People v. Bair

379 Ill. App. 3d 51
CourtAppellate Court of Illinois
DecidedFebruary 4, 2008
DocketNo. 1-06-2656
StatusPublished
Cited by10 cases

This text of 379 Ill. App. 3d 51 (People v. Bair) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bair, 379 Ill. App. 3d 51 (Ill. Ct. App. 2008).

Opinion

JUSTICE ROBERT E. GORDON

delivered the opinion of the court:

After a bench trial on March 28, 2006, defendant Maren Bair was convicted of driving under the influence of alcohol (DUI) and sentenced on September 7, 2006, to 12 months’ supervision. Defendant appeals on the ground that the doctor failed to disinfect her skin prior to drawing a blood sample, as then required by the Illinois Administrative Code (20 Ill. Adm. Code §1286.320(c), amended at 28 Ill. Reg. 10017, eff. June 30, 2004). For the reasons discussed below, we affirm.

BACKGROUND

Defendant was charged with driving a motor vehicle while the alcohol concentration in her blood or breath was 0.08 or more, in violation of section 11 — 501(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11 — 501(a)(1) (West 2004)). On March 28, 2006, defendant waived her right to a jury trial both in open court and in writing, and the case proceeded to a bench trial. The State’s first witness, Neal Se-mar, testified that, at approximately 6:20 a.m. on August 27, 2005, Se-mar was the sole passenger in a vehicle driven by defendant on Route 290 in Chicago, when the vehicle became involved in an accident.

The State’s second witness, Robert Goodman, testified that at approximately 6:20 a.m. on August 27, 2005, he was driving a tractor-trailer truck eastbound on Route 290 in Chicago, when he observed an accident. Law enforcement personnel were on the scene and had blocked off the center lane and the right lane. As a result, the traffic was forced to merge into the left lane while passing the accident. After Goodman drove past the accident, he moved his truck into the right lane.

Goodman further testified that he observed a light-colored Saturn automobile starting to move from the left lane into the center lane. A dark automobile in the center lane tapped the bumper of the Saturn, and the Saturn went into a 360-degree spin. The Saturn “came across all the lanes of traffic,” hit the concrete barrier wall toward the passenger’s side of Goodman’s truck and then “flipped” into Goodman’s lane of traffic, right in front of Goodman’s truck. Goodman’s truck then struck the “upside-down” Saturn, which “went flying down the road.”

Goodman further testified that he stopped his truck and approached the Saturn. A young male passenger, later identified as Se-mar, exited the Saturn and then helped a woman, later identified as defendant, out of the Saturn. Emergency personnel at the scene of the first accident arrived quickly at the scene of the Saturn’s accident.

Illinois State Trooper Bergeman testified as follows. On August 27, 2005, at 6:20 a.m., he was on duty and assigned to the Eisenhower Expressway, Interstate 290, in Chicago, when he received a call concerning a rollover accident. After he arrived at the accident scene, he observed a Saturn resting on its roof, a parked tractor-trailer truck, several other vehicles and a young woman, later identified as defendant, sitting on the shoulder of the road and surrounded by several other people. Bergeman observed that defendant had several facial lacerations. An ambulance arrived and transported defendant to Cook County Hospital. Bergeman transported Semar, the Saturn’s passenger, to Cook County Hospital because Semar had no other means of transportation. After Bergeman arrived at the hospital, defendant was taken to an X-ray unit and Bergeman waited approximately an hour to interview her.

Bergeman testified that during his interview of defendant, he noticed an odor of alcohol on her breath. Defendant admitted that she had been drinking earlier. Bergeman issued defendant a ticket, read “Warnings to Motorists” to her and asked her to submit to “a DUI kit.” Bergeman then asked Dr. Dabbah, one of defendant’s treating physicians, to obtain two blood samples from defendant. At 9:40 a.m., Bergeman observed the doctor utilize two vials from a DUI kit to obtain the blood samples. Bergeman did not recall whether the doctor used a disinfectant. The vials were returned to the kit, which was initialed and sealed. Bergeman completed the paperwork that had been in the kit and transported the kit from the hospital to the evidence vault at the district headquarters of the State Police in Des Plaines.

Dr. Dabbah testified as follows. On August 27, 2005, he was a resident physician at Cook County Hospital, where he encountered defendant in the trauma unit. During the doctor’s interview of defendant, the doctor smelled alcohol on her breath and defendant admitted to him that she “drank the night before into the early morning.” After a discussion with Trooper Bergeman, Dr. Dabbah obtained two blood samples from defendant, in the trooper’s presence. Concerning the lack of disinfectant, Dr. Dabbah testified:

“Q. And you indicated that you didn’t sterilize the defendant’s arm, why is that?

DR. DABBAH: Because if you wipe her arm with alcohol, it can supposedly contaminate the specimen.”

After drawing two vials of blood, Dr. Dabbah labeled the vials and gave them to the State trooper. Dr. Dabbah witnessed Trooper Bergeman seal the vials into the DUI kit.

Dr. Dabbah testified that he remembered well the events concerning defendant because this was the first time that he had ever drawn blood for a DUI kit. The kit came with an instruction booklet, and he and the trooper read the instruction booklet before he drew defendant’s blood. He also testified that a person’s blood-alcohol level generally decreases over time, because the body metabolizes a certain amount per hour. He explained that shortly after a person consumes alcohol, his or her blood-alcohol level will rise and “peak.” Then the level will decrease over time.

Jacqueline Provenzale, a forensic scientist employed by the Illinois State Police laboratory, was accepted by the trial court as an expert “in the area of toxicology and forensic science.” Defense counsel did not object to her acceptance as an expert, subject to cross-examination. Provenzale testified that on September 22, 2005, she removed two vials of defendant’s blood from a sealed DUI kit and tested the blood for blood-alcohol level. Based on the tests she performed, her opinion was that the ethanol was 0.108 grams per deciliter. Defense counsel objected on “foundation” grounds to Provenzale stating her opinion concerning the amount of ethanol in defendant’s blood. The trial court overruled the objection. Provenzale then responded affirmatively to the question of whether her opinion was “based on a degree of scientific certainty.” Provenzale also explained that, normally, the blood-alcohol level will “peak” within an hour and a half after consumption. After it peaks, it will begin to decrease.

Provenzale further testified that if an alcohol swab is used to clean the skin prior to the drawing of blood, the swab will have no effect on the person’s blood-alcohol level. She explained that the instrumentation used in her laboratory distinguishes between different types of alcohol, such as ethanol and isopropanol. She testified that isopropanol is known commonly as rubbing alcohol and is the type of alcohol found in alcohol swabs. Prior to her employment with the Illinois State Police, she worked at a hospital where she drew blood thousands of times.

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Bluebook (online)
379 Ill. App. 3d 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bair-illappct-2008.