{ "id": 35386, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARWIN GREEN, Defendant-Appellant", "name_abbreviation": "People v. Green", "decision_date": "1997-12-31", "docket_number": "No. 1\u201495\u20142142", "first_page": "139", "last_page": "149", "citations": [ { "type": "official", "cite": "294 Ill. App. 3d 139" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "431 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 273", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5481817 ], "year": 1982, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0273-01" ] }, { "cite": "499 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "113 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172942 ], "year": 1986, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0497-01" ] }, { "cite": "643 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "year": 1994, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] }, { "cite": "645 N.E.2d 423", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365932 ], "year": 1994, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0096-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "661 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "169 Ill. 2d 183", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909165 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "186-87" }, { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0183-01" ] }, { "cite": "365 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 680", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366454 ], "year": 1977, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0680-01" ] }, { "cite": "574 N.E.2d 268", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 24", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294008 ], "year": 1991, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0024-01" ] }, { "cite": "460 U.S. 73", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189447 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "85-88" }, { "page": "833-35" }, { "page": "976-78" } ], "opinion_index": 0, "case_paths": [ "/us/460/0073-01" ] }, { "cite": "632 So. 2d 1106", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7474182 ], "year": 1994, "pin_cites": [ { "page": "1108" } ], "opinion_index": 0, "case_paths": [ "/so2d/632/1106-01" ] }, { "cite": "636 N.E.2d 1101", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 946", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5367078 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "953" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0946-01" ] }, { "cite": "673 N.E.2d 1037", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "174 Ill. 2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223622 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "362" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0355-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "668 So. 2d 593", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7434273 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "596" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/so2d/668/0593-01" ] }, { "cite": "561 So. 2d 654", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7531374 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "655" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/so2d/561/0654-01" ] }, { "cite": "677 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "175 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295830 ], "year": 1997, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0435-01" ] }, { "cite": "866 F. Supp. 817", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 9364 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "820" }, { "page": "820" }, { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/f-supp/866/0817-01" ] }, { "cite": "628 N.E.2d 212", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 904", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384816 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0904-01" ] }, { "cite": "503 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574027 ], "year": 1987, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0304-01" ] }, { "cite": "523 N.E.2d 1196", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586277 ], "year": 1988, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0001-01" ] } ], "analysis": { "cardinality": 982, "char_count": 23567, "ocr_confidence": 0.777, "pagerank": { "raw": 1.952110909811781e-07, "percentile": 0.7368641955573472 }, "sha256": "eb4966bb4b647f9d0eba69c8838f1a8ee8730057979d67c022573cb9e0609b04", "simhash": "1:b8987ed27b77e785", "word_count": 3756 }, "last_updated": "2023-07-14T15:05:51.326352+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. DARWIN GREEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOURIHANE\ndelivered the opinion of the court:\nOn June 4, 1992, defendant Darwin Green was involved in an automobile accident that killed Florence McCaffray and seriously injured two other members of her family. Defendant was indicted on two counts of reckless homicide and three counts of aggravated driving under the influence of alcohol. A jury trial followed, and defendant was found guilty as charged. Defendant was thereafter sentenced to a single seven-year prison term for reckless homicide as well as to a concurrent three-year prison term for each count of aggravated driving under the influence of alcohol.