People v. Romano

487 N.E.2d 785, 139 Ill. App. 3d 999, 94 Ill. Dec. 28, 1985 Ill. App. LEXIS 2919
Appellate Court of Illinois·Decided December 31, 1985·No. 83-0471·Published·Cited by 28 cases

Opinions

JUSTICE LINDBERG

delivered the opinion of the court:

Defendant John Romano was charged by indictment on August 3, 1982, with the offense of reckless homicide and was convicted after a seven-day jury trial. On appeal, defendant contends the trial court committed reversible error by admitting the results of a chemical analysis performed on his blood because the sample was not handled properly and because he did not consent to the blood test, and also erred in allowing the admission of his statements at the hospital because he was in custody, but received no Miranda warnings. Finally, defendant argues the trial court erred in allowing the jury to hear the testimony of the State’s accident reconstruction expert prior to striking that testimony. We affirm.

The accident involving defendant and which resulted in the death of Brett Motisi occurred at approximately 5:35 p.m. on July 23, 1982, in Kane County. Both defendant and his brother, Tom Romano, spent the afternoon of July 23 at a friend’s house. At approximately 4:30 p.m. defendant followed his brother by car back to their parent’s home, arriving at approximately 5 p.m. Intending to return to the friend’s house, defendant again followed his brother, each in a separate car, eastbound on Bowes Road. Defendant moved into the oncoming lane of traffic to pass his brother, and his car struck Brett, who was traveling by bicycle with westbound traffic on the north side of Bowes Road. Brett’s mother, Karen Motisi, was also struck by defendant’s car. The victim’s sister, Kimberlee Motisi, who was also riding a bicycle, was not injured.

Upon arriving at the accident scene, Kane County Deputy Sheriff Eugene E Heppler observed the two injured persons and then defendant, who was standing in the driveway of a nearby house. Because defendant appeared injured, Heppler sought medical attention for him and then continued his investigation at the accident scene.

Defendant was transported by ambulance to the emergency room of St. Joseph’s Hospital in Elgin. Heppler arrived at the hospital a short time later, introduced himself again to defendant and asked him to describe the accident. After taking defendant’s statement, Heppler ticketed defendant for the offense of driving under the influence, requested that he submit to a blood test and advised him from a card of the provisions of the implied consent statute. According to Heppler and Barbara Oberg, an emergency room nurse, defendant consented to the blood test. Heppler also recited to defendant his Miranda rights. Defendant then signed a form in which defendant authorized release of information which Heppler then countersigned. Oberg swabbed the area from which blood was withdrawn with distilled water, drew two vials of blood, dated and signed the vials and took possession of them. Heppler transported defendant to the Kane County jail.

Defendant was indicted for the offense of reckless homicide. He pleaded not guilty and requested a jury trial. The State proceeded to trial on a bill of particulars which alleged that the acts constituting recklessness by defendant included speeding, driving under the influence of alcohol, changing lanes with bicyclists on the shoulder, and driving in the oncoming lane of traffic. Defendant made two pretrial motions: to suppress his statements made at the hospital and to ex-elude from evidence results of a blood alcohol test. At a hearing on November 4 and 10, 1982, the trial court heard testimony and arguments and then denied both motions.

At the commencement of defendant’s trial, defendant made a motion in limine requesting that the State be precluded from introducing any testimony or making any reference to any statements or reports of an accident reconstruction expert. The court denied the motion. As its case in chief, the State presented numerous witnesses including Heppler, Oberg, and several eyewitnesses to the accident.

Principally to establish the chain of custody and the handling of blood-alcohol samples following the accident, the State also intro-ducted the testimony of a Kane County deputy sheriff, several employees of the Illinois Department of Law Enforcement (IDLE), and a chemist for the Illinois Department of Public Health (IDPH) who performed the blood-alcohol test on defendant’s blood. The State also presented the testimony of Thad Aycock, a senior consultant at Northwestern University Traffic Institute, who testified based upon certain information supplied to him by the sheriff’s department that at the point defendant' applied his brakes, he was traveling at a minimum speed of 78 miles per hour. Defendant thereafter filed a motion to strike Aycock’s testimony, which the trial court subsequently granted prior to the close of evidence. Accordingly, the court instructed the jury to disregard Aycock’s testimony.

The defense case included two of defendant’s friends who testified defendant was sober just prior to the accident and defendant’s brother who, because he was in another car at the scene when the collision occurred, offered testimony regarding the details of the accident. Defendant also gave his version of the accident and testified he had consumed at least two beers that day. As evidence of the proper techniques and procedures for the storage and evaluation of blood when blood alcohol tests will be performed, defendant presented the testimony of Dr. Michael Schaffer, chief toxicologist for the office of the medical examiner of Cook County, and in rebuttal on the same subject, the State called Dr. Jeorg Pirl, assistant chief toxicologist of the IDPH.

Following testimony from the last witness, a registered nurse, the jury returned a verdict of guilty. The trial court on February 10, 1983, sentenced defendant to a term of three years imprisonment. On March 8, 1983, defendant filed a post-trial motion containing 18 assignments of error which the trial court denied on April 4, 1983. Defendant filed a timely notice of appeal that same day.

Defendant first contends the trial court erred in admitting into evidence defendant’s blood alcohol test results. Specifically, defendant contends the blood samples and test results were admitted improperly because certain provisions of the Standards and Procedure for Testing for Alcohol and/or Other Drugs (Standards) of the Illinois Department of Public Health as provided for in section 11 — 501.2 were not satisfied (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501.2).

The provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501 et seq.) are implicated if three requirements of the statute are satisfied. First, the provisions concerning implied consent including the Standards are applicable only if the motorist is first arrested for an offense as defined in section 11 — 501. (Ill. Rev. Stat. 1983, ch. 95V2, pars. 11 — 501.1, 11 — 501.2.) Here, defendant was arrested for DUI prior to the blood test.

The second requirement is that the blood test be administered at the request of a law enforcement officer (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.1; People v. Durbin (1985), 138 Ill. App. 3d 895, citing People v. Murphy (1985), 108 Ill. 2d 228, 234.) This requirement is satisfied on these facts for Heppler testified he requested that defendant submit to the blood test.

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People v. Romano, 487 N.E.2d 785, 139 Ill. App. 3d 999, 94 Ill. Dec. 28, 1985 Ill. App. LEXIS 2919 (Ill. Ct. App. 1985).

487 N.E.2d 785 (People v. Romano) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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