Appeal from Circuit Court of Champaign County. No. 11CF880. Honorable John R. Kennedy, Judge Presiding.
Reversed and remanded.
In a prosecution for aggravated driving with a drug, substance, or compound in defendant's breath, blood or urine arising from a motorcycle accident in which he struck a fellow rider where defendant consented to giving blood and urine samples to a nurse due to the serious injuries that were involved and the results were positive for benzoylecgonine, a metabolite of cocaine, defendant's conviction was reversed and the cause was remanded for a new trial, since the trial judge, in answering the jury's question as to whether benzoylecgonine qualified as a substance, basically directed a verdict for the State when he incorrectly told the jury that, in conflict with the evidence, " cocaine metabolite qualifies as a drug, substance or intoxicating compound," rather than responding, as both the State and defendant agreed, that the jury should rely on the evidence it heard during the trial.
James A. Martinkus (argued), of Erwin, Martinkus & Cole, Ltd., of Champaign, for appellant.
Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Aimee Sipes Johnson (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.
[¶1] In September 2013, a jury convicted defendant, Dana R. Hasselbring, of aggravated driving with a drug, substance, or compound in his breath, blood, or urine. 625 ILCS 5/11-501(a)(6), (d)(1)(F) (West 2010). In December 2013, the trial court sentenced defendant to 11 years' imprisonment.
[¶2] Defendant appeals, arguing (1) his prosecution was barred by the compulsory joinder provisions of sections 3-3(b) and 3-4(b)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/3-3(b), 3-4(b)(1) (West 2010)); (2) the test results of his blood and urine samples should have been suppressed
where no probable cause existed to justify the warrantless search; (3) the trial court erred in permitting testimony from the State's expert which was not properly disclosed and for which she was not properly qualified; (4) the court erred in refusing defendant's tendered jury instructions; (5) the court erred in the manner it answered the jury's question during deliberations; (6) the evidence was insufficient to convict him where he did not have a controlled substance in his body at the time of the accident; and (7) he received an excessive sentence. We reverse defendant's conviction and remand for a new trial.
[¶3] I. BACKGROUND
[¶4] On the evening of September 18, 2010, defendant and a friend, Eddie Piat, were riding their motorcycles with a group of other riders. Nicholas Vandervinne, an eyewitness who testified at trial, had stopped for a red light at an intersection at approximately 8 p.m. on the night of the incident. He observed a group of six or seven motorcycles in the other lane. When the light turned green, the motorcycles in the front of the group " took off like a flash." Shortly thereafter, Vandervinne observed sparks and smoke ahead of him. Defendant had collided with Piat. Vandervinne did not see the collision.
[¶5] Officer Brian Bednarz, a certified accident reconstructionist with the Champaign police department, estimated Piat's motorcycle was traveling between 57 and 79 miles per hour at the time of impact. He also estimated defendant was traveling between 60 and 82 miles per hour when he collided with Piat.
[¶6] Following the accident, both Piat and defendant were taken to the hospital. Piat arrived in critical condition, having sustained a serious head injury as a result of the accident. Neither defendant nor Piat was wearing a helmet.
[¶7] City of Champaign police officer Brian Greear interviewed defendant at the hospital as part of his investigation of the accident. Defendant told Greear he and Piat were riding in the same lane and had stopped at the red light. When the light changed, they both accelerated from the intersection. After two or three blocks, defendant turned his head to look behind him to check to see if the other lane was open before changing lanes. When he looked back, Piat's motorcycle had rapidly decelerated in front of him. Defendant attempted to apply the brakes but collided with Piat's monocycle.
[¶8] Officer Greear then issued defendant two citations. One of the citations charged defendant with failure to reduce speed to avoid an accident. The other citation was for not having a motorcycle license. According to Greear, other than defendant's " questionable driving behavior," " there was no actual smell of alcohol or any other signs of impairment." However, because the accident resulted in a serious injury, Greear read defendant the statutory " Warning to Motorist" and asked him to provide a sample of his urine and blood for testing. Defendant consented and a nurse collected the samples. The only positive test result was for benzoylecgonine, a metabolite of cocaine, which was found in both defendant's blood and urine. A metabolite is a byproduct remaining in the body after metabolism has taken place.
[¶9] On October 21, 2010, the trial court entered guilty findings in both traffic cases (Champaign County case Nos. 10-TR-19799, 10-TR-19800), apparently following a bench trial. (However, the record is not clear on how those cases were resolved, i.e., by plea or bench trial.)
[¶10] Piat remained in the hospital for 45 days following the accident before dying on November 1, 2010. According to Doctor
Nicole Howell, the pathologist who performed the autopsy, Piat died from respiratory failure caused by the brain injury he sustained in the accident.
[¶11] On June 3, 2011, the State charged defendant with aggravated driving with a drug, substance, or compound in his breath, blood, or urine (625 ILCS 5/11-501(a)(6), (d)(1)(F) (West 2010) (the aggravating factor being Piat's death). The State alleged defendant " drove or was in physical control of a motor vehicle at a time when there [was] any amount of a drug, substance, or compound in [his] breath, blood, or urine resulting from the unlawful use or consumption of a controlled substance listed in the Illinois Controlled Substances Act, and was involved in a motor vehicle accident that resulted in the death of Eddie Piat and the violation was a proximate cause of the death."
[¶12] Prior to trial, defendant filed a number of motions to dismiss, all of which the trial court denied. Defendant sought appellate review of those denials through an interlocutory appeal to this court. However, on March 8, 2013, we dismissed that interlocutory appeal for lack of appellate jurisdiction because defendant failed to file a timely notice of appeal. People v. Hasselbring, 2013 IL App. (4th) 120636-U. The matter then proceeded to trial in September 2013.
[¶13] During trial, the State's expert, Tara Kerns, testified, " Benzoylecgonine is a cocaine metabolite. That means that at some point cocaine was ingested. It breaks down into metabolites. One of them is Benzoylecgonine, which we test for. It is similar to digestion. When you ingest food, it has to break down into other substances. Drugs are the same way." When asked what the presence of benzoylecgonine in defendant's blood and urine indicated, Kerns responded, " It just told me that cocaine was ingested within the last 24 to 28 hours." Kerns testified cocaine is a Schedule II controlled substance. On cross-examination, the following colloquy took place:
" Q. [DEFENSE COUNSEL:] You found no cocaine in either the blood or urine of [defendant,] is that correct?
Q. The only thing you found was Benzoylecgonine, which is a metabolite; correct?
Q. It's not a controlled substance; is it?
A. I'm not sure about that.
Q. You don't know if--
A. Benzoylecgonine is not listed as a controlled substance, but--
Q. Yeah, Okay. So--
A. --it can only come from cocaine.
Q. So it's not listed as [a] controlled substance in the very statute we're ...