\nOn appeal, defendant contends that (1) the jury was misled into believing it could presume his legal intoxication pursuant to certain blood serum-alcohol concentration test results, (2) the State was improperly allowed to elicit testimony interpreting the discrepancies between his various alcohol concentration test results, and (3) one of his convictions for aggravated driving under the influence of alcohol violates the \"one-act-one-crime\u201d rule. For the reasons that follow, we reverse defendant\u2019s convictions and remand this matter for a new trial.\nBACKGROUND\nPaul McCaffray was driving south on River Road through River Grove, Illinois, late in the evening on June 4, 1992. With him were his wife, Margaret, his six-year-old daughter, Julianne, and his mother, Florence. McCaffray testified at trial that as he changed lanes in anticipation of making a left-hand turn onto Grand Avenue, \"[he] saw two headlights coming directly at [him] at what appeared to be a relatively high rate of speed.\u201d A collision followed. Florence McCaffray was killed instantly; McCaffray and his wife were seriously injured.\nJohn Mancini was traveling north on River Road that evening. Mancini testified that he first noticed defendant upon pulling alongside him at the intersection of Fifth Avenue and Hemingway Drive; defendant was stopped \"on an angle\u201d approximately 40 feet behind that intersection.\nMancini further testified that as he drove north on Fifth Avenue and then later on River Road, defendant twice came \"right up on [his] bumper and then backed off\u201d before veering into, and out of, the southbound traffic lanes. Defendant crossed over into the southbound traffic lanes on four separate occasions; he collided with a southbound car the fourth and final time.\nRiver Grove police detective Keith Aller testified that he was dispatched to the accident scene minutes after the collision, which he described as two cars \"head to head\u201d in the left-hand, southbound traffic lane of River Road. Detective Aller found defendant was \"semiconscious\u201d with several head injuries; he also smelled of alcohol.\nEmergency medical technician John Paczesny arrived shortly thereafter. He, too, noticed that defendant smelled of alcohol.\nDetective Aller secured the personal property within defendant\u2019s car, which included a money clip, a portfolio, some jewelry, a pager and a large, \"picnic-type cooler\u201d; no alcohol was found. Detective Aller then drove to Gottlieb Memorial Hospital, where nurse Patrick Coleman took a series of blood and urine samples from defendant, certain of which were sealed and inventoried by Detective Aller as evidence.\nDr. Joyce Rosenfeld, an emergency room physician at Gottlieb, saw defendant upon his admission and, as a matter of course, ordered a series of tests, including a blood serum-alcohol concentration test. Dr. Rosenfeld testified that the result of that test indicated an alcohol concentration level of 0.114 gram per 100 milliliters, which, she explained, meant \"that the person is intoxicated above a level that would be a legal blood[-alcohol] limit.\u201d Dr. Rosenfeld further testified that a blood serum-alcohol concentration level between 0.50 and 0.10 gram per 100 milliliters \"shows signs of intoxication,\u201d whereas a level of 0.10 or greater means \"under the influence.\u201d\nThereafter, the parties stipulated that one of the series of blood samples taken from defendant upon his admission to Gottlieb was forwarded to Metpath Laboratories, a private laboratory retained by Gottlieb. Like Gottlieb, Metpath also subjected defendant\u2019s blood serum to an alcohol concentration test. However, the result of that test, 0.124 gram per 100 milliliters, was somewhat higher than that reported by Gottlieb.