{
  "id": 3443523,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH M. EMRICH, Defendant-Appellee",
  "name_abbreviation": "People v. Emrich",
  "decision_date": "1985-03-26",
  "docket_number": "No. 84\u20140285",
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  "last_updated": "2023-07-14T22:48:37.184543+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH M. EMRICH, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nAt the conclusion of a suppression hearing, the trial court held that the results of a chemical analysis performed on a sample of defendant Joseph M. Emrich\u2019s blood were inadmissible. On appeal, the State contests the propriety of this holding, pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)).\nFollowing an August 22, 1983, automobile collision, defendant was taken to Henrotin Hospital, where Tereseta Easterling, a medical technologist, drew three blood samples at approximately 2:30 a.m. Each blood sample was drawn directly from defendant into a sterile vacuum container. One of the containers had a \u201cgreen top,\u201d meaning that the sample within contained the anticoagulant heparin; the two remaining containers had \u201cred tops,\u201d meaning that the samples within did not contain an anticoagulant or preservative. Easterling then labeled the containers and proceeded to test the \u201cgreen top\u201d sample for alcohol content in an ACA centrifuge instrument. This particular analysis involved first separating out the blood cells, and then measuring the alcohol content of the remaining plasma. Easterling conceded, however, that she was not certified to perform this analysis by the Illinois Department of Public Health.\nAt approximately 4:45 a.m. on August 22, Officer John Simon of the Chicago police department left Henrotin Hospital with the two \u201cred top\u201d samples of defendant\u2019s blood that were given to him by Easterling. Officer Simon took these samples to the 18th District police station where, following an inventory, he turned them over to Officer Norford Rejewski, a crime lab technician, at 6:53 a.m. that morning. Officer Rejewski gave Officer Simon a receipt for the containers, put them into an envelope and placed them into a \u201crefrigerator and microsection.\u201d\nVeronica Rotterman, a toxicology chemist employed by the Illinois Department of Public Health (Department), received a manila envelope from the Chicago police department at approximately 8:20 a.m. on August 22. This envelope contained two test tubes with red rubber stoppers containing approximately six milliliters of defendant\u2019s blood. Rotterman thereupon wrote up a description of the evidence and how it had arrived, signed a police officer\u2019s receipt, and put one of the samples into a storage box that was locked into an evidence refrigerator. Rotterman then proceeded to perform an alcohol analysis on the second sample of defendant\u2019s blood. This particular test involved the gas chromatograph direct injection method, whereby a blood sample is injected into the instrument and the alcohol content is recorded on a computer printout graph. Although Rotterman determined by her sense of smell that defendant\u2019s unpreserved blood sample had not degenerated or deteriorated, she later admitted that the standards of her Department required that the blood sample have an anticoagulant preservative in it.\nOn August 26, 1983, defendant was charged by indictment with two counts of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9\u2014 3), and one count of driving while under the influence of an intoxicating liquor (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 \u2014 501(a)). Defendant filed a motion for discovery on September 13, 1983, which requested, among other things, \u201c[t]he blood sample taken from the Defendant on the night of the alleged occurrance [sic].\u201d Thereafter, on October 11, 1983, defendant filed a motion to suppress the results of any analysis performed on the samples of his blood. Count I of this motion dealt with an alleged nonconsensual procurement of said evidence; count II concerned the State\u2019s failure to supply the requested blood sample for independent analysis.\nOn January 19, 1984, a hearing was held on count II of defendant\u2019s motion to suppress. Richard Swiatek, a manager of chemistries and toxicology working at Damen Clinical Laboratories, was called to testify as an expert witness for the defense. When counsel for defendant tendered Swiatek as an expert in chemical analysis, the State declined to question his degree of expertise in this field. In essence, Swiatek indicated that he had not received defendant\u2019s blood sample from the State until October 19, 1983. Swiatek further testified that this sample did not contain an anticoagulant or preservative. As such, it was his opinion that the then two-month-old sample could not be accurately tested for \u201cwhole blood alcohol concentration.