People v. Olsen

• Decision Date: 11 February 2009
• Docket Number: No. 2-07-0894.,2-07-0894.
• Citation: 903 N.E.2d 778
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger W. OLSEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

903 N.E.2d 778

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger W. OLSEN, Defendant-Appellant.

No. 2-07-0894.

Appellate Court of Illinois, Second District.

February 11, 2009.

Michelle L. Moore, Law Office of Michelle L. Moore, Wheaton, IL, for Appellant.

Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, IL, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Mary Beth Burns, State's Attorneys Appellate Prosecutor, Elgin, IL, Steven J. Biagi, Assistant State's Attorney, Rockford, IL, for Appellee.

Justice BOWMAN delivered the opinion of the court:

Following a bench trial, defendant, Roger W. Olsen, was convicted of driving with a blood alcohol level of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2004)). On appeal, defendant argues that: (1) the State failed to lay a proper foundation for the admission of his blood test results; (2) the trial court erred in taking judicial notice of Title 20, section 1286.40, of the Illinois Administrative Code (Administrative Code) (20 Ill. Adm.Code § 1286.40 (Conway Greene CD-ROM June 2001)), which provides a conversion factor for blood serum alcohol concentration to whole blood alcohol concentration; and (3) he was not proven guilty beyond a reasonable doubt. We affirm.

I. BACKGROUND

Defendant was charged initially in November 2004 with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2004)) (count I) and failure to yield the right-of-way when turning left (625 ILCS 5/11-902 (West 2004)) (count II). On January 19, 2005, he filed a motion to dismiss the summary suspension of his driver's license, and the trial court granted the motion the following day.

On March 17, 2005, the State charged defendant with driving with a blood alcohol level of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2004)) (count III). On May 18, 2005, defendant filed a motion to quash his arrest and suppress evidence, alleging that a police officer arrested him without probable cause to believe that he was under the influence of alcohol. The trial court granted the motion on February 24, 2006, though it also gave the State leave to subpoena defendant's medical records. The trial court subsequently denied the State's motion to reconsider its ruling.¹

On February 5, 2007, the State filed a motion in limine for the trial court to take judicial notice of Title 20, section 1286.40, of the Administrative Code. The trial court granted the motion on February 9, 2007.

Defendant's bench trial took place on February 13, 2007. Officer John Williams of the Elk Grove Village police department testified as follows. On November 5, 2004, at about 7:25 p.m., he was dispatched to a traffic accident. Defendant was sitting in the driver's seat of one of the cars involved, which had heavy front-end damage. The second car had heavy damage on the front passenger side. Officer Williams asked defendant to exit his car and walk about 20 feet to the side of the road. Defendant did not have any difficulty exiting the car, and Officer Williams did not notice anything unusual about the way he walked. Defendant said that he had been waiting in the middle of the intersection to make a left turn, and he did not see the other car. He also said that the other car must have been speeding and run a red light.

Defendant's breath had a strong odor of alcohol; his eyes were red, bloodshot, and somewhat glossy; he had a cut on his forehead; and he seemed somewhat confused. Defendant said that he had had two alcoholic drinks earlier that day. Due to the cut on defendant's face, Officer Williams did not ask him to take field sobriety tests. Instead, he called the paramedics, who transported defendant to the hospital. Officer Williams also went to the hospital and talked to defendant in the emergency room. Officer Williams left when defendant was admitted to the hospital, and he never asked hospital personnel to draw blood from defendant. At trial, Officer Williams opined that defendant failed to yield the right-of-way when making a left turn and that he was under the influence of alcohol.

Nicole Beatingo provided the following testimony. She was the manager of medical records and data retrieval at Alexian Brothers Medical Center. She had been working at the hospital for eight years and had held her current position for slightly under one year. Beatingo was in charge of the hospital's clerical section, which included "record retrieval, assembly, analysis and physician completion." She was familiar with the hospital's medical records, and she identified exhibit 1 as lab test results from defendant's medical file. The record was prepared by hospital personnel. It looked like normal lab documents from Alexian Brothers; it was "what the lab results look like when [they are] done in [Alexian Brothers'] facility and [are] interfaced into this electronic record." The record indicated that defendant came in on November 5, 2004, at 8 p.m., and the lab test results were entered into the chart at 9:01 p.m. The record was kept in the regular course of hospital business. The test result for defendant's alcohol ethanol serum was .190. In the normal course of business, the hospital's lab tested all the blood. However, when Beatingo was asked if she knew "where the blood in this case was sent to be tested," she replied in the negative.

