{ "id": 3591925, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTINA PALMER, Defendant-Appellant", "name_abbreviation": "People v. Palmer", "decision_date": "1983-04-28", "docket_number": "No. 82\u2014127", "first_page": "454", "last_page": "461", "citations": [ { "type": "official", "cite": "114 Ill. App. 3d 454" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "59 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959147 ], "year": 1980, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0534-01" ] }, { "cite": "444 N.E.2d 1386", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1389" }, { "page": "1389" } ], "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 124", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5436507 ], "weight": 3, "pin_cites": [ { "page": "128" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0124-01" ] }, { "cite": "413 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "499" } ], "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3159734 ], "weight": 4, "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0700-01" ] }, { "cite": "431 N.E.2d 1280", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483164 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0876-01" ] }, { "cite": "229 N.E.2d 911", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 2d 335", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551462 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0335-01" ] }, { "cite": "423 N.E.2d 510", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3111411 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0787-01" ] }, { "cite": "411 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5539367 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0022-01" ] } ], "analysis": { "cardinality": 798, "char_count": 17197, "ocr_confidence": 0.744, "pagerank": { "raw": 1.6695123070299114e-07, "percentile": 0.6957112171404588 }, "sha256": "5f5e6b6ba44b366a3ab7cfdd4b3bab7338622bf5724e8c3a1ac508abd49f1ebe", "simhash": "1:27f1b14273a18c51", "word_count": 2786 }, "last_updated": "2023-07-14T18:05:13.547892+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTINA PALMER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LINDBERG\ndelivered the opinion of the court:\nDefendant, Christina Palmer, was found guilty after a jury trial of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 \u2014 501(a)), improper overtaking on the left (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 \u2014 703(a)), and driving too fast for conditions (Ill. Rev. Stat. 1979, ch. 95%:, par. 11 \u2014 601(a)). Defendant appeals only her conviction for the first of the above offenses, asserting that the circuit court of Du Page County improperly admitted evidence concerning the results of the chemical analysis performed on a sample of her blood.\nAt approximately 4 p.m. on March 11, 1980, defendant was driving northbound on Route 83 in Elmhurst. She lost control of her car as she attempted to pass another vehicle and swerved across the median, where she collided with a southbound vehicle driven by another. Defendant was injured in the accident; the other driver suffered injuries from which he eventually died.\nShortly after the accident, an ambulance removed defendant to Memorial Hospital in Elmhurst, where she received treatment in the emergency room. Betty Theroux, a clerk assigned to the emergency room, testified she prepared the paperwork relating to defendant\u2019s treatment there. Theroux testified she used a form, admitted into evidence over objection both as People\u2019s exhibit 1 and 12, to record certain information obtained from defendant. At the bottom of the form was a section headed, \u201cAuthorization for Medical and or Surgical Treatment and Assignment of Insurance Benefits.\u201d There followed a statement authorizing emergency-room personnel \u201cto administer such emergency medical and/or surgical treatment as he deems advisable, including blood transfusions, anesthesia, and x-rays.\u201d The blank for the patient\u2019s signature below this section had been filled in by The-roux with the notation, \u201cPts Verbal Permission.\u201d She testified that the patient normally is asked to sign, \u201c[a]nd if they can\u2019t sign it, then we ask for their verbal permission.\u201d Theroux recalled asking defendant to sign, but was unable to recall defendant\u2019s response.\nAt various points during the hearing on the motion to suppress, the court noted that no testimony had been introduced concerning a blood test or defendant\u2019s withholding of consent for a test. Counsel responded by referring the court to defendant\u2019s unverified motion to suppress, which stated that defendant\u2019s verbal permission for treatment had been given while she was in semi-shock and not totally cognizant of her surroundings. The motion\u2019s averments continued that laboratory reports of urinalysis and hematology, which were administered within 2V2 hours of the accident, failed to bear defendant\u2019s written or verbal consent to such tests. At the conclusion of the hearing, defendant\u2019s motion to suppress was denied.