\u201d Had defendant\u2019s blood sample contained the proper anticoagulant and preservative, it was Swiatek\u2019s opinion that only then could an accurate blood-alcohol determination have been made.\nThe trial court granted defendant\u2019s motion to suppress, reasoning that \u201cthe State failed to properly maintain the blood sample and allowed the spoilation of the blood sample thereby precluding the defendant from obtaining an independent analysis ***.\u201d The court also noted that the alcohol analysis in question was not performed in accordance with the standards and procedures adopted by the Department. It is the propriety of the trial court\u2019s suppression order which the State now contests on appeal.\nI\nThe threshold issue is whether affirmance is warranted in view of the undisputed failure to comply with the statutes and regulations dealing with chemical analysis of blood for alcohol or drug content.\nThe controlling statute in this case is section 11 \u2014 501.2 of the Illinois Vehicle Code which provides, in pertinent part, that: \u201cChemical analyses of the person\u2019s blood, *** to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Public Health in consultation with the Department of Law Enforcement ***.\u201d (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 \u2014 501.2(a)(1).) The standards in question have not been made a part of the record on appeal. The trial court apparently had a copy of these standards before it, but they are before this court only as an appendix to the State\u2019s brief. Without question, a reviewing court may take judicial notice of such standards. People v. Palmer (1983), 114 Ill. App. 3d 454, 458, 448 N.E.2d 1005, citing Pearce v. Illinois Central GulfR.R. Co. (1980), 89 Ill. App. 3d 22, 411 N.E.2d 102.\nThe Department standard most relevant to the case at bar is found in section 11, \u201cSTANDARDS AND PROCEDURES FOR WITHDRAWING OF BLOOD AND/OR URINE SAMPLES FOR CHEMICAL ANALYSIS OF ALCOHOL OR OTHER DRUG CONTENT.\u201d Rule 11.01(d)(3) of section 11 provides that: \u201cWhen vacuum-type blood-collecting containers are used as primary collecting tubes, two (2) tubes should be collected each containing an anti-coagulant/ preservative which will not interfere with the intended analytical method.\u201d Illinois Department of Public Health, Standards and Procedures for Testing for Alcohol and/or Other Drugs by Breath, Blood and Urine Analysis, Rule 11.01(d)(3), at 17 (1982).\nIt is clear that those responsible for the processing of defendant\u2019s blood failed to meet the Departmental standard for withdrawing of blood for chemical analysis of alcohol content. Indeed, as the State\u2019s expert, Veronica Rotterman, admitted in open court: \u201c[Defendant\u2019s] blood samples had no anti-coagulant in them ***.\u201d This was evident despite Rotterman\u2019s acknowledgement that, \u201c[her] agency, the Illinois Department of Public Health, require[s] that the blood sample have anti-coagulant preservative in it.\u201d (Emphasis added.)\nThe State has conceded that \u201c[t]he blood samples below *** did not contain an anti-coagulant/preservative.\u201d That, of course, was why, as the State also concedes, \u201cthe blood contained in the sample was clotted at the time of examination ***.\u201d\nThe standard in question could either have been met or not. An anticoagulant could have been put in all three of defendant\u2019s blood samples, but it is quite obvious that such was not the case here. As a result, the State\u2019s contention that it substantially complied with the Department\u2019s preservation-of-blood standard is without merit.\nFurther argument is advanced by the State that the word \u201cshould,\u201d as used in the Department\u2019s Rule 11.01(d)(3), connotes no more than an obligation of expediency. What the State has failed to acknowledge, however, is the uncontroverted fact that this particular \u201cRule\u201d was promulgated by the Department as a \u201cSTANDARD\u201d for withdrawing of blood for chemical analysis of alcohol content. (Illinois Department of Public Health, Standards and Procedures for Testing for Alcohol and/or Other Drugs, by Breath, Blood and Urine Analysis sec. 11, at 16 (1982).) As such, compliance was mandatory in view of the legislature\u2019s directive in section 11 \u2014 501.2(a)(1) of the Illinois Vehicle Code that: \u201cChemical analyses of the person\u2019s blood, *** to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Law Enforcement by an individual possessing a valid permit issued by that Department for this purpose.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. 95V2, par. ll-501.2(a)(l).