People v. Beck, 2017 IL App (4th) 160654 (November). Episode 424 (Duration 11:51)

Defendant crosses the centerline and collides head on with another car resulting in serious brain damage to the other driver, this 54 page opinion results.

Bad Accident

This was a head on collision that resulted in brain damage with long-term and lasting effects to the other driver. Defendant was found guilty of Aggravated DUI after a stipulated bench trial and put on 30 months probation with 180 days in jail but stayed.

Defendant’s car crossed into oncoming traffic.

A firefighter made first contact with defendant at the accident scene. Defendant reported to the firefighter that he “had maybe five beers” and Gubbins relayed that information to Carle’s emergency room. Defendant reported he had been drinking for the homecoming festivities at Eastern Illinois University since 10 a.m. on the day of the accident.

A photograph of the interior of defendant’s vehicle showed a single Bud Light beer can on the floorboard.

Taken To Hospital 

Defendant is taken to the hospital at 9:43 pm.

Hospital personnel informed the Sheriff’s office that defendant had a blood alcohol result of 0.211.

Deputy Clough stated he first saw defendant in a bed in his hospital room. Defendant’s parents were present and Clough believed a nurse was also in and out of the room. ” Clough next asked defendant if he was willing to submit to testing of his blood and urine. Defendant consented to the testing, and Clough asked a nurse to “do a DUI kit.”

Defendant is ticketed with DUI at 1:45 pm.

Conversation With Police

Because the emergency room was busy, blood was not collected from defendant until approximately 3:25 or 3:26 a.m. (7 hours after the crash) While waiting on the nurse to obtain specimens from defendant, Clough and defendant had a further discussion about defendant’s consumption of alcohol.

During that conversation, defendant reported that he had been drinking at a party prior to the accident.

Defendant admitted that he drank eight to nine beers at a party before the accident and crossed the centerline of the highway and struck Camp’s vehicle.

The officer did read the warning to motorist but did not give defendant the Miranda warnings.

Interesting 911 Recording

Recordings indicated the 9-1-1 center was contacted by law enforcement and asked to contact Carle’s emergency department with a request to draw defendant’s blood.

A dispatcher with the 9-1-1 center then contacted Carle and relayed the request to its emergency department, stating as follows:

“The deputies on scene are requesting that the male subject who’s being transported, you guys get a blood draw from him.”

An unidentified individual from Carle’s emergency department then responded,

“Yeah, we usually always do.”

But a nurse testified she was not ordered by any law enforcement agency to perform the blood draw. Rather, she did so at the direction of the emergency room doctor. At the time she drew defendant’s blood, there were not any police officers in defendant’s room, and she had not spoken to any police officers about defendant’s case. To her knowledge police were not requesting a blood draw.

She acknowledged that defendant’s medical records reflected that she drew defendant’s blood at 10:29 p.m.

Retrograde Extrapolation

The state presented a forensic toxicologist who described retrograde extrapolation as “a mathematical process” and “a method of estimating an individual’s BAC at an earlier point in time when it’s known at a later point in time.”

He testified retrograde extrapolation was an accepted method within the field of toxicology for determining an individual’s BAC and “was first described in the 1930s.” Wetstein asserted the mathematics of a retrograde extrapolation calculation were pretty simple and at the level of “high school algebra.”

Elimination Rate

Following that conversion, he was able to calculate defendant’s alcohol elimination rate—the rate at which defendant’s BAC dropped during the approximately 5 1/2 hours between his two blood draws.

Wetstein calculated defendant’s alcohol elimination rate as 0.019.

He testified the average elimination rate falls between 0.01 to 0.02 grams per deciliter per hour.

He then calculated defendant’s BAC at the time of the accident, which he ­testified occurred at approximately 8 p.m.

Other Factors

He took defendant’s height, weight, and gender.

He also relied on statements in the report that defendant consumed eight to nine beers between 5 and 7 p.m. on the day of the accident. He agreed that it was fair to say that “[t]he most significant effect on alcohol absorption [was] the quantity of food substances ingested with or immediately prior to consumption of an alcoholic beverage.”

Wetstein also agreed that a large amount of food present in the stomach would delay the absorption of alcohol. If no food is present in the stomach the absorption rate is faster.

Using that information, Wetstein concluded defendant’s last drink was consumed by 7 p.m.

In The Elimination Phase

Further, he opined within a reasonable degree of scientific certainty that defendant was in the “elimination phase” at the time of the accident rather than the “absorption phase.”

Wetstein testified that a retrograde extrapolation calculation required that an individual be in the elimination phase.

If he reasonably believed defendant had been in the absorption phase at the time of the accident, he would not have offered an opinion on retrograde extrapolation. Wetstein agreed that, as a matter of fact, he could not say when full absorption of alcohol occurred in defendant’s case.