\nLaura LeDonne-Draka, a forensic scientist with the Illinois State Police, testified that she also analyzed a sample of defendant\u2019s blood. She, however, did not analyze defendant\u2019s blood serum as had Gottlieb and Metpath; rather, she analyzed defendant\u2019s whole blood, which according to the result of her test, contained an alcohol concentration level of 0.079 gram per 100 milliliters. LeDonne-Draka stated that an alcohol concentration test of blood serum \"would give a higher [alcohol concentration] reading\u201d than would an identical test of whole blood. Indeed, according to LeDonne-Draka, an alcohol concentration test that analyzes blood serum will produce alcohol concentration levels approximately 16% higher than those that analyze whole blood, thus necessitating the use of a conversion factor to obtain equivalent whole blood-alcohol concentration levels.\nTiffany Bailey then testified on behalf of defendant, whom she described as a \"friend of the family.\u201d According to her, defendant would often visit her at her job, and he did so again on the evening of the collision following his softball game. Defendant remained with her for about an hour, during which time she noticed nothing unusual about him.\nDefendant testified that some time after he finished work on June 4, 1992, he drove to a friend\u2019s house, stopping first to purchase beer. When defendant arrived at his friend\u2019s house, he brought two bottles of beer inside. Defendant stated that he drank half a bottle before leaving with his friend for a softball game.\nDefendant thereafter participated in the softball game with no ill effects. Defendant also stated that he did not have another drink until the game ended at 8:30 p.m., at which time he had another beer. After finishing that beer, defendant drove his friend home.\nDefendant met Bailey later that evening. According to him, they conversed for half an hour before he left. Defendant stated that as he drove home, north on Fifth Avenue and then later on River Road, he was \"feeling\u201d for his cellular telephone and \"looking at the road\u201d up until the moment he collided with a southbound car.\nDefendant further testified that he was not affected by the alcohol he consumed that evening and that he had not consumed any other alcoholic beverages. He also stated that he did not recall ever crossing into any southbound traffic lanes or driving close to the rear of another car.\nThereafter, defendant called Dr. Robert M. Moriarty, a chemist at the University of Illinois at Chicago; Dr. Moriarty had reviewed the alcohol concentration test results from Gottlieb, Metpath and the Illinois State Police. Like LeDonne-Draka, Dr. Moriarty testified that alcohol concentration tests performed on blood serum produce different results than do the same tests performed on whole blood; namely, alcohol concentration levels approximately 16% higher. Using a conversion factor of 1.16, Dr. Moriarty converted the Gottlieb and Metpath blood serum-alcohol concentration test results into respective whole blood equivalents of 0.0982 and 0.1068 gram per 100 milliliters.\nDr. Moriarty further testified that the wide range of alcohol concentration test results precluded any reliance upon them. Indeed, according to Dr. Moriarty, such a wide range of results rendered each mutually exclusive of the others and, therefore, unreliable and incompatible.\nOn rebuttal, LeDonne-Draka stated that the various alcohol concentration test results were not incompatible, in light of the differences between the tests that were performed and the instruments that performed those tests. However, LeDonne-Draka also admitted that she was unfamiliar with the instruments used by Metpath and Gottlieb to determine blood serum-alcohol concentration levels.\nAfter hearing all the evidence and arguments of counsel, the jury found defendant guilty as charged.\nDISCUSSION\nI\nDefendant now contends that a \"series of errors conspired to mislead the jury\u201d into believing it could presume he was legally intoxicated based upon the results of two blood serum-alcohol concentration tests, each of which reported an alcohol concentration level of greater than 0.10.\nA trial error is of such magnitude as to require the reversal of a defendant\u2019s conviction if there is a reasonable probability the error may have contributed to that conviction. People v. Fields, 170 Ill. App. 3d 1, 13, 523 N.E.2d 1196 (1988); People v. Merideth, 152 Ill. App. 3d 304, 319, 503 N.E.2d 1132 (1987).\nIn a prosecution for aggravated driving under the influence, a trier of fact may presume a defendant is under the influence of alcohol if that defendant\u2019s alcohol concentration, at the time of the incident, was 0.10 or greater. 625 ILCS 5/11 \u2014 501.2(b)(3) (West 1996). The same is true in a prosecution for reckless homicide (625 ILCS 5/11 \u2014 501.2(b)(3) (West 1996); 720 ILCS 5/9 \u2014 3(c)(1) (West 1996)); an alcohol concentration of 0.10 or greater also entitles a trier of fact to further presume that defendant acted recklessly, \"unless disproved by evidence to the contrary.\u201d 720 ILCS 5/9 \u2014 3(b) (West 1996).