Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 12 CR 21868 The
Honorable Jeffrey L. Warnick, Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice McBride
concurred in the judgment and opinion.
1 Defendant Trent Hamerlinck was convicted after a bench
trial of two counts of aggravated driving under the influence
of alcohol (DUI). The two counts charged different minimum
levels of blood-alcohol content (BAC). After considering
factors in aggravation and mitigation including
defendant's four prior DUI convictions, the trial court
sentenced him to two concurrent 5-year sentences with the
Illinois Department of Corrections (IDOC).
2 On this appeal, defendant claims, first, that the trial
court erred in admitting his hospital records as evidence of
his BAC level. Although defendant concedes on appeal that he
failed to raise this issue in the court below and thus
forfeited this issue for our review, he asks us to review the
issue under the plain error doctrine, which permits a
reviewing court to review unpreserved errors under certain
circumstances. People v. Piatkowski, 225 Ill.2d 551,
565 (2007). However, as we explain in more detail below, we
do not find this claim persuasive.
3 Second, defendant claims, and the State agrees, that his
aggravated DUI convictions violate the one act, one crime
rule since they are based on the same physical act of
driving. People v. Artis, 232 Ill.2d 156, 165 (2009)
("Multiple convictions are improper if they are based on
precisely the same physical act."). Count I charged a
BAC level of over 0.08, while count III charged a BAC level
of over 0.16. Thus, we vacate his conviction and sentence on
count I. In re Samantha V., 234 Ill.2d 359, 375
(2009) (the trial court violated the one act, one crime rule
when it found defendant guilty of two counts of aggravated
battery based on the same battery). Neither defendant nor the
State asks us to remand for resentencing, so we do not order
4 For the following reasons, we affirm defendant's
conviction and sentence on count III for aggravated DUI with
a BAC level of over 0.16.
6 Since the only issue on appeal concerns the admission of
defendant's hospital records as proof of his BAC level,
we focus on the facts surrounding this single issue.
7 This case arises from a motor vehicle accident at the
intersection of Dempster Street and Shermer Road in Morton
Grove at 11:30 p.m. on July 5, 2012. The collision occurred
between a silver Lexus and a blue Nissan Rogue. Although
defendant argued in the court below that he was a passenger
in the Lexus rather than its driver, he does not raise that
issue again on appeal. Irina Tsyrkina, the driver of the
Nissan, sustained injuries to her legs as a result of the
accident. After the accident, defendant was charged with
multiple counts of driving while intoxicated and driving on a
8 Prior to trial, the State filed a motion in limine
asking the trial court to take judicial notice of several
facts, specified below. On the record, the prosecutor stated
that he had provided a copy of the State's motion to
defense counsel, who confirmed receipt. Defense counsel
added, "there is no objection to that, Judge." The
trial court stated, "So the Court will take judicial of
that as an agreement by the parties as well."
9 The State's motion stated in relevant part:
"2. Defendant's blood was taken at Lutheran General
Hospital Emergency Room on July 6, 2012.
3. The People expect that the evidence will show that
defendant's ethanol in serum blood was 306 milligrams per
4.Pursuant to the Illinois Administrative Code and People
v. Olson, 388 Ill.App.3d 704 (2nd Dist. 2009), the
People ask this Court to take judicial notice of the
conversion of serum blood to whole blood. Section 1286.40 of
chapter 20 of the Administrative Code instructs that
'[t]he blood serum plasma alcohol concentration result
will be divided by 1.18 to obtain a whole blood
equivalent.' 20 Ill. Adm Code Section 1286.40.
5. Using the serum to whole blood conversion described in the
Administrative Code, the People ask this Court to take
judicial notice that defendant's whole blood equivalent
result is .259 grams per deciliter.
WHEREFORE, the People request that this Honorable Court,
pursuant to our higher court's rulings, take judicial
notice of the converted whole blood amount at trial."
per paragraph 5, the State asked the trial court "to
take judicial notice that defendant's" ethanol in
whole blood was ".259 grams per deciliter, " and
the trial court took judicial notice and found that it was an
agreement between the parties as well.
10 At the start of the bench trial, the prosecutor stated in
its opening, without objection, that defendant had his blood
drawn at the hospital immediately after the accident and the
result showed a 0.259 BAC. In his opening, defense counsel
argued primarily that the State lacked proof that defendant
was the driver, as opposed to a passenger, of the Lexus.
Defense counsel further stated that "[t]he rest is going
to be evidence of what examination was conducted on our
client, if and when a blood draw was drawn, if it was drawn
11 Ralph Nartatez testified that he was a registered nurse
and had been employed in the emergency room of Lutheran
General Hospital for 11 years. In the early morning hours of
July 6, 2012, when defendant was admitted, Nartatez was
"the charting nurse" who, in fact, documented his
treatment. After Nartatez identified defendant in court, he
testified that the records would aid his testimony in
recalling "the chain" of events. The prosecutor
then moved to admit defendant's medical records as a
business record, which were marked as People's Exhibit
No. 1. The trial court asked defense counsel, "Any
objection?" Counsel replied, "Judge, no. I believe
the foundation was laid." The trial court then stated,
"Very well. Okay. They are so admitted."
12 Nartatez testified that, after defendant was admitted, he
noticed defendant had a strong odor of alcohol on his breath
and his speech was slurred. Defendant admitted consuming
Percocet. Nartatez testified that a treating doctor ordered a
blood draw done, and Nartatez was present when Kim Conway
Cisneros drew the blood from defendant. Nartatez testified
that he observed Cisneros "label it, " which
included recording the date and time. Cisneros then sent it
to a lab in the hospital by means of "a tube
station." Nartatez testified, without objection, that
the results of defendant's blood test were
"memorialized and recorded" in his medical records,
specifically, in People's Exhibit No. 3, which was page
63 of the medical records already admitted as part of
People's Exhibit No. 1.
13 People's Exhibit No. 3, or page 63, is a continuation
from page 62 of a list of "lab results" labeled
with the following date and time: "07/06/12 00.20."
Page 63 contains defendant's name, sex, and date of birth
and states, among other things, "Alcohol, Serum 306
14 Nartatez testified as follows concerning People's
Exhibit No. 3, and the parties and the court also discussed
the scope of the prior stipulation. Since it is primarily the
admission of People's Exhibit No. 3 that defendant
contests on appeal, we provide Nartatez's testimony
"ASSISTANT STATE'S ATTORNEY [(ASA)]: I'm going
to show you what has been marked as People's Exhibit 3.
What is that?
NARTATEZ: That is the result of the serum alcohol.
* * *
[ASA]: And based upon the testing, what was the alcohol
concentration of the blood sample that the defendant gave on
July 6th of 2012 in terms of grams per alcohol per 100
millimeters of blood.
[ASA]: Your Honor, I would ask that-People's 1 has
already been admitted into evidence, which is the medical
records. I would ask that People's 3 be put in as just
the lab, which is part of People's 1.
THE COURT: Any objection?
DEFENSE COUNSEL: Judge, I object on foundational grounds at
this point, yes, I do, Judge. If I could be heard.
THE COURT: You can be heard.
DEFENSE COUNSEL: And, again, we could just clarify this. The
result that counsel asked was in millimeters. That is not the
case in this-this result is not entered in millimeters,
[ASA]: I'll rephrase, Judge. I apologize.
DEFENSE COUNSEL: No, that's all right. I mean, I just
want to do this---
THE COURT: That's a proper objection. That's exactly
right. Thank you.
DEFENSE COUNSEL: I have one more as well, but go ahead.
[ASA]: Let me just rephrase. It was in terms of ...