BAC At Time Of The Accident

Ultimately, Wetstein calculated, within a reasonable degree of scientific certainty, that defendant’s whole BAC at the time of the accident was 0.211 grams per deciliter.

The Bedside Confession

On appeal, defendant first argues the trial court erred by denying his motion to suppress statements he made to Clough at Carle regarding his driving and consumption of alcohol on day of the accident. He contends his statements were made during a custodial interrogation and without the benefit of Miranda warnings.

We disagree with defendant’s assertions on appeal.

Although the circumstances he notes weigh in favor of finding that he was in custody for Miranda purposes, they are not dispositive nor do they preclude or prohibit the consideration of other relevant circumstances.

Here, defendant was transported to Carle by ambulance, and Clough’s questioning occurred in defendant’s hospital room, a neutral setting. Also present in the room were defendant’s parents and, at times, hospital personnel. Clough testified he asked permission to see defendant in his hospital room and that “everyone consented.” No other law enforcement personnel were present.

Although Clough informed defendant that he intended to charge him with DUI, read to him the Warning to Motorist that contained warnings pertaining to a DUI arrest, and issued defendant a DUI citation, the record reflects there was no show of weapons or force and defendant was not fingerprinted, booked, handcuffed, or restrained in any way.

The citations issued to defendant were uniform traffic citations. Notably, the DUI citation reflects defendant was provided with a “Notice to Appear” rather than required to post a cash bond, indicating he was not taken into custody by Clough and not being deprived of his freedom of action. The citations were also provided to defendant’s parents rather than defendant.

In fact, the interaction between *** Clough and [defendant] seemed to have been relatively minimal that day, primarily because of the treatment [defendant] was receiving.” The court also found nothing about defendant’s age or mental makeup that would have rendered him any more susceptible to construe his interaction with Clough as a custodial circumstance than any other person.

These factual findings were not against the manifest weight of the evidence. Under the facts presented, we find the majority of relevant factors weigh in favor of finding defendant was not in custody for purposes of Miranda. See People v. Vasquez, 393 Ill. App. 3d 185, 190-91, 913 N.E.2d 60, 66 (2009) (holding a hospital room was a neutral setting and that a suspect questioned in familiar or neutral surroundings “does not face the same pressures as one questioned in a police-dominated atmosphere”).

The Hospital Blood Draw

Argument

On appeal, defendant next argues the trial court erred in denying his motion in limine to bar evidence of his hospital blood draw.

He maintains the State failed to meet the foundational requirements for the admissibility of such evidence as set forth in section 11-501.4 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.4 (West 2012)). Section 11-501.4(a) of the Vehicle Code provides that, in DUI prosecutions, blood tests performed for the purpose of determining alcohol content, which are “conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule” when “the chemical tests performed upon an individual’s blood *** were ordered in the regular course of providing emergency.

Medical treatment and not at the request of law enforcement authorities.” 625 ILCS 5/11­ 501.4(a)(1) (West 2012).

The testing must also be “performed by the laboratory routinely used by the hospital.” 625 ILCS 5/11-501.4(a)(2) (West 2012).

“The purpose of section 11-501.4 is to insure the reliability and integrity of the test results conducted on a person charged with [DUI].”

Defendant maintains the evidence in his case showed the chemical testing at issue was inconsistent with Carle’s hospital protocol, given the severity of his injuries, and thus, evidence of the testing was inadmissible at his trial. Defendant also implied the blood draw was not medically necessary and was ordered by the police.

We disagree.

Ruling

Here, evidence presented to the trial court established defendant was taken to Carle’s emergency department following the motor vehicle accident and provided treatment by Carle’s emergency department personnel.

Nurse Kocher testified she performed a blood draw on defendant shortly following his arrival at Carle at the direction of Dr. Hans, the emergency room doctor, rather than any law enforcement agency. According to the stipulated evidence at defendant’s bench trial, Dr. Hans ordered the blood draw while treating defendant and “due to the nature of the incident that preceded his hospital visit,” rather than at the request of law enforcement. Further, chemical testing on defendant’s blood was performed in Carle’s laboratory.

We find such evidence was sufficient to meet the statutory requirements.

Further, we reject defendant’s contention that the statute also required the State to present evidence of an established hospital protocol to support the chemical testing. Rather, evidence that chemical testing was ordered by an emergency department doctor while providing treatment to an individual in a hospital emergency room is sufficient to meet statutory requirements.

While evidence of a hospital’s standard protocols or general practices may also support the admission of chemical tests under section 11-501.4, the lack of such evidence does not warrant the exclusion of the chemical test.