\nSection 11 \u2014 501.2(a)(5) of the Illinois Vehicle Code defines \"alcohol concentration\u201d in terms of \"grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.\u201d 625 ILCS 5/11 \u2014 501.2(a)(5) (West 1996). The Illinois Vehicle Code, however, does not define the term \"blood\u201d; neither does the Criminal Code of 1961 (720 ILCS 5/1 \u2014 1 et seq. (West 1996)). That notwithstanding, whole blood has been held to be the \"standard unit required by the [Illinois Vehicle Code]\u201d (People v. Niemiro, 256 Ill. App. 3d 904, 914 n.2, 628 N.E.2d 212 (1993)), and we agree.\nBy the same token, we do not believe that the term \"blood,\u201d as used within section 11 \u2014 501.2(a)(5), can also mean blood serum. First, section 11 \u2014 501.2(a)(5) does not define \"alcohol concentration\u201d in terms of blood serum. 625 ILCS 5/11 \u2014 501.2(a)(5) (West 1996). Second, whole blood and blood serum are not fungible. Blood serum is, in fact, a constituent part of whole blood; specifically, it is that which remains after the red and white blood cells and other particulate matter have been removed. Stedman\u2019s Medical Dictionary 1278 (24th ed. 1984). Third, that lack of red and white blood cells and other particulate matter serves to increase the relative percentage of water within blood serum which, because alcohol has an affinity for water, results in higher alcohol concentration levels in blood serum than in whole blood. Kempe v. Dometic Corp., 866 F. Supp. 817, 820 (D. Del. 1994), citing J. Mosher, 2 Liquor Liability Law \u00a7 22.04 (1994); Roehrenbeck, C. Russell & R. Russell, Blood is Thicker Than Water, 8 Grim. Just. 14, 15 (1993). As such, it would be illogical to conclude that section 11 \u2014 501.2(a)(5) may be understood to have defined \"alcohol concentration\u201d in terms of both whole blood and blood serum. Furthermore, to the extent section 11 \u2014 501.2(a)(5) may be said to be ambiguous, it must be strictly construed in favor of defendant. People v. Woodard, 175 Ill. 2d 435, 444, 677 N.E.2d 935 (1997). In this instance, that would require a construction of section 11\u2014 501.2(a)(5) that did not include blood serum.\nSimply put, section 11 \u2014 501.2(a)(5) of the Illinois Vehicle Code defines \"alcohol concentration\u201d in terms of whole blood and whole blood only. See Niemiro, 256 Ill. App. 3d at 914 n.2; see also 625 ILCS 5/11 \u2014 501.2(a)(5) (West 1996); accord Florida Tile Industries v. Dozier, 561 So. 2d 654, 655 (Fla. Dist. Ct. App. 1990), overruled on other grounds, Domino\u2019s Pizza v. Gibson, 668 So. 2d 593 (Fla. 1996).\nA\nThe first in defendant\u2019s \"series of errors\u201d concerns the testimony of Dr. Rosenfeld that defendant\u2019s blood serum-alcohol concentration level of 0.114 meant he was legally intoxicated at the time of the accident. Defendant argues that such testimony was improper not only because it was a legal conclusion, but also because that legal conclusion was \"so utterly wrong.\u201d\nDefendant did not object to Dr. Rosenfeld\u2019s testimony at trial, nor did he do so within his posttrial motion. Both were necessary to preserve that issue for appeal. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). Indeed, failure to do so generally waives an issue for purposes of appellate review. People v. Vargas, 174 Ill. 2d 355, 362, 673 N.E.2d 1037 (1996). Nevertheless, not all unpreserved issues are irredeemably waived, for Supreme Court Rule 615(a) provides that plain errors affecting substantial rights may be reviewed on appeal, although not properly preserved. 134 Ill. 2d R. 615(a). However, in appeals from criminal proceedings, review pursuant to plain error is limited to two circumstances; one, where the evidence is closely balanced, and two, where the unpreserved error is of such magnitude that a substantial risk exists that a defendant was denied a fair trial. Vargas, 174 Ill. 2d at 363.\nHere, the evidence of defendant\u2019s legal intoxication was closely balanced. It included the results of three alcohol concentration tests; one whole blood test, which reported an alcohol concentration level of 0.079, and two blood serum tests, one of which when converted into a whole blood equivalent indicated an alcohol concentration level of 0.0982. It also included evidence of defendant\u2019s erratic driving as well as an odor of alcohol around his person. We cannot say this evidence overwhelmingly established defendant\u2019s legal intoxication. Accordingly, we believe review of this contention under the plain error doctrine is appropriate.