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People v. Romano





Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.


Defendant John Romano was charged by indictment on August 3, 1982, with the offense of reckless homicide and was convicted after a seven-day jury trial. On appeal, defendant contends the trial court committed reversible error by admitting the results of a chemical analysis performed on his blood because the sample was not handled properly and because he did not consent to the blood test, and also erred in allowing the admission of his statements at the hospital because he was in custody, but received no Miranda warnings. Finally, defendant argues the trial court erred in allowing the jury to hear the testimony of the State's accident reconstruction expert prior to striking that testimony. We affirm.

The accident involving defendant and which resulted in the death of Brett Motisi occurred at approximately 5:35 p.m. on July 23, 1982, in Kane County. Both defendant and his brother, Tom Romano, spent the afternoon of July 23 at a friend's house. At approximately 4:30 p.m. defendant followed his brother by car back to their parent's home, arriving at approximately 5 p.m. Intending to return to the friend's house, defendant again followed his brother, each in a separate car, eastbound on Bowes Road. Defendant moved into the oncoming lane of traffic to pass his brother, and his car struck Brett, who was traveling by bicycle with westbound traffic on the north side of Bowes Road. Brett's mother, Karen Motisi, was also struck by defendant's car. The victim's sister, Kimberlee Motisi, who was also riding a bicycle, was not injured.

Upon arriving at the accident scene, Kane County Deputy Sheriff Eugene F. Heppler observed the two injured persons and then defendant, who was standing in the driveway of a nearby house. Because defendant appeared injured, Heppler sought medical attention for him and then continued his investigation at the accident scene.

Defendant was transported by ambulance to the emergency room of St. Joseph's Hospital in Elgin. Heppler arrived at the hospital a short time later, introduced himself again to defendant and asked him to describe the accident. After taking defendant's statement, Heppler ticketed defendant for the offense of driving under the influence, requested that he submit to a blood test and advised him from a card of the provisions of the implied consent statute. According to Heppler and Barbara Oberg, an emergency room nurse, defendant consented to the blood test. Heppler also recited to defendant his Miranda rights. Defendant then signed a form in which defendant authorized release of information which Heppler then countersigned. Oberg swabbed the area from which blood was withdrawn with distilled water, drew two vials of blood, dated and signed the vials and took possession of them. Heppler transported defendant to the Kane County jail.

Defendant was indicted for the offense of reckless homicide. He pleaded not guilty and requested a jury trial. The State proceeded to trial on a bill of particulars which alleged that the acts constituting recklessness by defendant included speeding, driving under the influence of alcohol, changing lanes with bicyclists on the shoulder, and driving in the oncoming lane of traffic. Defendant made two pretrial motions: to suppress his statements made at the hospital and to exclude from evidence results of a blood alcohol test. At a hearing on November 4 and 10, 1982, the trial court heard testimony and arguments and then denied both motions.

At the commencement of defendant's trial, defendant made a motion in limine requesting that the State be precluded from introducing any testimony or making any reference to any statements or reports of an accident reconstruction expert. The court denied the motion. As its case in chief, the State presented numerous witnesses including Heppler, Oberg, and several eyewitnesses to the accident.

Principally to establish the chain of custody and the handling of blood-alcohol samples following the accident, the State also introducted the testimony of a Kane County deputy sheriff, several employees of the Illinois Department of Law Enforcement (IDLE), and a chemist for the Illinois Department of Public Health (IDPH) who performed the blood-alcohol test on defendant's blood. The State also presented the testimony of Thad Aycock, a senior consultant at Northwestern University Traffic Institute, who testified based upon certain information supplied to him by the sheriff's department that at the point defendant applied his brakes, he was traveling at a minimum speed of 78 miles per hour. Defendant thereafter filed a motion to strike Aycock's testimony, which the trial court subsequently granted prior to the close of evidence. Accordingly, the court instructed the jury to disregard Aycock's testimony.

The defense case included two of defendant's friends who testified defendant was sober just prior to the accident and defendant's brother who, because he was in another car at the scene when the collision occurred, offered testimony regarding the details of the accident. Defendant also gave his version of the accident and testified he had consumed at least two beers that day. As evidence of the proper techniques and procedures for the storage and evaluation of blood when blood alcohol tests will be performed, defendant presented the testimony of Dr. Michael Schaffer, chief toxicologist for the office of the medical examiner of Cook County, and in rebuttal on the same subject, the State called Dr. Jeorg Pirl, assistant chief toxicologist of the IDPH.

Following testimony from the last witness, a registered nurse, the jury returned a verdict of guilty. The trial court on February 10, 1983, sentenced defendant to a term of three years imprisonment. On March 8, 1983, defendant filed a post-trial motion containing 18 assignments of error which the trial court denied on April 4, 1983. Defendant filed a timely notice of appeal that same day.

