Appeal from the Circuit Court of Du Page County. No. 12-DT-1663. Honorable Richard D. Russo, Judge, Presiding.
Where defendant was initially charged with driving under the influence of alcohol based on impairment under section 11-501(a)(2) of the Illinois Vehicle Code and then with DUI based on a blood-alcohol concentration of 0.08 or more under section 11-501(a)(1) several months later and after the expiration of the 160-day speedy-trial period, the dismissal of the DUI charge based on a BAC of 0.08 or more pursuant to the violation of defendant's right to a speedy trial was upheld, since the charge under section 11-501(a)(1) was a new offense, the compulsory-joinder statute applied, the delays attributable to defendant on the charge under section 11-501(a)(2) did not apply to defendant on the charge under section 11-501(a)(1), and the charge under section 11-501(a)(1) was not timely brought to trial.
Robert B. Berlin, State's Attorney, of Wheaton (Lisa A. Hoffman and Thomas Minser, Assistant State's Attorneys, of counsel), for the People.
Donald J. Ramsell, of Ramsell & Associates, LLC, of Wheaton, for appellee.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hudson concurred in the judgment and opinion.
[¶1] The trial court granted the motion of defendant, Richard J. Thomas, to dismiss, on speedy-trial grounds, count IV of the charges against him, which count had been filed three days before defendant's scheduled jury trial. The State now appeals from the trial court's denial of the State's motion to reconsider that dismissal. We affirm.
[¶2] I. BACKGROUND
[¶3] Defendant was involved in a motor vehicle collision on the evening of May 15, 2012, and taken by ambulance to Hinsdale Hospital. Upon his release from the hospital that night, he was arrested and charged with two traffic offenses and one count of driving under the influence of alcohol (DUI) (impairment) pursuant to section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2010)).
[¶4] Defendant filed a motion to quash his arrest and suppress evidence, on which a hearing was held on November 28, 2012. During the course of that hearing, Deputy Ian Northrup of the Du Page County sheriff's office testified that while defendant was still at the accident site Northrup had formed the opinion that defendant was under the influence of alcohol. At the hospital Northrup was told by an emergency room nurse that defendant's blood had been drawn for treatment purposes and that defendant had a " whole blood serum" blood-alcohol concentration (BAC) of 0.159. Northrup took this to mean " serum" and not " whole blood" ; therefore, he calculated defendant's whole blood BAC to be 0.134. After defendant was released, Northrup requested that defendant submit to a blood draw, but defendant refused. Northrup then placed defendant under arrest.
[¶5] The trial court denied the motion to quash and suppress the following day, November 29, 2012. On that same day, the trial court denied defendant's motion to quash a subpoena duces tecum regarding emergency and treatment records from Hinsdale Hospital and the Pleasantville fire department, and these records were tendered to the State. Defendant, who was not incarcerated, filed a demand for a speedy trial pursuant to section 103-5(b) of the Code of Criminal Procedure of 1963 (speedy-trial act) (725 ILCS 5/103-5 (West 2010)), and the case was set for a bench trial on January 9, 2013.
[¶6] After two continuances, the matter was set, now for a jury trial, on June 10, 2013. At a pretrial conference held on June 7, the State sought leave to file an information charging defendant with DUI (BAC of 0.08 or more) pursuant to section 11-501(a)(1) of the Vehicle Code (625 ILCS 5/11-501(a)(1) (West 2010)). After hearing argument, the trial court granted leave to file the information as count IV. Defendant immediately filed a motion to dismiss that count based on a violation of his right to a speedy trial. The trial court heard argument on the motion, but no new
evidence was presented. The court then took the issue under advisement.
[¶7] On June 10, the trial court granted defendant's motion to dismiss. The court ruled that the DUI counts (I and IV) arose from the same act and were subject to compulsory joinder pursuant to section 3-3 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/3-3 (West 2010)). Further, pursuant to People v. Williams, 204 Ill.2d 191, 788 N.E.2d 1126, 273 Ill.Dec. 250 (2003), although defendant's speedy-trial demand applied to the later-filed count IV, any time delays attributable to defendant on the initial charges were not attributable to defendant regarding count IV. Thus, as count IV was filed more than 160 days after defendant filed his demand for a speedy trial, count IV was not timely brought to trial. The State immediately filed a notice of appeal on that day, and a two-week status date was set for June 24.
[¶8] On June 19, the State motioned up the case and filed motions to dismiss its appeal pursuant to Illinois Supreme Court Rule 309 (eff. Feb. 1, 1981) and to reconsider the dismissal of count IV. The trial court noted that Rule 309 allows the trial court to dismiss an appeal " [b]efore the record on appeal is filed in the reviewing court." Ill. S.Ct. R. 309 (eff. Feb. 1, 1981). However, the court file was empty and there was nothing to indicate to the trial court that the record had not been filed with the ...