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People v. Bertolet

April 01, 1999


Appeal from the Circuit Court of Effingham County. No. 96-CF-203 Honorable Richard H. Brummer, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh


On May 7, 1997, defendant was charged by information with 18 counts of reckless homicide (720 ILCS 5/9-3(a) (West 1994)) and aggravated driving while under the influence of alcohol (hereinafter aggravated DUI) (625 ILCS 5/11-501(d)(3) (West 1994)). A jury trial was commenced on those 18 counts on August 4, 1997. On August 7, 1997, the jury returned verdicts finding defendant guilty of four counts of aggravated DUI and not guilty on all other counts. Defendant's motion for a new trial was filed, heard, and denied. He was sentenced to 30 months' probation. On appeal, defendant raises two issues: (1) whether the State proved beyond a reasonable doubt that defendant was in fact the driver of one of the vehicles involved in the collision and (2) whether the State proved beyond a reasonable doubt that defendant's operation of his vehicle constituted the proximate cause of the deaths of the two victims. This court upholds the verdicts as to the issue whether defendant was the driver of the vehicle but reverses on the issue whether the State proved beyond a reasonable doubt that the actions of defendant were the proximate cause of the deaths of the two victims. Pursuant to Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), we reverse the Class 4 felony convictions of aggravated DUI and enter a judgment of guilty for the Class A misdemeanor of driving under the influence (hereinafter DUI) (625 ILCS 5/11-501(a)(1) (West 1994)).


On March 24, 1996, defendant was alleged to be operating a 1995 Plymouth Neon, registered to Angela Kincaid, traveling on northbound Keller Drive in Effingham. At approximately 1:30 a.m., defendant was attempting to turn left onto the Avenue of Mid America. At the same time and place, Deputy Sheriff John Niccum was operating an Effingham County sheriff's squad car traveling on southbound Keller Drive. When the two vehicles entered the intersection of Keller Drive and the Avenue of Mid America, they collided violently, resulting in serious bodily harm to all persons involved.

The Plymouth Neon driven by defendant had four other passengers: Angela Kincaid, Brian Cunningham, Michael Kull, and Brent Redfern. Angela Kincaid and Brian Cunningham died as a result of the collision, while Brent Redfern, Michael Kull, and defendant all suffered serious bodily harm. Deputy Niccum suffered a stress fracture of his right ankle and lacerations to his right hand. Defendant and the two surviving passengers of the Plymouth Neon remember nothing of the accident, including who was driving the vehicle immediately prior to the accident. Deputy Niccum remembers only that the traffic signal at the intersection of southbound Keller Drive and the Avenue of Mid America was green when he entered it.

There were two witnesses to the accident. James M. Ousley testified that he had been near the intersection, at a McDonald's Restaurant, at the time of the collision. As he exited McDonald's, he saw a sheriff's car go by, and a "split second later" Ousley saw the "end" of the accident. Ousley continued to testify that at the time he observed the end of the accident, the southbound light at the intersection of Keller Drive and the Avenue of Mid America was red. He further testified that when he saw the sheriff's car drive past him it did not have any type of emergency or overhead lights activated. Ousley estimated that the sheriff's vehicle was traveling about 50 miles per hour.

The second witness to the accident was Jennifer Rainford. She testified for the defense as an eyewitness to the speed of the squad car. At the time, she was working at a restaurant located north of the collision site. Rainford testified that the sheriff's car was going about 55 to 60 miles per hour as it passed the restaurant. She testified that the squad car had no warning lights activated.

The first officer to arrive on the scene was Illinois State Trooper Don Schutzbach. He responded pursuant to a call for assistance from Deputy Niccum. Because of the serious condition of the driver of the Plymouth Neon, Schutzbach did not retrieve any identification and initially identified the driver as a female with a lot of hair. After completing his duties at the scene of the accident, Schutzbach proceeded to St. Anthony's Memorial Hospital to obtain the identifications of the driver and the other passengers of the Plymouth Neon. When he arrived at the hospital, he was informed by the attendants that the driver of the vehicle was, in fact, male. In open court he relied on these statements and his own recollection of the appearance of the driver to identify defendant as the driver of the Plymouth Neon. Schutzbach further testified that defendant did not have a beard, contrary to the testimony of Michael Kull and defendant. Schutzbach finished his testimony by stating that the blood drawn by hospital employee Sherri Garner was in fact taken from defendant.

Sherri Garner, a St. Anthony's Memorial Hospital employee, stated that two times subsequent to the accident she drew blood at the hospital from a person she believed to be defendant. She said she also drew blood from the other victims, and she could only describe defendant as "big."

Barbara Miles, a laboratory technician at St. Anthony's Memorial Hospital, participated in the treatment of the passengers in the Plymouth Neon. She stated that the blood she believed to be defendant's was identified only by a number. When she entered the room where an individual identified as defendant was being treated, she saw nurse Dana Hakman drawing blood. Miles did not take that sample of blood because she believed that she was already carrying a vial of defendant's blood. However, Miles indicated that she had no idea where she got the blood in her pocket.

In order to maintain the credibility of the blood-alcohol- concentration evidence, the State relied on Trooper Schutzbach's testimony that he personally witnessed two vials of blood being drawn from defendant and that he personally sent those vials to the Illinois State Crime Lab in Springfield for analysis. Cathy Anderson, a toxicologist with the Illinois State Police Crime Lab, testified that she received and tested the vials sent by Trooper Schutzbach. She stated that she used whole-blood analysis in determining the presence of ethyl alcohol. Based upon the tests she conducted on the blood, she determined an ethanol level of 0.125 grams per deciliter.

Next, the State called Daniel Brown, a toxicologist, to testify to blood-alcohol levels for a person of defendant's height and weight. From the data he received (time and place of accident, height and weight of defendant, and the results of certain analyses performed upon defendant), Brown estimated that at the time of the accident the blood- alcohol level of defendant would have been 0.15 grams per deciliter. In his expert opinion, this blood-alcohol level would measurably impair a driver's ability to operate a vehicle safely. Brown also considered the testimony of Brent Redfern as to how many beers defendant consumed on the evening in question. Redfern testified that, along with the others, defendant consumed six or seven beers on the evening in question. According to Brown, based on the time of the consumption of alcohol relative to the time of the accident, a person of defendant's height and weight would have needed to consume seven to nine beers to reach a 0.15- grams-per-deciliter blood-alcohol level at the time of the accident.

Before Schutzbach went to the hospital, another officer arrived at the scene of the accident, State Trooper David Mahon. Mahon conducted the initial investigation at the scene of the accident by making a diagram of the accident and by taking measurements. His investigation disclosed that defendant's vehicle had attempted to turn left at the time it was struck by the southbound sheriff's car. Mahon further concluded that the sheriff's car made no attempt to stop. He stated that the left-turn lane of northbound Keller Drive is controlled by an arrow. Mahon observed that the traffic lights were such that a left turn could be negotiated without the green arrow, so long as the northbound light was still green. Mahon testified that if defendant's vehicle had pulled forward into the intersection while the light was on green, then he could legally ...

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