\nAt trial, Dr. Rosenfeld testified that defendant\u2019s blood serum-alcohol concentration level was 0.114 which, according to her, meant he was legally intoxicated at the time of the collision. Dr. Rosenfeld, however, was in error. That alcohol concentration level did not establish defendant\u2019s legal intoxication, nor did it otherwise allow for such a presumption pursuant to section 11 \u2014 501.2(b). Indeed, when converted to a whole blood equivalent using a conversion factor of 1.16, that alcohol concentration level falls to 0.0982, which is clearly less than 0.10 and therefore not a basis upon which to conclude or presume legal intoxication. See 625 ILCS 5/11 \u2014 501.2(b)(2) (West 1996). Dr. Rosenfeld\u2019s testimony was therefore in error.\nB\nThe second in defendant\u2019s \"series of errors\u201d concerns the circuit court\u2019s refusal to instruct the jury as to the distinction between whole blood and blood serum for purposes of determining his \"alcohol concentration.\u201d Defendant argues that such an instruction was necessary to \"straighten out the damage done by Dr. Rosenfeld\u2019s mistaken testimony.\u201d\nDuring the conference on jury instructions, defendant requested an instruction specifically defining \"alcohol concentration\u201d in terms of whole blood. Defendant\u2019s request was denied. As a result, the jury was only instructed that \"[t]he term 'alcohol concentration\u2019 means either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.\u201d\nAs we have previously determined, section 11 \u2014 501.2(a)(5) of the Illinois Vehicle Code defines \"alcohol concentration\u201d in terms of whole blood, not blood serum. See Niemiro, 256 Ill. App. 3d at 914 n.2; see also 625 ILCS 5/11 \u2014 501.2(a)(5) (West 1996); accord Florida Tile Industries, 561 So. 2d at 655. As such, a trier of fact may not employ any of the legal presumptions provided within section 11\u2014 501.2(b) on the basis of a defendant\u2019s blood serum-alcohol concentration level; a trier of fact may do so only on the basis of a defendant\u2019s whole blood-alcohol concentration level. Evidence of a defendant\u2019s whole blood-alcohol concentration level may stem from actual whole blood-alcohol concentration test results or from blood serum-alcohol concentration test results converted into whole blood equivalents. Domino\u2019s Pizza, 668 So. 2d at 596. In either event, a trier of fact may only employ a presumption provided within section 11 \u2014 501.2(b) on the basis of a defendant\u2019s whole blood-alcohol concentration level. Allowing a trier of fact to employ such a presumption on the basis of a defendant\u2019s unconverted blood serum-alcohol concentration level is error.\nHere, the jury was not instructed it could not employ a presumption provided within section 11 \u2014 501.2(b) on the basis of defendant\u2019s unconverted blood serum-alcohol concentration levels. It was therefore allowed to employ a presumption of defendant\u2019s legal intoxication on the basis of such evidence. That was error.\nIn People v. Menssen, 263 Ill. App. 3d 946, 636 N.E.2d 1101 (1994), this court held that evidence of a defendant\u2019s blood serum-alcohol concentration level was admissible under section 11 \u2014 501.2(a) of the Illinois Vehicle Code. 263 Ill. App. 3d at 953. We continue to adhere to that interpretation of section 11 \u2014 501.2(a). Accord Domino\u2019s Pizza, 668 So. 2d at 595; Michie v. State, 632 So. 2d 1106, 1108 (Fla. Dist. Ct. App. 1994). However, we specifically hold that such unconverted evidence may not be considered by a trier of fact in determining whether a presumption provided within section 11 \u2014 501.2(b) shall be employed; only evidence of a defendant\u2019s whole blood-alcohol concentration level may be considered for such a purpose.\nC\nThe third and last in defendant\u2019s \"series of errors\u201d concerns the State\u2019s closing arguments to the jury. Defendant argues the State misstated the law; specifically, that defendant\u2019s legal intoxication could be presumed on the basis of blood serum-alcohol concentration evidence.\nNeither defendant nor the State argued the jury should only consider evidence of defendant\u2019s whole blood-alcohol concentration. In fact, the State argued just the opposite; it argued that defendant\u2019s blood serum-alcohol concentration levels could be used to presume his legal intoxication at the time of the collision.\nThose arguments were clearly in error.\nMoreover, the foregoing \"series of errors\u201d served to deny defendant a fair trial; they were not harmless. See Connecticut v. Johnson, 460 U.S. 73, 85-88, 74 L. Ed. 2d 823, 833-35, 103 S. Ct. 969, 976-78 (1983).\nII\nNext, defendant contends that the circuit court erred in allowing LeDonne-Draka to testify on rebuttal that the results of defendant\u2019s three alcohol concentration tests were not incompatible.