The lab test results listed defendant's "ED physician," who was the doctor who saw him in the emergency room. The document also indicated that Dr. Thomas Synder reviewed the results, though it did not show who ordered the test. Beatingo identified exhibit 2 as another page from defendant's emergency room record that was kept in the ordinary course of business. It consisted of "nurses' notes * * * as well as some physician documentation." The trial court allowed testimony on exhibit 2 for the limited purpose of establishing the foundational requirements that defendant's blood sample was taken for the purpose of medical treatment and relied upon by the doctor in treating defendant. Beatingo testified that the only physician listed in exhibit 2 as caring for defendant was Dr. Thomas Synder, the same doctor noted on the lab report. Based on the reports, Beatingo did not know who had ordered the blood test.

The State moved to admit exhibits 1 and 2, and defendant objected based on a lack of foundation. He argued that there was no testimony as to where the lab tests were performed or who ordered the tests and that exhibit 2 was a confidential medical record not subject to the statutory exception for blood test results.

The trial court admitted the exhibits over defendant's objection, stating as follows. While Beatingo testified on the one hand that she did not know where defendant's blood was tested, she also testified that the record was of hospital lab test results. Still, the real question was "whether these are, in fact, medical records from Alexian Brother Medical Center, medical records generated by care and treatment of the person in question in the emergency room and in the course of treatment at that emergency room." Here, the records showed that defendant was a patient in the emergency room and that a blood sample was obtained from him and sent to the lab. Exhibit 2 indicated that this was done during the course of treating defendant. It showed that defendant was under the care of Dr. Snyder and that a nurse obtained the blood sample and sent it to the lab. The records also showed that the results were reviewed by Dr. Synder about 40 minutes after the sample was obtained. The records appeared to be reliable and to satisfy the statutory foundational requirements for medical records and lab test results.

Defendant further objected to the court taking judicial notice of Title 20, section 1286.40, of the Administrative Code, arguing that the Department of State Police lacked the statutory authority to implement the regulation. The trial court overruled defendant's objection, largely based on language in People v. Thoman, 329 Ill.App.3d 1216, 1220, 264 Ill.Dec. 334, 770 N.E.2d 228 (2002), which indicated that section 1286.40 was subject to judicial notice.

The trial court granted defendant's motion for a directed finding on counts I and II. After the defense rested without providing additional evidence, the trial court found defendant guilty of count III. Defendant filed a motion for a new trial on March 13, 2007, which the trial court subsequently denied. It sentenced him to two years' conditional discharge and ordered alcohol counseling and fees. Defendant timely appealed.

II. ANALYSIS

A. Admissibility of Blood Test Results

Defendant first argues that the State failed to lay a proper foundation for the admission of his blood test results under section 11-501.4 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.4 (West 2006)). Evidentiary rulings are within the trial court's discretion and will not be reversed absent a clear abuse of discretion. People v. Wheeler, 226 Ill.2d 92, 132, 313 Ill.Dec. 1, 871 N.E.2d 728 (2007). To the extent that defendant's argument implicates the requirements of section 11-501.4, it presents a question of statutory interpretation, which we review de novo. People v. Caballero, 228 Ill.2d 79, 82, 319 Ill.Dec. 364, 885 N.E.2d 1044 (2008). Finally, we will accept any factual findings made by the trial court unless they are against the manifest weight of the evidence. See People v. Montgomery, 373 Ill.App.3d 1104, 1122, 313 Ill.Dec. 420, 872 N.E.2d 403 (2007). Section 11-501.4 provides in relevant part:

"(a) Notwithstanding any other provision of law, the results of blood tests performed for the purpose of determining the content of alcohol * * * of an individual's blood conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for...