\nDefendant subsequently made a motion in limine to exclude this evidence on essentially the same grounds, which motion also was denied.\nTrial proceeded, and one of the officers who had investigated the accident testified that he did not arrest defendant when he saw her in the hospital. Theroux was recalled to testify, out of the hearing of the jury, and in essence repeated the testimony she had given at the prior hearing. On the basis of her testimony, the trial court found defendant had given verbal permission for treatment which was sufficient to permit the admission into evidence of the blood test.\nThe jury was recalled, and Bonnie Evans testified that she was employed as a phlebotomist at Memorial Hospital. She had received on-the-job training and had been so employed for 21k years. Evans had drawn a sample of blood from defendant in the emergency room. She identified a requisition slip showing that the sample was desired to test for defendant\u2019s alcohol level and testified the blood sample was given to a technician for analysis. Lynn Ellen Werner identified herself as the medical technologist who tested the sample of defendant\u2019s blood. She had done a 12-month\u2019s internship, was registered with the American Society for Clinical Pathologists and had been employed as a medical technologist for 3V2 years. Her test disclosed the alcohol content of defendant\u2019s blood was 230 milligrams.\nLorraine Arne testified she was the afternoon supervisor of the laboratory for Memorial Hospital and had worked as a medical technologist for 18 years, including eight years as a laboratory supervisor at the hospital. She had been Evans\u2019 and Werner\u2019s supervisor on March 11. She was neither a pathologist nor a toxicologist and did not specialize in analytical chemistry. When asked if any of her personnel concerned with the case were licensed by the \u201cState Department of Health,\u201d she responded, \u201cNo, sir. We just have a registry.\u201d\nConsidering the above evidence, the court found that since the laboratory personnel were not certified by the Department of Public Health, People\u2019s exhibit 14, the requisition for blood-alcohol level bearing the results of the test, did not qualify for admission into evidence. Defendant\u2019s objection to this exhibit was therefore sustained. The court denied ensuing motions by the State for a mistrial and by defendant for a directed verdict. It also denied defendant\u2019s motion to strike the testimony of Evans, Werner, and Arne. The court further ruled that since no objection was made to Werner\u2019s oral testimony concerning the results of the blood test, that evidence would stand.\nDefendant then was found guilty, and this appeal followed.\nAlthough defendant\u2019s brief is somewhat confusing, it appears defendant takes issue with the trial court\u2019s partial denial of her motion to suppress during trial and admission of oral testimony as to the results of her blood test. Defendant\u2019s pretrial motion to suppress was based on the claim that a blood test must be taken either incident to arrest, or with the consent of the person tested, and that neither occurred here. Defendant\u2019s objection at trial was based on the alleged failure of hospital personnel to meet the standards required by statute for those performing blood tests.\nBecause we agree with defendant that hospital personnel failed to meet the statutory requirements, we reverse and remand on that issue. This makes unnecessary any discussion of the remaining arrest or consent issues.\nThe controlling statute in this case is section 11 \u2014 501 of the lilinois Vehicle Code, which in pertinent part provides:\n\u201c(d) Chemical analysis of the person\u2019s blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health, in cooperation with the Superintendent of State Police, and by an individual possessing a valid permit issued by that Department for this purpose. The State Department of Public Health is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct such analysis and to issue permits which shall be subject to termination or revocation at the discretion of the State Department of Public Health.\u201d (Emphasis added.) Ill. Rev. Stat. 1979, ch. 95x/2, par. 11 \u2014 501(d).\nThe standards in question have not been made part of the record on appeal. The trial court had a copy of the standards before it, but they are before this court only as an appendix to the State\u2019s brief. This court may take judicial notice of such standards. (Pearce v. Illinois Central Gulf R.R. Co. (1980), 89 Ill. App. 3d 22, 411 N.E.2d 102.) The standards most relevant to the case are found in section 12, \u201cApproval of Laboratories and Laboratory Technicians.