\nWe decline to address this contention, for where, as here, a judgment is reversed on one ground, other grounds for reversal are not ordinarily considered, unless they can be expected to arise anew on retrial. People v. Henderson, 215 Ill. App. 3d 24, 27, 574 N.E.2d 268 (1991); People v. Scott, 47 Ill. App. 3d 680, 682, 365 N.E.2d 108 (1977). Having had a jury impliedly reject Moriarty\u2019s incompatibility testimony, we do not expect defendant to advance such a defense again on retrial. Neither, in turn, do we expect the State to proffer testimony as to the compatibility of defendant\u2019s three alcohol concentration test results where defendant does not first raise such a defense.\nIll\nDefendant finally contends that his conviction for aggravated driving under the influence of alcohol as it relates to the death of Florence McCaffray cannot stand, for it violates the \"one-act-one-crime\u201d rule. We agree.\nIn People v. Rodriguez, 169 Ill. 2d 183, 661 N.E.2d 305 (1996), our supreme court reaffirmed the \"one-act-one-crime\u201d rule previously announced in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). 169 Ill. 2d at 186-87. That rule provides that multiple convictions are improper if based upon precisely the same physical act. Rodriguez, 169 Ill. 2d at 186. That rule further provides that multiple convictions are improper, even where there are multiple acts, if any of those convictions involve lesser-included offenses. Rodriguez, 169 Ill. 2d at 186.\nA lesser-included offense \"[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the [greater] offense charged.\u201d 720 ILCS 5/2 \u2014 9(a) (West 1996). Stated otherwise, \"[a] lesser[-]included offense arises when the greater offense includes every element of the lesser offense plus one or more elements.\u201d People v. Yarbrough, 269 Ill. App. 3d 96, 103, 645 N.E.2d 423 (1994). The existence of a lesser-included offense is to be determined by the facts alleged in the charging instrument; that is to say, an offense is a lesser-included offense if it is described within the greater offense. People v. Novak, 163 Ill. 2d 93, 107, 643 N.E.2d 762 (1994); People v. Bryant, 113 Ill. 2d 497, 503, 499 N.E.2d 413 (1986); People v. Wyns, 103 Ill. App. 3d 273, 276, 431 N.E.2d 38 (1982).\nHere, defendant\u2019s convictions for reckless homicide and aggravated driving under the influence of alcohol were based upon multiple acts. Within the reckless homicide counts, the State alleged that, while under the influence of alcohol, defendant drove his vehicle into the wrong lane of traffic and struck another vehicle, killing Florence McCaffray. Within the count of aggravated driving under the influence of alcohol relating to the death of Florence McCaffray, the State alleged that defendant, while under the influence of alcohol, was involved in an automobile accident that killed Florence McCaffray. Clearly, the latter charge of aggravated driving under the influence of alcohol is a lesser-included offense within that of reckless homicide, as alleged. Accordingly, defendant may not be convicted of both on retrial.\nCONCLUSION\nFor the aforementioned reasons, we reverse defendant\u2019s convictions and remand this matter for a new trial.\nReversed and remanded.\nHARTMAN and SOUTH, JJ., concur.\nAs explained by Jean Wojtanek, laboratory manager at Gottlieb, whole blood is blood that has not been separated into its constituent components; blood serum, on the other hand, is one of those constituent components.\nConversion factors vary. This is so because alcohol concentration ratios between blood serum and whole blood vary among individuals. 8 Grim. Just, at 18. Indeed, each individual has a particular conversion factor. Kempe, 866 F. Supp. at 820, citing 2 Liquor Liability Law \u00a7 22.04; 8 Crim. Just, at 18. Use of 1.16 as a conversion factor is arbitrary; it is simply the average of a range of such factors used in connection with the many different alcohol concentration ratios found within the public. Kempe, 866 F. Supp. at 820, citing 2 Liquor Liability Law \u00a7 22.04; 8 Crim. Just, at 18.\nHere, the parties both employed 1.16 as the appropriate conversion factor.\ndefendant did not object to the foregoing arguments at trial, nor did he do so within his posttrial motion. Nevertheless, we, for the reasons previously discussed, believe that review of this contention under the plain error doctrine is appropriate.", "type": "majority", "author": "JUSTICE HOURIHANE" } ], "attorneys": [ "Michael J. Pelletier and Ronald S. Packowitz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret O\u2019Sullivan, and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARWIN GREEN, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201495\u20142142\nOpinion filed December 31, 1997.\nMichael J. Pelletier and Ronald S. Packowitz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret O\u2019Sullivan, and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0139-01", "first_page_order": 157, "last_page_order": 167 }