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People v. Luth

November 20, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY M. LUTH, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Douglas County No. 00TR2335 Honorable Frank W. Lincoln, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

UNPUBLISHED

In October 2000, the State charged defendant, Gary M. Luth, with the offense of driving with a blood-alcohol concentration of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2000)). In January 2001, a jury returned a verdict of guilty. Thereafter, the trial court sentenced defendant to 30 days in jail, 18 months' probation, along with over $600 in fines. On appeal, defendant argues the State's use of his serum blood-alcohol test results failed to prove his guilt beyond a reasonable doubt. We affirm.

I. BACKGROUND

In July 2000, defendant received a uniform traffic complaint charging him with failure to reduce speed to avoid an accident following a two-vehicle collision. The State, in September 2000, charged defendant with failure to reduce speed and sought review of medical records for the possibility of filing additional charges. In October 2000, the State charged defendant with driving with a blood-alcohol concentration of 0.08 or more, a Class A misdemeanor (625 ILCS 5/11- 501(c) (West 2000)), alleging he drove a motor vehicle with a blood- alcohol concentration of 0.08 or above. In January 2001, the State moved to dismiss the count charging defendant with failure to reduce speed to avoid an accident, which the trial court granted. Thereafter, defendant's jury trial commenced.

Josh Huber testified that on July 23, 2000, he was preparing to stop at an intersection in Douglas County when defendant ran his motorcycle into the back of Huber's pickup truck. Huber exited his vehicle and dialed 9-1-1.

Clinton Howard, a Douglas County deputy sheriff, testified he arrived at an accident scene on July 23, 2000. He secured the accident site and found defendant lying in the westbound lane. After clearing the scene, he returned to the sheriff's office to finish the accident report. Deputy Howard later received a call from the hospital indicating defendant's blood-alcohol level measured 0.181. Hospital staff asked if Deputy Howard was en route to hold a standard sample kit for driving-under-the-influence cases. Deputy Howard indicated he did not believe he could make it to the hospital before defendant underwent surgery.

John Sanderson, an assistant phlebotomy supervisor at Carle Hospital in Champaign, testified he was on duty on July 23, 2000, when defendant was transported as a trauma patient. Sanderson indicated he drew the standard blood panel, which included testing a patient's blood- alcohol content, and sent it to the laboratory.

Bridget Wallace, a medical technologist, testified she ran a comprehensive panel on defendant's blood. The computer- generated report indicated the serum-alcohol level. On cross-examination, Wallace agreed serum blood is not the same as whole blood. She testified whole blood separates into serum, the "clear yellowish portion" of the blood. Wallace also stated the serum-alcohol result in defendant's case was 0.181 grams per deciliter of serum. She could only "assume" testing for substances in whole blood would yield a different result than testing for substances in serum blood.

Dr. Sidney Rohrscheib, a general surgeon, testified defendant arrived in the emergency room, where standard blood tests were performed. He stated he received defendant's results showing a serum- alcohol level of 0.181 grams per deciliter. Dr. Rohrscheib testified that "serum is that fraction of the blood[,] when spun down in an old[- ]fashion[ed] centrifuge, [that] is devoid of all the cellular material and debris, so it's that portion of the blood after you've subtracted all the white cells and red cells." He stated whole blood is serum plus the cellular component put back in. He postulated that serum is probably "very close" to whole blood, within 10% and 20% when compared with whole blood. Dr. Rohrscheib stated serum-blood results are converted into whole-blood results by multiplying the serum value by a conversion factor "between 80 and 90 percent." He stated a 60% difference between serum blood and whole blood would be "impossible." Dr. Rohrscheib opined that the value of 0.181 in this case, when converted to a whole-blood value, "might drop between 10 and 20 percent." He also stated there was no one standard conversion table rate but many that are all within a range of 10% to 20%. No tests analyzing defendant's whole blood were performed at the hospital.

After the State rested its case, defense counsel called Thomas Burr, a forensic scientist. He indicated he had studied the testing of whole blood and serum blood with reference to alcohol content. Burr testified there is no established conversion table for converting a serum-alcohol result to a whole-blood-alcohol result. He stated the standard determining impairment is 0.08 grams per 100 milliliters of whole blood, but there is no standard for serum blood. Burr stated the serum measurement can range 3% to 60% higher than the whole-blood- alcohol concentration, although the average is between 10% and 20%. If the difference amounted to 60%, Burr calculated a serum-alcohol level in this case would convert to a whole-blood-alcohol level of 0.07.

Following closing arguments, the jury found defendant guilty on the charge of driving under the influence of alcohol with a blood- alcohol content of 0.08 or more. In February 2001, defendant filed a motion for new trial or for judgment of acquittal notwithstanding the verdict, which the trial court denied. Thereafter, the trial court sentenced defendant to 30 days in jail, 18 months' probation, imposed over $600 in fines, and ordered defendant to attend a victim-impact panel and complete any recommended treatment. This appeal followed.

II. ANALYSIS

Defendant argues the State's use of the serum-alcohol test results failed to establish the alcohol concentration in his blood was 0.08 or more based upon the definition of "blood" under section 11- 501.2 of the Illinois Vehicle Code ...


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