\nFurthermore, a reading of the prefatory comment to Rule 11.01 indicates more than a mere advisory intent on the part of the Department:\n\u201cBlood Collection. When a person is arrested and the arresting officer requests a blood test to determine the amount of alcohol or other drugs present, the blood sample shall be collected according to the followingprocedure(s): ***.\u201d (Emphasis added.)\nSection 11 \u2014 501.2 of the Illinois Vehicle Code \u201capplies equally to reckless homicide and DWI offenses alike ***.\u201d People v. Murphy (1984), 124 Ill. App. 3d 695, 700, 464 N.E.2d 853.\nA plain reading of this section, effective at the time of the instant chemical analysis, reveals that the legislature did not intend to limit its application strictly to driving-while-under-the-influence cases: \u201c(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11 \u2014 501 ***.\u201d (Ill. Rev Stat. 1983, ch. 95^2, par. 11 \u2014 501.2(a).) Driving while under the influence of an intoxicating liquor is an offense defined in section 11 \u2014 501(a)(2) of the Illinois Vehicle Code. Defendant here was charged with one count of this offense and with two counts of reckless homicide \u2014 the commission of which allegedly arose out of his having driven a motor vehicle while under the influence of an intoxicating liquor.\nThe mandatory language contained in section 11 \u2014 501.2(a)(1) is, therefore, applicable to the facts of this case.\nIn both People v. Murphy (1984), 124 Ill. App. 3d 695, 464 N.E.2d 853 and People v. Palmer (1983), 114 Ill. App. 3d 454, 448 N.E.2d 1005, the State\u2019s argument that the certification requirement of section 11 \u2014 501.2(a)(1) should be ignored was rejected. Accordingly, the trial court\u2019s exclusion in each case of blood test results due to the absence of a Department permit was affirmed. Likewise, we reject the State\u2019s argument here that the Department\u2019s standard with respect to the preservation of blood samples should also be ignored. The reasons for the evidentiary restrictions set forth in section 11 \u2014 501.2(a)(1), as well as the dangers inherent in their disregard, do not need elaboration. There is no dispute that the blood samples in question were never preserved with an anticoagulant. Consequently, the chemical analysis of these samples was not \u201cperformed according to the standards promulgated by the Department ***.\u201d (Ill. Stat. 1983, ch. 95x/z, par. 11 \u2014 501.2(a)(1).) Because the mandatory language of section 11 \u2014 501.2(a)(1) applies equally to reckless homicide and driving-while-under-the-influence offenses alike, it is our conclusion that the results of the chemical analysis were properly ruled inadmissible.\nII\nAs a final argument, the State contends that an inadequate foundation was laid to qualify defendant\u2019s expert \u201cin the area of forensic analysis, the analysis of alcohol content of the blood.\u201d This question, however, has not been preserved for review.\nDuring the direct examination of Mr. Swiatek, an objection was made by the prosecutor that defense counsel was \u201cgoing into the substance of this case and I don\u2019t know if counsel has finished in his examination of establishing that [Swiatek] is an expert.\u201d Thereafter, the defense counsel tendered Swiatek as an expert in the field of chemical analysis. The trial court then asked the State if it \u201cwishfed] to inquire of the witness as to his expertise or degree of expertise in the field to which he is about to testify?\u201d The prosecutor responded, \u201cNo, Judge.\u201d Having failed to question, much less object to, Swiatek\u2019s qualifications as an expert witness during the proceedings below, we consider the State\u2019s argument with regard to this issue as waived for purposes of appellate review. See People v. Stewart (1984), 105 Ill. 2d 22, 50.\nFor the reasons set out herein, the judgment of the circuit court of Cook County is hereby affirmed.\nAffirmed.\nSTAMOS and PERLIN, JJ., concur.\nNo testimony concerning the results of Easterling\u2019s test was proffered by the State during the course of the proceedings below; no issue has therefore been raised with respect to the validity of these results.",
        "type": "majority",
        "author": "JUSTICE BILANDIC"
      }
    ],
    "attorneys": [
      "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Timothy J. Frenzer, and Mary Louise Norwell, Assistant State\u2019s Attorneys, of counsel), for the People.",
      "Stephen K. Bell, of Wheaton, for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH M. EMRICH, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 84\u20140285\nOpinion filed March 26, 1985.\nRehearing denied April 23,1985.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Timothy J. Frenzer, and Mary Louise Norwell, Assistant State\u2019s Attorneys, of counsel), for the People.\nStephen K. Bell, of Wheaton, for appellee."
  },
  "file_name": "0547-01",
  "first_page_order": 569,
  "last_page_order": 575
}