Defendant’s conviction for driving under the influence of alcohol was reversed and the cause was remanded for a new trial where the trial court’s instruction to the jury on the conversion factor applicable to converting defendant’s blood serum alcohol content to whole blood alcohol content did not comply with the rules of evidence concerning judicial notice because the instruction lacked language advising the jury that it was not mandated to accept the identified conversion factor or adopt the calculations based on a formula using the conversion factor, and that error was not harmless.
Mark D. Fisher, of State Appellate Defender's Office, of Ottawa, for Appeal appellant.
Jamie J. Boyd, State's Attorney, of Kankakee (Judith Z. Kelly, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Justices Carter and Holdridge concurred in the judgment, and opinion.
WRIGHT, PRESIDING JUSTICE
¶ 1 The State charged defendant, Veronica A. Love, with driving while under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2010)). During the State's case-in-chief, the court took judicial notice of the applicable conversion factor for blood serum alcohol content to whole blood alcohol content. Defendant requested the court to first inform the jury of the conversion factor as part of the formal jury instructions. However, ultimately, defendant objected to the language incorporated into the non-Illinois Pattern Jury Instruction (IPI) submitted to the jury. Following a guilty verdict, the trial court sentenced defendant to serve a term of court supervision. Defendant appeals, arguing that language in the non-IPI instruction was improper and the State's evidence did not establish her guilt for DUI beyond a reasonable doubt. We reverse and remand for a new trial.
¶ 2 FACTS
¶ 3 The jury received the following evidence. On the night of April 15, 2011, defendant was present at her friend Michael Caspers' restaurant, located in Momence, for about three hours while celebrating Caspers' sixty-first birthday. During the celebration, Caspers served defendant two vodka drinks, and other bartenders may have served her additional drinks. Shortly after midnight, defendant left the party and drove away in her vehicle. Ten minutes after she left, Caspers received a telephone call from defendant explaining she had driven off the road about 2.5 miles from the restaurant. Caspers and his two daughters drove to the scene to check on defendant. Upon arrival, Caspers observed defendant sitting in her car, which was parked on the north side of the road. Defendant was crying, thought her leg was broken, and stated she ran off the roadway.
¶ 4 While at the scene, Caspers noticed that the car's driver's-side mirror was hanging down by its cable, the driver's side of the vehicle had visible scratches, the windshield was cracked, and the passenger-side rear tire was both flat and shredded. On the south side of the road, trees were damaged and a road sign was bent. About 100 yards away, Caspers noticed shreds of a rubber tire on the road.
¶ 5 Caspers testified that he was a former police sergeant, Breathalyzer operator, and accident reconstruction specialist. In his opinion, defendant was not under the influence of alcohol. Caspers believed that defendant had blown a tire, causing her to lose control and drive off the road. Casper opined that once defendant regained control of her car, she drove back on the road, and parked on the shoulder.
¶ 6 Caspers' daughters offered to take defendant to the hospital and Caspers loaded defendant into his daughters' car before returning to his restaurant. Shortly thereafter, Caspers received a call from his daughters informing him defendant refused to go to the hospital and was walking down the side of the road. Caspers returned to the scene and pleaded with defendant to go to the hospital. When defendant refused, Caspers' daughter called 911. Three police officers and an ambulance arrived at the scene.
¶ 7 Kankakee County Sheriff's Deputy Brooke Payne, one of the responding officers, testified that when she arrived, defendant was on a stretcher in the ambulance. Payne asked defendant for her driver's license but defendant stated that she did not know where her purse was. Payne advised defendant her purse was next to defendant on the stretcher. Thereafter, defendant removed her wallet from the purse but was unable to retrieve her license from the wallet. Payne detected a hint of alcohol emanating from defendant and observed that defendant's eyes were red and bloodshot. Defendant explained that her vehicle had gone off the road, but she was not sure why. Payne did not notice whether the vehicle's tire was flat and shredded, but did observe tire tracks leading from the south side of the roadway into a ditch and then back onto the road. Payne concluded that defendant had driven off the road and interpreted the accident to indicate defendant was under the influence of alcohol.
¶ 8 Payne spoke to defendant again at the hospital, where she detected a stronger odor of alcohol than the odor she detected in the ambulance. Payne placed defendant under arrest for DUI and requested that defendant submit to chemical testing for alcohol. Defendant refused the officer's request for chemical testing. Defendant was later charged with DUI under section 11-501(a)(2) of the Illinois Vehicle Code (Code). 625 ILCS 5/11-501(a)(2) (West 2010).
¶ 9 Registered nurse Katen Hertzberg treated defendant at the hospital. Hertzberg testified that defendant smelled of alcohol and admitted to consuming alcohol. She testified that, in the regular course of providing medical treatment, she ...