People v. Carlson

2023 IL App (2d) 210782, 218 N.E.3d 489, 467 Ill. Dec. 154

• Court: Appellate Court of Illinois
• Decided: March 23, 2023
• Docket: 2-21-0782
• Status: Published

Opinion

2023 IL App (2d) 210782 No. 2-21-0782 Opinion filed March 23, 2023 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Boone County. ) Plaintiff-Appellee, ) ) v. ) No. 20-CF-137 ) STUART J. CARLSON, ) Honorable ) John H. Young, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hudson and Kennedy concurred in the judgment and opinion.

OPINION

¶1 Defendant, Stuart J. Carlson, was charged with two counts of aggravated driving under the

influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(A), (d)(2)(B) (West 2020)). Count I alleged

that defendant drove while under the influence of alcohol in violation of section 11-501(a)(2) of

the Illinois Vehicle Code (id. § 11-501(a)(2)). Count II alleged that defendant drove with a blood

alcohol concentration (BAC) of 0.08 or more. Id. § 11-501(a)(1). Both counts alleged that

defendant “had two prior violations of [DUI].” Following a bench trial at which all the evidence

was admitted by stipulation, defendant was found guilty of both counts. Defendant argues on

appeal that, because the only evidence of his BAC was a blood test taken hours after driving, the

State failed to prove beyond a reasonable doubt that his BAC was above the legal limit while 2023 IL App (2d) 210782

driving. Defendant also argues that the trial court erred in relying on a delinquency adjudication

to elevate the offenses to aggravated DUI. 1 We affirm.

¶2 I. BACKGROUND

¶3 At trial, the parties stipulated as follows. Boone County sheriff’s deputy Shane Laga would

testify that, while on patrol on March 15, 2020, at approximately 1:41 a.m., he observed a vehicle

driven by defendant cross the center line and then weave within its lane, touching the center line

and the fog line. Laga conducted a traffic stop and, while speaking with defendant, could smell a

strong odor of an alcoholic beverage coming from the vehicle. Defendant’s eyes were bloodshot,

and he slurred his speech. Defendant admitted drinking “maybe half a six pack of Bud Light.” He

had his last drink between 9:30 and 10 p.m. Defendant agreed to perform field sobriety tests but

failed to follow several instructions. Laga’s encounter with defendant was video recorded, and

excerpts of the recording were admitted into evidence.

¶4 Laga placed defendant under arrest for DUI. After defendant refused to submit to a breath

test to determine his BAC, Laga obtained a search warrant to obtain a blood sample from

defendant. A phlebotomist drew defendant’s blood at 4:19 a.m. Testing of the blood sample

revealed a BAC of 0.16 grams per deciliter.

1 In his opening brief, defendant also argued that the trial court erred during his sentencing

hearing by allowing an expert in forensic toxicology to opine on defendant’s BAC when he was

driving. However, in his reply brief, defendant “concedes that the issue was unwisely included in

[his opening brief] and should not be reached by this Court.” He also “concedes and withdraws

[his] argument.” Therefore, we will not address the issue.

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¶5 Defendant’s attorney conceded that the evidence was sufficient to establish that defendant

was driving under the influence of alcohol as charged in count I. However, he argued that the State

had failed to prove that, as count II charged, defendant’s BAC was above the legal limit when

driving. As noted, the trial court found defendant guilty of both counts, ordered the preparation of

a presentence investigation report (PSI), and continued the matter for sentencing. The PSI revealed

that defendant had been adjudicated a delinquent minor for committing aggravated DUI in 2006.

The PSI further revealed that defendant was placed on supervision in 2007 for aggravated DUI

and again in 2008 for DUI.

¶6 At the sentencing hearing, an expert in forensic toxicology testified that she performed a

“back extrapolation calculation” to determine defendant’s BAC at the time of the traffic stop. She

concluded that his BAC was between 0.186 and 0.212 at the time of the traffic stop.

