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People v. Hamerlinck

Court of Appeals of Illinois, First District, Fourth Division

March 29, 2018

TRENT HAMERLINCK, Defendant-Appellant.

          Appeal 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 it.

         ¶ 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.

         ¶ 5 BACKGROUND

         ¶ 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 revoked license.

         ¶ 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 deciliter.
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."

         Thus, 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[1] 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 properly."

         ¶ 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 mg/dL."

         ¶ 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 concerning it:

"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, Judge.
[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 ...

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