Appeal from the Circuit Court of McHenry County. No. 09-DT-1090 Honorable Gordon E. Graham, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Bowman and Birkett concurred in the judgment and opinion.
¶ 1 Defendant, Paquita Winterpacht, appeals from her conviction of driving with a blood alcohol level of 0.08 or above (625 ILCS 5/11-501(a)(1) (West 2008)). She contends that there was insufficient evidence to convict her when her blood alcohol level was 0.182 two hours after she was driving and there was no extrapolation testimony about what the level was when she was driving. We affirm.
¶ 3 On September 21, 2009, defendant was charged by complaint with driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2008)), failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a) (West 2008)),*fn1 and driving with a blood alcohol level of 0.08 or above. In September 2010, a jury trial was held.
¶ 4 At trial, the State presented testimony that, on September 21, 2009, at about 8 p.m., defendant was seen driving a vehicle that swerved into the wrong lane of traffic, swerved onto the shoulder of the road, and continued to swerve once it turned onto another road. Defendant's vehicle later went off the road and into a ditch. At 8:23 p.m., paramedics arrived at the scene.
¶ 5 Patrick Ryan, a paramedic at the scene, reported that defendant was slurring her speech and not answering questions appropriately. Defendant told Ryan that she had been drinking hard alcohol, and Ryan observed that there was a smell of alcohol in the ambulance after defendant was placed in it. Another paramedic also reported a smell of alcohol in the ambulance. No alcohol containers were found at the scene.
¶ 6 At 8:55 p.m., Joy Hendricks, a nurse at the hospital, saw defendant. Defendant did not know what day it was or where she was. Defendant admitted to alcohol use and said that she had come in a cab to the hospital from a blues bar. However, Hendricks said that defendant was alert and that her condition improved while she was at the hospital. The attending physician provided similar testimony, stating that, over the course of time, defendant was more and more able to provide information. The physician stated that defendant's mental condition was consistent with that of a person who had a concussion, but he also opined that defendant was under the influence of alcohol.
¶ 7 The arresting officer, Ryan Rodriguez, first encountered defendant at the hospital sometime after 9 p.m. and observed that her speech was slow and slurred and that she was lethargic in responding to questions from hospital staff. He heard defendant state that she had been drinking. After the hospital staff completed their intake questions, Rodriguez smelled a strong odor of alcohol on defendant's breath and observed that she continued to have slow, lethargic, and slurred speech, both at the hospital and when he was transporting her to the county jail.
¶ 8 Two blood draws were taken from defendant at around 10:10 p.m. The laboratory technician who tested the blood provided information about the machine used in the testing and opined, based on the tests, that the blood had an alcohol content of 0.182.
¶ 9 The jury found defendant not guilty of driving under the influence of alcohol and failure to reduce speed to avoid an accident, but found her guilty of driving with a blood alcohol level of 0.08 or above. Defendant's motion for a judgment of acquittal notwithstanding the verdict was denied, and she was sentenced to 40 days in jail and 2 years' conditional discharge. She appeals.
¶ 11 Defendant contends that there was insufficient evidence to convict her, because the State failed to show what her blood alcohol content was when she was driving. She argues that retrograde extrapolation testimony was required in order to show ...