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08/25/95 PEOPLE STATE ILLINOIS v. JUAN SOLIS

August 25, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JUAN SOLIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Michael Getty, Judge Presiding.

Rehearing Denied September 22, 1995.

The Honorable Justice Rakowski delivered the opinion of the court: Egan, and Zwick, JJ., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Following a bench trial defendant, Juan Solis, was convicted of reckless homicide (720 ILCS 5/9-3(a) (West 1992)) and driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 1992)). Defendant was sentenced to three years in the Illinois Department of Corrections. The issues on appeal are: (1) whether the trial court erred in allowing an expert witness to offer testimony as to defendant's blood-alcohol level at the time of the accident based on defendant's inadmissible blood-alcohol test results; and (2) whether the evidence was sufficient to prove that defendant was guilty of reckless homicide beyond a reasonable doubt. For the reasons which follow, we reverse and remand.

Defendant filed a pretrial motion to suppress a blood-alcohol test report that he anticipated would be introduced into evidence as an exception to the hearsay rule pursuant to section 11-501.4 of the Illinois Vehicle Code (625 ILCS 5/11-501.4 (West 1992)) On April 23, 1990, the trial judge granted the motion to suppress, finding that section 11-501.4 of the Vehicle Code was "irreconcilably in conflict" with Supreme Court Rule 236 (134 Ill. 2d R. 236). The State appealed, and this court reversed the trial judge's ruling finding that no conflict existed. People v. Solis (1991), 221 Ill. App. 3d 750, 583 N.E.2d 26, 164 Ill. Dec. 472.

On remand, defendant brought a motion in limine to prevent theprosecution from introducing his blood-alcohol concentration test because the blood-alcohol test was precluded by section 11-501.4 which provides in relevant part:

"(a) Notwithstanding any other provision of the law, the written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code *** or in prosecutions for reckless homicide brought under the Criminal Code of 1961, when each of the following criteria are met:

(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;

(2) the blood alcohol tests were performed by the hospital's own laboratory; and

(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment." (625 ILCS 5/11-501.4 (West 1992).)

According to defendant, because the physician did not receive the results of his blood-alcohol test in writing, the test results are inadmissible.

Blood-alcohol tests results not in compliance with the criteria set forth in section 11-501.4 have been held inadmissible. ( People v. Mueller (1991), 221 Ill. App. 3d 234, 237, 581 N.E.2d 817, 163 Ill. Dec. 663; People v. Reardon (1991), 212 Ill. App. 3d 44, 47-48, 570 N.E.2d 791, 156 Ill. Dec. 315.) In the instant case, the trial court granted defendant's motion and ruled that the blood-alcohol test results were inadmissible based on its finding that the blood-alcohol test results which the emergency room physician received and considered in his treatment of defendant were not received in writing, contrary to the requirement of the statute. *fn1

The State does not dispute the trial court's ruling on the inadmissibility of defendant's blood test results nor does it argue that the amendment to the statute would apply to this appeal.

On October 14, 1992, the State was granted leave to amend its answer to discovery to include an expert witness, Dr. Daniel J. Brown. Because Dr. Brown's testimony included his opinion as to defendant's blood-alcohol level at the time of the accident, based on the inadmissibleblood test results, defendant presented another motion in limine to prevent Dr. Brown from using or referring to the blood test. After hearing the expert's testimony, the trial judge denied the motion and admitted Dr. Brown's testimony.

Police Officer Jankaskas testified that on September 4, 1987, he observed the collision of defendant's vehicle with the police squad car. After calling for assistance, Jankaskas checked the condition of the occupants of the two vehicles. At that time he observed that defendant had the odor of alcohol on his breath and that his eyes were bloodshot and glassy.

Police Officer Michael Rivera testified that on the day of the accident he spoke with defendant and observed his gait. Rivera stated that defendant's speech was slurred, and he swayed and staggered as he walked. Rivera also noted that defendant had a strong odor of alcohol on his breath. However, on cross-examination, Rivera testified that he never prepared a police report of the accident and ...


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