here, the plain language of the statute required only that defendant’s conduct in driving
while intoxicated was a proximate cause of Camp’s injuries, not the sole or immediate cause.
Stated another way, there had to be a causal link between defendant’s physical act of driving
and Camp’s injuries. That Camp’s own conduct contributed in some way to the injuries she
sustained would not relieve defendant of criminal liability under the circumstances presented.
Thus, the trial court’s decision to preclude seat belt evidence from defendant’s trial did not
deny him the ability to present a defense and we find no reversible error.
¶ 152 III. CONCLUSION
¶ 153 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal.
¶ 154 Affirmed.
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