First, the language of the statute contains no such explicit requirement.

Second, defendant’s argument fails to take into account the exercise of independent judgment by an individual’s treating physician. We find section 11-501.4 contemplates both situations when chemical testing is ordered pursuant to an established protocol or general practice and when the testing is ordered outside of such standard procedures but based on the independent judgment of the defendant’s doctor while providing emergency medical treatment.

Moreover such an interpretation is consistent with the purpose of section 11-501.4 to insure the reliability and integrity of testing results. See More Illinois DUI Information.

While the evidence defendant presented indicated law enforcement desired a blood draw, the request was communicated to an unknown individual within Carle’s emergency department. The evidence did not show that the request was then communicated to the individuals providing defendant’s treatment or that the test was ordered pursuant to that request. Here, evidence of defendant’s hospital blood draw was admissible under section 11-501.4 of the Vehicle Code.

Further, the trial court committed no error in denying defendant’s motion in limine to exclude that evidence.

People v. Floyd

DUI is reversed because a retrograde extrapolation calculation based on a single breath test with unknown factors necessary to determine whether the defendant was in the elimination phase, is insufficient to provide a reliable calculation and invites the jury to determine guilt on an improper basis.

The expert presumed that the defendant was in the elimination phase. Even if a particular type of scientific evidence has been generally accepted in the scientific community, its admissibility “in an individual case will depend on the State’s ability to lay a proper foundation and to demonstrate the qualifications of its witness, subject to the balancing of probative value with the risk of unfair prejudice.” The expert himself acknowledged many important details were missing from his calculation.

“Wetstein acknowledged that he did not know what [the] defendant had eaten that night, how long she had been drinking, or what type of alcohol she consumed.”

See People v. Floyd, 2014 IL App (2d) 120507, ¶ 20, 11 N.E.3d 335.

The expert in that case was the same expert who testified in this case.

 On review, the defendant challenged Wetstein’s testimony on the basis “that, because Wetstein did not have information necessary to perform a retrograde extrapolation calculation with any degree of certainty, the prejudicial effect of his testimony outweighed its probative value.” The Second District agreed with the defendant’s argument, finding “[a] retrograde extrapolation calculation based on a single breath test, and when many of the factors necessary to determine whether the defendant was in the elimination phase are unknown, is insufficient to provide a reliable calculation and invites the jury to determine guilt on an improper basis.”

It found Wetstein’s testimony was relevant but unreliable because too many of the factors relevant to a retrograde extrapolation calculation were unknown. The court noted Wetstein’s calculation was “premised on the assumption that the defendant was in the elimination phase, without consideration of other relevant factors and without additional breath tests.”

Retrograde Extrapolation Argument

On appeal, defendant argues Wetstein lacked an adequate foundation for his retrograde extrapolation calculations, as he made too many assumptions when forming his opinions.

To lay an adequate foundation for expert testimony, it must be shown that the facts, data, or opinions relied upon by the expert are of a type reasonably relied upon by experts in that particular field in forming opinions or inferences.

Calculations based on retrograde extrapolation principles require information on the rates at which a human body absorbs and excretes alcohol. Rates can vary depending on a number of factors, including the elapsed time between a person’s last drink and the blood test; the amount and type of alcohol consumed; the time period during which the alcohol was consumed; and personal characteristics such as age, weight, alcohol tolerance, and food intake.

Further, a reliable retrograde extrapolation calculation requires consideration of several factors, including the following:

Additionally, “not every factor must be known to construct a reliable extrapolation; rather, the various factors must be balanced.”

“Whether the State produces a reliable extrapolation will depend on the specific circumstances of each case.

Ruling On Retrograde Extrapolation

In this case, Wetstein’s calculations were based on two blood draws rather than the single breath test at issue in Floyd.

From those tests, taken approximately five and a half hours apart, Wetstein was able to determine defendant’s actual elimination rate. Wetstein also had information in the materials provided to him regarding defendant’s personal characteristics, including his height, weight, and gender. Further, he had information as to when the motor vehicle accident occurred and that defendant reported drinking eight to nine beers between 5 and 7 p.m. prior to the accident.

Although Wetstein acknowledged that he made the assumption that defendant was drinking on an empty stomach, his conclusion that defendant was in the elimination phase at the time of the accident was otherwise based on relevant facts presented to him, including what defendant had been drinking and the time of his last drink.

Further, we agree with the trial court that Wetstein’s opinions were not so flawed as to be inadmissible simply because he made certain assumptions or because defendant could cast doubt on the accuracy of information he relied upon.

As determined by the trial court, such matters are subject to cross-examination and go to the weight of Wetstein’s testimony.

The court did not err in denying defendant’s motion to bar retrograde extrapolation evidence.