\u201d See Illinois Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs sec. 12, at 23 (1982).\nIn the present case, it was clear that those responsible for the processing of defendant\u2019s blood met neither the statutory requirements nor the requirements of the departmental standards. Although the statutory permit requirement (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 \u2014 501(d)) has been held to apply to the person who analyzes the blood, rather than the person who takes the sample (People v. Casper (1981), 97 Ill. App. 3d 787, 423 N.E.2d 510), Werner, who performed the analysis in this case, did not have such a permit. Moreover, Arne, the only laboratory supervisor whose credentials were made a matter of record, did not satisfy the requirements for supervisors contained in Rule 12.01 that she be a toxicologist, pathologist or other person qualified in analytical chemistry. See Illinois Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs sec. 12, at 23 (1982).\nIn reply to defendant\u2019s argument that these defects required exclusion of the test results, the State notes first that defendant made no objection to Werner\u2019s testimony concerning the results. Further, it is asserted that the test in this case did not involve State action so that the department\u2019s standards were inapplicable. The State also submits that the results were admissible despite the enumerated defects in the absence of a showing by defendant that the test was incorrect or inherently suspect. Finally, any error in admitting the results is urged as being harmless beyond a reasonable doubt.\nAlthough defendant did not object to Werner\u2019s testimony, she did move to strike that testimony after the deficiencies became apparent. Defendant also renewed her contention of error in her post-trial motion. Inasmuch as the error complained of was brought to the court\u2019s attention during trial and was renewed in the post-trial motion, we do not deem this error waived for lack of a contemporaneous objection. Coleman v. Dent (1967), 86 Ill. App. 2d 335, 229 N.E.2d 911.\nThe State\u2019s further argument, that compliance with the standards and permit requirement is not required in the absence of State action, has been rejected in the context of the statutory consent requirement. (People v. Williams (1981), 103 Ill. App. 3d 876, 431 N.E.2d 1280; People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497.) In view of the statutory language that \u201c[cjhemical analysis of the person\u2019s blood *** to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health *** and by an individual possessing a valid permit by that Department for this purpose,\u201d we conclude that the same result must be reached here.\nUnlike the situation in People v. Casper (1981), 97 Ill. App. 3d 787, 423 N.E.2d 510, on which the State relies, it is apparent from the record that the statute\u2019s permit requirement was not complied with in this case. The plain language of the statute, therefore, requires the conclusion that the analysis of defendant\u2019s blood may not be considered valid. Section 11 \u2014 501(d) must be considered as a part of a substantive enactment prohibiting driving while under the influence. There is nothing in section 11 \u2014 501 as a whole or in section 11\u2014 501(d) which limits the testing and permit requirements; they apply \u201c[ujpon the trial of any action or proceeding under the statute\u201d (emphasis added) (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 \u2014 501(c)). The legislature has clearly decided that a blood alcohol test performed by an individual without a permit and not according to certain standards is unacceptable as evidence in a prosecution for driving while under the influence.\nThis analysis of the statute is similarly dispositive of the State\u2019s contention that there was no showing that the test was incorrect or inherently suspect, as we believe no such showing was necessary. To the extent to which this conclusion is contrary to the holding in Peo ple v. Casper (1981), 97 Ill. App. 3d 787, 423 N.E.2d 510, we decline to follow People v. Casper.\nThis conclusion renders unnecessary consideration of the State\u2019s further argument that Rule 12.01 of the departmental standards applies only in circumstances where the defendant has been placed under arrest and chemical analysis has been requested by the arresting officer. See Illinois Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs sec. 11, at 16 (1982).