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December 31, 1997


Appeal from the Circuit Court of Cook County. No. 92 CR 16860. Honorable James A. Zafiratos, Judge Presiding.

The Honorable Justice Hourihane delivered the opinion of the court. Hartman and South, J.j., concur.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:

On June 4, 1992, defendant Darwin Green was involved in an automobile accident which killed Florence McCaffray and seriously injured two other members of her family. Defendant was indicted on two counts of reckless homicide and three counts of aggravated driving under the influence of alcohol. A jury trial followed, and defendant was found guilty as charged. Defendant was thereafter sentenced to a single seven-year prison term for reckless homicide as well as to a concurrent three-year prison term for each count of aggravated driving under the influence of alcohol.

On appeal, defendant contends that (1) the jury was misled into believing it could presume his legal intoxication pursuant to certain blood serum-alcohol concentration test results, (2) the State was improperly allowed to elicit testimony interpreting the discrepancies between his various alcohol concentration test results, and (3) one of his convictions for aggravated driving under the influence of alcohol violates the "one act-one crime" rule. For the reasons that follow, we reverse defendant's convictions and remand this matter for a new trial.

BACKGROUND Paul McCaffray was driving south on River Road through River Grove, Illinois, late in the evening on June 4, 1992. With him was his wife, Margaret, his six-year-old daughter, Julianne, and his mother, Florence. McCaffray testified at trial that as he changed lanes in anticipation of making a left-hand turn onto Grand Avenue, "[he] saw two headlights coming directly at [him] at what appeared to be a relatively high rate of speed." A collision followed. Florence McCaffray was killed instantly; McCaffray and his wife were seriously injured.

John Mancini was traveling north on River Road that evening. Mancini testified that he first noticed defendant upon pulling alongside him at the intersection of Fifth Avenue and Hemingway Drive; defendant was stopped "on an angle" approximately 40 feet behind that intersection.

Mancini further testified that as he drove north on Fifth Avenue and then later on River Road, defendant twice came "right up on [his] bumper and then backed off" before veering into, and out of, the southbound traffic lanes. Defendant crossed over into the southbound traffic lanes on four separate occasions; he collided with a southbound car the fourth and final time.

River Grove police detective Keith Aller testified that he was dispatched to the accident scene minutes after the collision, which he described as two cars "head to head *** " in the left-hand, southbound traffic lane of River Road. Detective Aller found defendant was "semi-conscious" with several head injuries; he also smelled of alcohol.

Emergency medical technician John Paczesny arrived shortly thereafter. He, too, noticed that defendant smelled of alcohol.

Detective Aller secured the personal property within defendant's car, which included a money clip, a portfolio, some jewelry, a pager and a large, "picnic-type cooler;" no alcohol was found. Detective Aller then drove to Gottlieb Memorial Hospital, where nurse Patrick Coleman took a series of blood and urine samples from defendant, certain of which were sealed and inventoried by Detective Aller as evidence.

Dr. Joyce Rosenfeld, an emergency room physician at Gottlieb, saw defendant upon his admission, and as a matter of course, ordered a series of tests, including a blood serum-alcohol concentration test. Dr. Rosenfeld testified that the result of that test indicated an alcohol concentration level of 0.114 gram per 100 milliliters, which she explained, meant "that the person is intoxicated above a level that would be a legal blood[-alcohol] limit." Dr. Rosenfeld further testified that a blood serum-alcohol concentration level between 0.50 and 0.10 gram per 100 milliliters "shows signs of intoxication," whereas a level of 0.10 or greater means "under the influence *** ."

Thereafter, the parties stipulated that one of the series of blood samples taken from defendant upon his admission to Gottlieb was forwarded to Metpath Laboratories, a private laboratory retained by Gottlieb. Like Gottlieb, Metpath also subjected defendant's blood serum to an alcohol concentration test. However, the result of that test, 0.124 gram per 100 milliliters, was somewhat higher than that reported by Gottlieb.

Laura LeDonne-Draka, a forensic scientist with the Illinois State Police, testified that she also analyzed a sample of defendant's blood. She, however, did not analyze defendant's blood serum as had Gottlieb and Metpath; rather, she analyzed defendant's whole blood, which according to the result of her test, contained an alcohol concentration level of 0.079 gram per 100 milliliters. LeDonne-Draka stated that an alcohol concentration test of blood serum "would give a higher [alcohol concentration] reading" than would an identical test of whole blood. *fn1 Indeed, according to LeDonne-Draka, an alcohol concentration test which analyzes blood serum will produce alcohol concentration levels approximately 16% higher than those which analyze whole blood, thus necessitating the use of a conversion factor to obtain equivalent whole blood-alcohol concentration levels.

Tiffany Bailey then testified on behalf of defendant, who she described as a "friend of the family." According to her, defendant would often visit her at her job, and did so again on evening of the collision following his softball game. Defendant remained with her for about an hour, during which time she noticed nothing unusual about him.

Defendant testified that some time after he finished work on June 4, 1992, he drove to a friend's house, stopping first to purchase beer. When defendant arrived at his friend's house, he brought two bottles of beer inside. Defendant stated that he drank half a bottle before leaving with his friend for a softball game.

Defendant thereafter participated in the softball game with no ill effects. Defendant also stated that he did not have another drink until the game ended at 8:30 p.m., at which time he had another beer. After ...

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