¶7 The trial court concluded that, because here defendant drove with a BAC of 0.16 or more

and had committed DUI on two prior occasions, he was guilty of a Class 2 felony. Thus, he was

subject to a minimum sentence of 90 days’ imprisonment and a minimum fine of $2500 (see id.

§ 11-501(d)(2)(B)). The court sentenced defendant to a 2-year term of probation, 90 days of

periodic imprisonment, and a $2500 fine. This appeal followed.

¶8 II. ANALYSIS

¶9 We first consider defendant’s argument that the State failed to prove him guilty beyond a

reasonable doubt of count II because the stipulated evidence did not establish that his BAC was

0.08 or more when he was driving. A reviewing court will not set aside a criminal conviction

unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the

defendant’s guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985). When the sufficiency of the

evidence is challenged, “ ‘the relevant question is whether, after viewing the evidence in the light

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most favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Id. (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)).

¶ 10 Evaluating this argument requires a basic understanding of how the human body processes

alcoholic beverages. As a court from a sister state has explained:

“As alcohol is consumed, it passes from the stomach and intestines into the blood,

a process referred to as absorption. When the alcohol reaches the brain and nervous system,

the characteristic signs of intoxication begin to show. The length of time necessary for the

alcohol to be absorbed depends on a variety of factors, including the presence and type of

food in the stomach, the person’s gender, the person’s weight, the person’s age, the

person’s mental state, the drinking pattern, the type of beverage consumed, the amount

consumed, and the time period of alcohol consumption. At some point after drinking has

ceased, the person’s BAC will reach a peak. After the peak, the BAC will begin to fall as

alcohol is eliminated from the person’s body. The body eliminates alcohol through the liver

at a slow but consistent rate.

In 1932, Swedish chemist E.M.P. Widmark first calculated absorption and

elimination rates in the body, and his work still represents the benchmark for other

scientists’ studies today. Widmark created what we know today as the ‘BAC curve,’ which

represents the rise and fall of an individual’s BAC as his body absorbs and eliminates

alcohol. A reading from a single breath test will not reflect where the person is on his BAC

curve. In other words, it will not indicate whether the person is in the absorption phase, at

his peak, or in the elimination phase.

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So if a driver is tested while in the absorption phase, his BAC at the time of the test

will be higher than his BAC while driving. If tested while in the elimination phase, his

BAC at the time of the test could be lower than while driving, depending on whether he

had reached his peak before or after he was stopped. Obviously, the greater the length of

time between the driving and the test, the greater the potential variation between the two

BACs.” Mata v. State, 46 S.W.3d 902, 909-10 (Tex. Crim. App. 2001) (en banc)).

Accordingly, if it can be shown that a motorist was driving during the elimination phase, a

subsequent blood test will show a BAC no higher than the motorist’s BAC while driving.

¶ 11 Citing People v. Floyd, 2014 IL App (2d) 120507, defendant argues that the results of a

blood test taken hours after he was driving are inherently unreliable. Floyd is inapposite. That case

dealt with the admissibility of the testimony of an expert who performed a “retrograde

extrapolation” of the defendant’s BAC. Retrograde extrapolation is a method determining a

person’s BAC at a particular time based on a subsequent test of his or her BAC. Here, no party

sought to introduce such evidence at trial, so its admissibility is not at issue.

¶ 12 We note that, in Floyd, the defendant’s BAC when tested was below the legal limit. The

State sought to present retrospective extrapolation evidence to establish that it was over the legal

limit at the time she was driving. Id. ¶ 9. Here, in contrast, defendant’s BAC was twice the legal

limit when his blood was drawn 2 hours and 38 minutes after the traffic stop. As discussed, if

defendant was in the elimination phase when he was stopped, his BAC would have been as high

or higher at that time than when his blood was drawn. Our decision in Village of Bull Valley v.