• 1 Defendant first contends the trial court erred in admitting into evidence defendant's blood alcohol test results. Specifically, defendant contends the blood samples and test results were admitted improperly because certain provisions of the Standards and Procedure for Testing for Alcohol and/or Other Drugs (Standards) of the Illinois Department of Public Health as provided for in section 11-501.2 were not satisfied (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2).

The provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501 et seq.) are implicated if three requirements of the statute are satisfied. First, the provisions concerning implied consent including the Standards are applicable only if the motorist is first arrested for an offense as defined in section 11-501. (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 11-501.1, 11-501.2.) Here, defendant was arrested for DUI prior to the blood test.

The second requirement is that the blood test be administered at the request of a law enforcement officer (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.1; People v. Durbin (1985), 138 Ill. App.3d 895, citing People v. Murphy (1985), 108 Ill.2d 228, 234.) This requirement is satisfied on these facts for Heppler testified he requested that defendant submit to the blood test.

The third requirement of the statute is that the subsequent criminal prosecution arise out of an arrest for an offense as defined in section 11-501. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2.) Recently, our supreme court considered the meaning of this third requirement. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2; People v. Murphy (1985), 108 Ill.2d 228.) Noting that the only offense defined in section 11-501 is driving under the influence, the Murphy court concluded that the only criminal prosecution which can arise out of an arrest for an offense as defined in section 11-501 is driving under the influence. Specifically, the Murphy court held that a reckless homicide prosecution, as is involved here, does not arise out of an arrest for driving under the influence. Therefore, even though defendant was arrested for DUI prior to the request for a blood sample by the law enforcement officer, defendant was not ultimately prosecuted for DUI, and thus the Standards referenced in section 11-501.2 were inapplicable to defendant's prosecution for reckless homicide. People v. Murphy (1985), 108 Ill.2d 228.

• 2 Having found that the Standards are inapplicable to the reckless homicide prosecution here, we nonetheless are urged by defendant to find the samples and test results inadmissible based upon ordinary standards of admissibility. (See People v. Murphy (1985), 108 Ill.2d 228, 234.) In arguing that his blood samples were not handled in accordance with the Standards, defendant at trial and in this court attacked the reliability of the blood test evidence on the basis that the samples were left unrefrigerated and untested for nearly two months. Both defendant and the State offered expert testimony concerning the effect of the delay and lack of refrigeration prior to testing on the accuracy of the test results. Michael Schaffer, chief toxicologist for the office of the medical examiner of Cook County, testified based upon a hypothetical question that the test results from a blood sample left unrefrigerated for approximately 50 days prior to testing would be invalid. The reason is that during that period, microorganisms add yeast to sugar, thereby increasing the alcohol content of the sample. Schaffer read from an article by Kurt M. Dubowski, Ph.D, which concluded that a preservative including sodium fluoride was appropriate for short-term storage of a blood sample at five degrees centigrade or cooler. Likewise, defendant's sister, Sue Hewlett, who is a registered nurse employed by Sherman Hospital in Elgin, read from the reference book used in the emergency room at Sherman Hospital that a sample of five millileters of blood with 50 milligrams of sodium fluoride would remain stable for seven days at room temperature. As correctly noted by the State, however, Schaffer did not give his opinion on the effect of nonrefrigeration on a blood sample containing a preservative, and Hewlett offered no testimony on whether a blood sample containing sodium fluoride should be refrigerated, stating her responsibility as a nurse was to take the blood and give it to the police officer.

The failure of the defense witnesses to testify directly on the reliability of a blood sample containing sodium fluoride and handled as were defendant's samples here is significant because Heppler and Oberg testified defendant's blood samples were withdrawn into tubes containing sodium fluoride. In contrast to defense witness Schaffer, Dr. Jeorg Pirl, assistant chief toxicologist for the State of Illinois, directly stated unrefrigerated blood with a preservative could be tested accurately for blood alcohol content even if such testing did not occur for many days. In fact, Pirl found in studying from 1967 through 1969 the effect of nonrefrigeration on blood alcohol that blood samples which were unrefrigerated for three months but which contained sodium fluoride showed a slight decrease in alcohol levels. Pirl did not publish the results of his tests, which involved an examination of 15 blood samples over a 90-day period, because similar results were already published by other researchers.

While not directly contradictory because Schaffer did not give his opinion as to the effect on blood alcohol levels of an unrefrigerated sample containing a preservative, the testimony of Pirl and Schaffer presented the jury with differing opinions on the issue of whether defendant's blood samples could ...

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