\nIn reaching this determination we are aware of another decision of this court which reached an opposite conclusion. (People v. Pezzette (1983), 112 Ill. App. 3d 124, 444 N.E.2d 1386.) The court there concluded that it seems apparent that the protective provisions of section 11 \u2014 501 of the Illinois Vehicle Code were formulated to prevent an accused from being subjected to nonconsensual or inaccurate testing procedures by law enforcement authorities. (People v. Pezzette (1983), 112 Ill. App. 3d 124, 128, 444 N.E.2d 1386, 1389.) In Pezzette the defendant requested a blood analysis for her own use after declining a police request for a blood analysis. This court concluded that the legislative purpose of the Department of Public Health permit and regulations was obviated, or at least not implicated, where a blood test is administered at defendant\u2019s own request and not in response to either a police request or to a prior test taken at the direction of police. People v. Pezzette (1983), 112 Ill. App. 3d 124, 128, 444 N.E.2d 1386, 1389.\nPezzette may accurately describe the consent requirement of section 11 \u2014 501(c), but it fails to recognize the additional and independent strictures of section 11 \u2014 501(d). To hold that 11 \u2014 501(d) need not be followed when there is no danger that an accused will be subjected to an unconsented test would make 11 \u2014 501(d) surplusage, because the consent is always required for a blood alcohol analysis under section 11 \u2014 501. Ill. Rev. Stat. 1979, ch. 951/2, par. 11 \u2014 501(c); People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497.\nPezzette relies on the statement in People v. Todd (1975), 59 Ill. 2d 534, 542, that \u201c[t]he obligation to obtain consent appears to be the dominant intent of the legislature,\u201d and our observation in People v. Weissinger (1980), 90 Ill. App. 3d 700, 702, 413 N.E.2d 497, 499, that \u201c[the] statutory intendment is to safeguard the rights *** to be free of the need to give evidence against himself,\u201d for its assertion that the protection provided by section 11 \u2014 501(d) was intended only to prevent law enforcement officers from \u201csubjecting\u201d unwilling defendants to unconsented blood alcohol tests. But the cited language refers only to the proper construction and underlying purpose of the separate consent requirement of section 11 \u2014 501(c). The scope of section 11 \u2014 501(d) was not even at issue in Todd or Weissinger, and nothing in these cases holds that the plain language of section 11 \u2014 501(d) may be disregarded merely because the purpose behind the separate consent requirement of section 11 \u2014 501(c) has been met. Pezzette also appears to state that even the consent requirements of section 11\u2014 501(c) are subjected to a State action limitation, which is directly at odds with our previous holding in People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497. There is also nothing in the statute to support the holding in Pezzette that the protections of section 11\u2014 501(d) are limited to the \u201cthree testing situations\u201d arbitrarily set up in Pezzette without explanation or citation of authority.\nFinally, the State contends that any error in the admission of the blood test was harmless beyond a reasonable doubt in view of the evidence that the smell of alcohol was noticeable on defendant\u2019s breath after the accident and the fact that defendant told personnel in the emergency room that she was under the influence of alcohol. Although that evidence tends to establish that defendant had been drinking, and that by her own estimation she was intoxicated, a substantial part of the State\u2019s proof on this issue came through the testimony of Dr. John J. Spikes. Spikes, a toxicologist, testified in response to a hypothetical question that a person with a blood-alcohol concentration of .23 would be grossly impaired as to her coordination, judgment of distances and speed, and reaction times. Moreover, the prosecution exploited the evidence of the blood test during closing argument, and had submitted to the jury an instruction on the presumption of intoxication arising from a blood test of greater than .10. Under these circumstances, we do not believe that the error in admitting the test results may be deemed harmless beyond a reasonable doubt.\nAccordingly, we reverse the judgment of the circuit court of Du Page County and remand the cause for a new trial.\nReversed and remanded.\nSEIDENFELD, P.J., and VAN DEUSEN, J., concur.", "type": "majority", "author": "JUSTICE LINDBERG" } ], "attorneys": [ "Rafael A. Del Campo, of Chicago, for appellant.", "J. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton (Barbara A. Preiner, Assistant State\u2019s Attorney, and Phyllis J. Perko, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTINA PALMER, Defendant-Appellant.\nSecond District\nNo. 82\u2014127\nOpinion filed April 28, 1983.\nRafael A. Del Campo, of Chicago, for appellant.\nJ. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton (Barbara A. Preiner, Assistant State\u2019s Attorney, and Phyllis J. Perko, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0454-01", "first_page_order": 476, "last_page_order": 483 }