Winterpacht, 2012 IL App (2d) 101192, is instructive. In Winterpacht, we upheld the defendant’s

DUI conviction, without retrograde extrapolation evidence, where her BAC was 0.182 two hours

after she had had a motor vehicle accident. Id. ¶ 1. We explained:

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“When there is a delay between when a defendant was driving and when blood is

drawn, extrapolation evidence might be necessary when the blood alcohol level at the time

of the test is below the statutory limit. In such a case, extrapolation evidence may be used

to show that the blood alcohol level was above the limit when the defendant was driving.

[Citation.] But no such evidence is necessary when the tested level is above the statutory

limit. In such a case, when a reasonable amount of time elapses between when the

defendant was driving and the test, extrapolation evidence is permissible but is not a

foundational requirement. [Citation.] Matters of delay between driving and testing go to

the weight of the evidence and must be viewed in light of the circumstances surrounding

the arrest.” Id. ¶ 13.

¶ 13 Defendant argues that retrograde extrapolation was unnecessary in Winterpacht because,

as the Winterpacht court observed, the defendant appeared intoxicated when paramedics reached

her but her condition improved over time. Id. ¶¶ 5-6. Although the defendant in Winterpacht did

not frame her argument in terms of the absorption and elimination phases of alcohol consumption,

we note that those circumstances suggested that she was in the elimination phase at the time of, or

shortly after, the accident. In Winterpacht, we reasoned that “[t]hose facts corroborated the

reasonable inference that, at the time of the accident, defendant’s blood alcohol level was similar

to, if not higher than, what it was tested at two hours later.” Id. ¶ 15; see also People v. Epstein,

2022 IL 127824, ¶¶ 23, 28-29 (Evidence that the defendant’s BAC was 0.107 based on a test of

blood drawn approximately four hours after a traffic stop was admissible without retrograde

extrapolation evidence; even though the defendant’s conduct in police videos led her expert to

opine that she was still absorbing alcohol after the stop, the jury was entitled to reject that opinion,

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in which case the test result could be used to establish that her BAC while driving was over the

legal limit.).

¶ 14 Evidently, it is defendant’s view that the outcome in Winterpacht depended on the evidence

that the defendant was in the elimination phase when driving or shortly thereafter. We need not

resolve that question here. Even assuming (without deciding) that such evidence was necessary in

Winterpacht (and necessary here), we find that the trial court in this case could similarly conclude

beyond a reasonable doubt that defendant was in the elimination phase when he was stopped at

1:41 a.m. Defendant told the arresting officer that he had stopped drinking no later than 10 p.m.

Thus, defendant had nothing to drink for at least 3 hours and 41 minutes. Although the rate of

absorption (and hence the length of the absorption phase) can vary depending on many factors (see

Floyd, 2014 IL App (2d) 120507, ¶ 16 (citing State v. Eighth Judicial District Court, 267 P.3d

777, 780 (Nev. 2011))), it is reasonable to infer that, within three hours after his last drink,

defendant would have fully absorbed the alcohol he had consumed and his BAC would no longer

be rising. See Justin Noval & Edward J. Imwinkelried, Retrograde Extrapolation of Blood Alcohol

Concentration, 50 Crim. L. Bull. 188, 206 (2014) (“Researchers have found that some persons

reach peak absorption in as few as fifteen minutes while other persons require a period as long as

three hours.”). Consequently, absent evidence indicating that defendant was still in the absorption

phase after three hours, the trial court could reasonably infer that defendant’s BAC, when stopped,

was as high or higher than his BAC when his blood was drawn. (Again, we stress that we express

no opinion on whether the evidence would have been sufficient without evidence of when

defendant stopped drinking.)

¶ 15 Defendant next argues that the trial court erred in relying on a delinquency adjudication for

DUI to find him guilty of aggravated DUI. Defendant was charged with aggravated DUI under

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sections 11-501(d)(1)(A) and 11-501(d)(2)(B) of the Vehicle Code (625 ILCS 5/11-501(d)(1)(A),

(d)(2)(B)) (West 2020)). Section 11-501(d)(1)(A) provides:

“(1) Every person convicted of committing a violation of this Section shall be guilty

of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating

compound or compounds, or any combination thereof if:

(A) the person committed a violation of subsection (a) or a similar provision

for the third or subsequent time[.]” Id. § 11-501(d)(1)(A).

