Appeal from the Circuit Court of Kane County. No. 11-CF-1221. Honorable Marmarie J. Kostelny, Judge, Presiding.
In defendant's prosecution for aggravated driving under the influence, the probative value of the retrograde extrapolation calculation used to establish her blood alcohol concentration at the time she was arrested was outweighed by the prejudicial effect of that evidence, and, therefore, her conviction was reversed and the cause was remanded for a new trial, notwithstanding the premise that a person's BAC determined by a breath or blood test at a particular time may be extrapolated back to the time of an earlier occurrence when the person's BAC was higher, since many factors must be considered to make such a calculation reliable, and in defendant's case, a " big assumption" was made that defendant was eliminating alcohol when she was given a breath test, several relevant factors were not considered, the State's expert admitted he was unaware of many factors necessary to determine whether defendant was eliminating alcohol, and, under the circumstances, the calculation made in defendant's case was unreliable.
Alan D. Goldberg and Patrick F. Cassidy, both of State Appellate Defender's Office, of Chicago, for appellant.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Colleen P. Price, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant, Chrystal L. Floyd, was convicted of aggravated driving under the influence (DUI) pursuant to section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2010)) and resisting arrest (720 ILCS 5/31-1(a) (West 2010)). During the trial, the State introduced expert witness testimony on a " retrograde extrapolation" calculation in an attempt to demonstrate that defendant's blood alcohol concentration (BAC) was at or above 0.08 at the time of her arrest. Retrograde extrapolation is premised on the theory that a person's BAC, derived from a breath or blood test at a particular time, can be extrapolated back to an allegedly higher BAC that existed at the time of a prior incident. The State also introduced evidence of other crimes that occurred before defendant allegedly committed the offense of aggravated DUI.
[¶2] On appeal, defendant contends that the trial court erred by (1) allowing the expert witness's testimony on retrograde extrapolation when the expert did not have information necessary to conduct a reliable calculation; (2) allowing the State to admit other-crimes evidence that was highly prejudicial, but minimally relevant; (3) allowing testimony, which lacked foundation, that defendant failed a horizontal gaze nystagmus (HGN) test; and (4) failing to instruct the jury that it could not draw a negative inference from the State's video recording of defendant's field sobriety tests, which the State failed to produce. For the following reasons, we reverse defendant's DUI conviction and remand for a new trial.
[¶3] The record reflects that, on June 16, 2011, defendant was in the parking lot at the Dolphin Cove Family Aquatic Center in Carpentersville. At approximately 7:30 p.m., defendant made a 911 call via the OnStar system in her vehicle. Defendant told the 911 operator that she had a " violent boyfriend" who wanted to hit and rob her. Defendant can be heard on the recording telling a man that she had been " drinking since I've been here." Defendant then told the operator that a man who made her perform oral sex on him was sitting in her vehicle and that " he needs to get the [expletive] out of my car." Officer David Rowley was dispatched to the Dolphin Cove parking lot. Upon arriving, he observed defendant and a man arguing outside of a vehicle. Because Rowley believed that defendant was intoxicated, he told her not to drive. At that point, defendant and the man went separate ways, and Rowley left the scene.
[¶4] Thereafter, Mike Eschenbach, the manager of Dolphin Cove, noticed that defendant was back inside her vehicle. Defendant was alone, sitting in the passenger seat, and listening to loud music. Eschenbach observed a man approach defendant's vehicle, and the man then " tossed something at the vehicle, gave it a light shake, and walked away." Eschenbach left the Dolphin Cove parking lot at approximately 8:30 p.m.
[¶5] At around 8:50 p.m., Don Azerela, the building supervisor, witnessed a man approach defendant's vehicle. About a
minute later, Azerela heard the man pounding on defendant's vehicle and saw the vehicle shake. Azerela moved closer to the parking lot and was joined by Scott McManus. As the man was shaking the vehicle, Azerela and McManus witnessed the vehicle's brake lights come on and heard the engine start. A chase ensued and McManus called 911. Azerela estimated that the vehicle reached a speed of 25 miles per hour during the chase. When the man ran toward a gas station, defendant's vehicle turned back and returned to its original parking space. The police arrived about a minute later.
[¶6] Officer Robert Drews arrived at the scene and observed skid marks leading to the parked vehicle. The key was in the ignition, but the engine was not running, and defendant appeared to be sleeping in the driver's seat. Drews knocked on the window, and when defendant opened the vehicle's door, Drews could smell a " moderate" odor of alcohol. According to Drews, defendant's speech was " good," and her eyes were not bloodshot or glassy. Defendant told Drews that she had not been driving, because she was too drunk to drive. Drews advised defendant that she needed to perform sobriety tests, but defendant refused and began to walk away. Drews attempted to arrest defendant, but she ...