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People v. Weidner

Court of Appeals of Illinois, Fifth District

March 6, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
HOWARD NEIL WEIDNER, Defendant-Appellant

Appeal from the Circuit Court of Clay County. No. 11-CF-53. Honorable Michael D. McHaney, Judge, presiding.

Affirmed.

SYLLABUS

In a prosecution for aggravated driving under the influence of alcohol where defendant was transported to a hospital to have his blood drawn for the purpose of blood-alcohol analysis after the arresting officer discovered that the Breathalyzer machine at the county jail was not usable, defendant's conviction was upheld over his contention that the results of the analysis were not admissible due to the presence of alcohol in the disinfectant in the kit used in obtaining defendant's blood sample, since the record showed defendant's blood was drawn using a kit provided to the hospital by the Department of State Police, the directions included in the kit were followed, " proper medical techniques" were used, and testing by the State Police determined that the alcohol in the kit's disinfectant solution would not affect the validity of the test results.

For Appellant: Lou J. Viverito, Taylor Law Offices, P.C., Effingham, IL.

For Appellee: Hon. Marilyn Brant, State's Attorney, Clay County Courthouse, Louisville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosector, Mt. Vernon, IL.

JUSTICE CATES delivered the judgment of the court, with opinion. Honorable Thomas M. Welch, P.J., and Honorable Bruce D. Stewart, J., Concur.

OPINION

[¶1] Following a stipulated bench trial, the defendant, Howard Neil Weidner, was found guilty of aggravated driving while under the influence of alcohol in violation of section 11-501(d)(1)(F) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(d)(1)(F) (West 2010)), and he was sentenced to a three-year term of imprisonment. On appeal, the defendant contends that evidence of his blood-alcohol concentration

Page 815

was inadmissible at trial absent a proper foundation establishing that his blood samples were collected using " proper medical technique" as required in section 11-501.2 of the Code (625 ILCS 5/11-501.2 (West 2010)) and section 1286.320(c) of Title 20 of the Illinois Administrative Code (20 Ill. Adm. Code 1286.320(c), amended at 31 Ill. Reg. 15107, 15111 (eff. Oct. 29, 2007)). We affirm.

[¶2] On July 9, 2011, at approximately 8:15 p.m., the defendant was involved in a motor vehicle accident near the intersection of State Highway 50 and Olive Street in Clay County, Illinois. The defendant was driving his car south on Olive Street and pulled out in front of a motorcycle traveling east on Highway 50. The motorcycle struck the front quarter panel on the passenger side of the defendant's car. Ray Brooks, the motorcyclist, was thrown from the motorcycle onto the pavement upon impact. He sustained severe injuries to his head, abdomen, and pelvis. He was transported by ambulance to Clay County Hospital. He passed away a few hours later as result of the internal injuries he sustained in the accident.

[¶3] Officers from the Illinois State Police and the Flora police department responded to the accident scene. A state trooper interviewed the defendant at the scene. The trooper noted that the defendant had glossy, bloodshot eyes and smelled strongly of an alcoholic beverage. The trooper asked the defendant if he had been drinking. The defendant replied that he drank four or five beers while driving a four-wheeler that day. After undergoing field sobriety tests, the defendant was cited for driving under the influence of alcohol (DUI) and for failure to yield at an intersection. The trooper transported the defendant to Clay County jail for a breath test. When they arrived, the trooper discovered that the Breathalyzer machine was not usable. After consulting with superiors, the trooper transported the defendant to Clay County Hospital to have blood drawn for purposes of a blood-alcohol analysis.

[¶4] Wayne Woods, a paramedic employed by Clay County Hospital, drew the defendant's blood in the presence of the trooper, using a DUI kit that was provided to the hospital by the Department of State Police. The blood was drawn at 10:16 p.m., about two hours after the accident, and collected in two tubes supplied in the DUI kit. The tubes were labeled, placed in a sealed package, and transported to the Illinois State Police Forensic Science Laboratory (Police Lab) for testing. The results showed that at the time the samples were collected, the defendant had a blood-alcohol concentration of 0.151 g/dL (grams per deciliter). A forensic scientist, employed by the Police Lab, calculated that the defendant's blood-alcohol concentration was between 0.171 g/dL and 0.191 g/dL at the time of the accident.

[¶5] The defendant was charged with two counts of aggravated DUI. Count I alleged that the defendant, while his blood-alcohol concentration was 0.08 or more, and while driving a motor vehicle, was involved in a motor vehicle accident resulting in the death of Ray D. Brooks, in violation of section 11-501(a)(1) of the Code (625 ILCS 5/11-501(a)(1) (West 2010)), and that such violation was the proximate cause of Brooks's death, in violation of section 11-501(d)(1)(F), a Class 2 felony. Count II alleged that the defendant, while under the influence of alcohol, and while driving a motor vehicle, was involved in a motor vehicle accident resulting in the death of Ray D. Brooks, in violation of section 11-501(a)(2) of ...


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