Section 11-501(d)(2)(B) provides, in pertinent part, that “[a] third violation of this Section or a

similar provision is a Class 2 felony.” Id. § 11-501(d)(2)(B).

¶ 16 Defendant argues that the “failure of the legislature to include, clearly, an incorporation of

juvenile adjudications evinces a decision not to do so, as the legislature clearly knows how to draft

the law.” We disagree. The question presented is one of statutory construction and is governed by

the following principles:

“[I]n resolving an issue of statutory construction, the court’s objective involves

ascertaining and carrying out the ‘true intent and meaning of the legislature evidenced by

the language used.’ [Citation.] Indeed, our inquiry ‘always begin[s] with the language of

the statute, which is the surest and most reliable indicator of legislative intent.’ [Citation.]

We give undefined statutory words and phrases their natural and ordinary meanings.

[Citation.] And we enforce the clear and unambiguous language as written, without resort

to other aids of construction, e.g., legislative history. [Citation.] The construction of a

statute is a question of law, which we review de novo. [Citation.]” People v. Cavitt, 2021

IL App (2d) 170149-B, ¶ 167.

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¶ 17 The dispositive question is whether defendant committed a “violation” of the DUI statute

for a third or subsequent time. “Black’s Law Dictionary defines ‘violation’ as an ‘[i]njury;

infringement; breach of right, duty or law; ravishment; seduction. The act of breaking, infringing,

or transgressing the law.’ ” People v. Jones, 306 Ill. App. 3d 793, 802 (1999) (quoting Black’s

Law Dictionary 1570 (6th ed. 1990)). The definition does not depend on age. Indeed, under the

Juvenile Court Act of 1987, a “ ‘[d]elinquent minor’ ” is “any minor who prior to his or her 18th

birthday has violated or attempted to violate, *** any federal, State, county or municipal law or

ordinance.” (Emphases added.) 705 ILCS 405/5-105(3) (West 2020). Thus, defendant’s

delinquency adjudication for aggravated DUI established that he “committed a violation” under

the aggravated DUI statute.

¶ 18 Defendant also invokes the rule of lenity, under which ambiguous penal statutes are strictly

construed to afford lenity to the accused. See In re Detention of Powell, 217 Ill. 2d 123, 142 (2005).

“[T]he rule of lenity applies only to statutes containing ‘grievous ambiguities,’ leaving us unable

to do more than merely ‘guess’ the legislature’s intent.” People v. Fiveash, 2015 IL 117669, ¶ 34

(citing People v. Gutman, 2011 IL 110338, ¶¶ 43-44). That is not the case here. Accordingly, the

trial court did not err in relying on a delinquency adjudication to find defendant guilty of

aggravated DUI.

¶ 19 Finally, defendant argues that his sentence violates section 5-5-3.2(b)(7) of the Unified

Code of Corrections (730 ILCS 5/5-5-3.2(b)(7) (West 2020)), which, according to defendant,

“limits the use of Juvenile Adjudications as a reason to impose harsher sentences.” The argument

is meritless. Section 5-5-3.2(b)(7) governs when an offender is eligible for an extended-term

sentence. Because defendant did not receive an extended-term sentence, section 5-5-3.2(b)(7) has

no application here.

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¶ 20 III. CONCLUSION

¶ 21 For the reasons stated, we affirm the judgment of the circuit court of Boone County.

¶ 22 Affirmed.

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People v. Carlson, 2023 IL App (2d) 210782

Decision Under Review: Appeal from the Circuit Court of Boone County, No. 20-CF- 137; the Hon. John H. Young, Judge, presiding.

Attorneys Christopher J. Taylor, of Oswego, for appellant. for Appellant:

Attorneys Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino, for Edward R. Psenicka, and Max C. Boose, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

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