Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Lawrence A. Passarella, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, Joseph Emrich, was involved in an early morning automobile collision in which two people were killed. He was indicted on two counts of reckless homicide (Ill. Rev. Stat. 1983, ch. 38, par. 9-3(a)) and one count of driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501) (DUI). After a suppression hearing in the circuit court of Cook County, the circuit judge held that the results of a chemical analysis of the defendant's blood performed hours after the collision were inadmissible. The State appealed pursuant to our Rule 604(a)(1) (87 Ill.2d Rd. 604(a)(1)), and the appellate court affirmed (132 Ill. App.3d 547). We allowed the State's petition for leave to appeal (94 Ill.2d R. 315).
Following the collision, the defendant was transported to Henrotin Hospital in Chicago, where Tereseta Easterling, a medical technologist, drew three blood samples at about 2:30 a.m. Each was drawn directly from the defendant into separate sterile vacuum tubes; one tube had a "green top," indicating that it contained an anticoagulant, while the two remaining vials had "red tops," signifying that they contained no anticoagulant or preservative. Easterling labeled the vials and proceeded to test the green-top sample for alcohol content. The record does not reveal the results of this test.
Easterling gave the two red-top vials to a police officer. They were first taken to the Chicago police crime lab, and then forwarded to Veronica Rotterman, a chemist with the Illinois Department of Public Health. Rotterman placed one of the vials in an "evidence refrigerator" and, shortly before 10 a.m., analyzed a sample from the second vial for alcohol content by means of a gaschromatograph direct-injection test.
The defendant filed a discovery motion seeking, inter alia, the blood sample taken on the night of the collision. More than a month later, and almost two months after the blood was drawn, the State tendered the vial which Rotterman had placed in the evidence refrigerator. The defendant thereafter filed a motion to suppress Rotterman's analysis on the ground that the State's failure to properly maintain the blood sample effectively precluded him from obtaining an independent analysis; although his motion did not expressly raise the validity of Rotterman's results, he introduced substantial evidence on that question.
Only the analysis performed by Rotterman and the admissibility of that analysis absent an opportunity for an independent test by the defendant not the test conducted by Easterling are at issue here. In its memorandum in the trial court, the State argued that it was Rotterman's analysis which it sought to introduce. Both the circuit and appellate courts concluded that no issue had been raised regarding the admissibility of Easterling's results. (See 132 Ill. App.3d 547, 548 n. 1.) While there has been some allusion to that test in this court, neither party has clearly objected to the conclusion of the appellate court, and we see no reason to depart from it.
At the suppression hearing, testimony regarding the validity of Rotterman's analysis and the ability of the defense to conduct an independent test came from the defendant's expert, Richard Swiatek, a certified specialist in clinical chemistry, and Rotterman herself. Swiatek observed that the sample tendered to the defense was clotted. He testified that the absence of an anticoagulant in both the sample tested by the State and the one received by the defense would result in immediate clotting of the blood, making it impossible to test accurately the whole-blood alcohol concentration at any time after it was drawn. He also stated that the lack of a preservative, as distinguished from an anticoagulant, would affect the stability of the sample and would severely limit the time during which the blood would be suitable for testing. Rotterman acknowledged that blood drawn into a red-top tube would start clotting very rapidly, but stated that she had mixed the clotted blood cells with the blood serum in order to obtain a representative sample of the whole blood. She also conceded, however, that the test was not one of the whole blood. Rotterman asserted that the sample she tested had not deteriorated at the time of the analysis; she admitted, nevertheless, that the standards of her department call for blood to be drawn into vials containing an anticoagulant and a preservative.
The circuit judge found that the State had failed to maintain the blood sample properly, resulting in "spoilation" of the blood and making it impossible for the defendant to obtain an independent analysis. The judge held that this default denied the defendant due process, and allowed the motion to suppress the blood analysis on all the charges. The court also noted that the analysis was not performed in accordance with the Department of Public Health standards for chemical analysis of blood as required by section 11-501.2(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2(a)). The appellate court did not reach the due process issue. In affirming the circuit court, it held only that the State's failure to comply with the statute and the standards barred the use of the analysis against the defendant. The appellate court relied specifically on the failure to add an anticoagulant to the blood sample.
Section 11-501.2(a) provides in relevant part:
"Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 or a similar local ordinance, evidence of the concentration of alcohol, other drug or combination thereof in a person's blood or breath at the time alleged, as determined by analysis of the person's blood, urine, breath or other bodily substance, shall be admissible. Where such test is made the following provisions shall apply:
1. Chemical analyses of the person's blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Public Health in consultation with the Department of Law Enforcement by an individual possessing a valid permit issued by that Department for this purpose." (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2.)
One of the standards promulgated pursuant to this section requires that "[w]hen vacuum-type blood-collecting containers are * * * used as primary collecting tubes, two (2) tubes should be collected each containing an anticoagulant/preservative which will not interfere with the intended analytical method." (Emphasis added.) Rule 11.01(d)(3), Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs (1982).
The appellate court's view was that section 11-501.2 made the chemical-analysis standards applicable to both reckless homicide and DUI prosecutions. Because the State here tested a blood sample collected in a tube containing no anticoagulant or preservative, the appellate court held that the analysis had to be suppressed with respect to all the counts in the indictment. Following the appellate court decision in this case, however, we held in People v. Murphy (1985), 108 Ill.2d 228, that the application of section 11-501.2 is limited to prosecutions for driving under the influence, and that a chemical blood analysis offered to prove reckless homicide need only be judged by "ordinary standards of admissibility." (108 Ill.2d 228, 234.) We therefore consider first the admissibility of the blood analysis on the driving-under-the-influence charge and then on the reckless-homicide charges.
In Murphy we emphasized that section 11-501.2 was intended to ensure reliability of evidence introduced in prosecutions for driving under the influence. (108 Ill.2d 228, 234.) The State contends here, though, that even in a DUI case that section is not mandatory and that the failure to comply with the standards incorporated in the statute does not render the evidence inadmissible. In support of this position, the State calls attention to a 1982 amendment of chapter 11 of the Illinois Vehicle Code. Prior to that time section 11-501.2 did not exist, but section 11-501(d) read that "[c]hemical analysis of the person's blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health." (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(d).) The 1982 amendment substantially revised chapter 11, including section 11-501, and added a new section 11-501.2 (quoted above) (1981 Ill. Laws 1734, 1744, 1751-53), which provides that a chemical analysis, "to be considered valid under the provisions of this Section
shall have been performed according to standards" promulgated by the Department. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2.) The State insists that the change from "must," as used in the superseded statute, to "shall have been," as used in section 11-501.2, evidences a ...