{ "id": 1472369, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEN A. THOMAN, Defendant-Appellant", "name_abbreviation": "People v. Thoman", "decision_date": "2002-05-24", "docket_number": "No. 5\u201401\u20140127", "first_page": "1216", "last_page": "1220", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 1216" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "77 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3289404 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "335" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0330-01" ] }, { "cite": "183 Ill. 2d 499", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209965 ], "year": 1998, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0499-01" ] }, { "cite": "263 Ill. App. 3d 946", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5367078 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "953" }, { "page": "953" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0946-01" ] }, { "cite": "294 Ill. App. 3d 139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35386 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "144-45" }, { "page": "145" }, { "page": "147" }, { "page": "147" }, { "page": "147" }, { "page": "147" }, { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0139-01" ] } ], "analysis": { "cardinality": 400, "char_count": 8904, "ocr_confidence": 0.772, "pagerank": { "raw": 9.644524892947116e-08, "percentile": 0.5278537474578634 }, "sha256": "2dbc0f713a1bd6306350839f352e96a0ad5de3f15efead165f34d995b8ec46e7", "simhash": "1:bc4c35f77b54a7d1", "word_count": 1494 }, "last_updated": "2023-07-14T18:00:16.668960+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. KEN A. THOMAN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WELCH\ndelivered the opinion of the court:\nKen A. Thoman (defendant) appeals from his conviction, following a jury trial in the circuit court of Fayette County, for driving with a blood alcohol concentration of 0.08 or more in violation of section 11\u2014 501(a)(1) of the Illinois Vehicle Code (Code) (625 ILCS 5/11\u2014501(a)(1) (West 2000)). He raises two issues on appeal: whether the evidence presented at the trial was sufficient to prove him guilty beyond a reasonable doubt where no evidence of the alcohol concentration in his \u201cwhole blood\u201d was presented but only evidence of the alcohol concentration in his \u201cblood serum\u201d and whether the trial court erred in allowing into evidence the result of the blood serum alcohol analysis where the State failed to establish the necessary and proper foundation for its admission. We will set forth only those facts necessary to our disposition on appeal.\nDefendant was charged by information filed in the circuit court of Fayette County on January 5, 2001, with driving with a blood alcohol concentration of 0.08 or more in violation of section 11 \u2014 501(a)(1) of the Code and with driving while under the influence of alcohol in violation of section 11 \u2014 501(a)(2) of the Code (625 ILCS 5/11\u2014501(a)(1), (a)(2) (West 2000)). On the State\u2019s own motion, the charge of driving while under the influence of alcohol was dismissed during the trial. A jury convicted defendant of driving with a blood alcohol concentration of 0.08 or more, and on February 12, 2001, defendant was sentenced to 18 months\u2019 probation.\nAt defendant\u2019s juiy trial, the State presented evidence that, after defendant was involved in a one-vehicle accident, he was transported to the local hospital, where his blood was drawn and subjected to an alcohol analysis. This was not done at the request of the police, but as a part of standard hospital procedures. As a part of this analysis, his blood serum was separated from the whole blood, and the serum was subjected to the analysis. The analysis of his blood serum showed an alcohol concentration of 0.306. This result was admitted into evidence at defendant\u2019s trial. However, no evidence was presented as to the blood alcohol concentration in defendant\u2019s whole blood or how blood serum alcohol concentration related to whole blood alcohol concentration. Defendant argues on appeal that because the State failed to prove that his whole blood alcohol concentration was 0.08 or more, it failed to prove him guilty beyond a reasonable doubt.\nIt is now recognized that, although the term \u201cblood\u201d as used in the Code is not defined therein, the term refers to whole blood, and whole blood only, and that whole blood is the standard unit required by the Code. See People v. Green, 294 Ill. App. 3d 139, 144-45 (1997). Blood serum is different from whole blood because the lack of red and white blood cells and other particulate matter serves to increase the relative percentage of water within the serum, which, because alcohol has an affinity for water, results in higher alcohol concentration levels in blood serum than in whole blood. Green, 294 Ill. App. 3d at 145. Thus, while the results of a blood serum analysis are admissible at trial (People v. Menssen, 263 Ill. App. 3d 946, 953 (1994); Green, 294 Ill. App. 3d at 147), the State must still prove beyond a reasonable doubt that the defendant\u2019s whole blood alcohol concentration was 0.08 or more.\nEvidence 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. Green, 294 Ill. App. 3d at 147. Because a blood serum alcohol concentration test result can predictably be anywhere from 12% to 20% higher than a whole blood alcohol concentration test result (Menssen, 263 Ill. App. 3d at 953), blood serum concentration test results are converted by dividing by a corresponding factor between 1.12 to 1.20. See Green, 294 Ill. App. 3d at 146 n.2 (1.16 is the average of a range).\nThe State argues that Green is distinguishable from the case at bar because it involved the application of the presumptions set forth in section 11 \u2014 501.2(b) of the Code (625 ILCS 5/11 \u2014 501.2(b) (West 2000)), whereas the case at bar involves a violation of section 11\u2014 501(a)(1), and that the holding of Green that the term \u201cblood\u201d as used in the Code means whole blood applies only to prosecutions involving the presumptions provided in section 11 \u2014 501.2(b) and not to prosecutions involving section 11 \u2014 501(a)(1). In Green, the court held that a jury could not employ any of the presumptions provided in section 11 \u2014 501.2(b) of the Code (for example, that a person with a blood alcohol concentration of 0.08 or more is under the influence of alcohol) based on a person\u2019s blood serum alcohol concentration. Green, 294 Ill. App. 3d at 147. Such a presumption could only be employed on the basis of a person\u2019s whole blood alcohol concentration. Allowing a jury to employ such a presumption on the basis of a defendant\u2019s unconverted blood serum alcohol concentration level is error. Green, 294 Ill. App. 3d at 147.\nWe do not believe that the term \u201cblood\u201d means one thing for the purpose of section 11 \u2014 501.2(b) of the Code and something different for the purpose of section 11 \u2014 501(a)(1) of the Code. The State posits, and we can think of, no sensible reason why this should be so. We believe that the term means whole blood alcohol concentration for the purposes of both sections of the Code. Where the same word is used in different sections of the same statute, it should be given the same meaning unless something in the context indicates that the legislature intended otherwise. McMahan v. Industrial Comm\u2019n, 183 Ill. 2d 499, 513 (1998). Nothing in the Code indicates that the legislature intended the word \u201cblood\u201d to have a different meaning in these two sections. Thus, section 11 \u2014 501(a)(1) of the Code requires the State to prove that the defendant\u2019s whole blood alcohol concentration was 0.08 or more. It can do this only by presenting evidence of an actual whole blood alcohol concentration test result or from blood serum alcohol concentration test results converted into whole blood equivalents. Green, 294 Ill. App. 3d at 147. In the instant case, the State failed to present either type of evidence. Instead, the State presented only evidence of defendant\u2019s blood serum alcohol concentration test result.\nWe agree with defendant that the State failed to prove beyond a reasonable doubt that defendant\u2019s whole blood alcohol concentration was 0.08 or more. The jury was presented with evidence of defendant\u2019s blood serum alcohol concentration, but it was presented with no evidence of the conversion factor. It is not the defendant\u2019s burden to present this evidence, for the State bears the burden of proving every essential element of the offense beyond a reasonable doubt. See People v. Rose, 77 Ill. App. 3d 330, 335 (1979). The State could have proved the whole blood alcohol concentration through expert testimony regarding the conversion factor or through asking the trial court to take judicial notice of, and instruct the jury on, the appropriate conversion factor. See, e.g., 20 Ill. Adm. Code \u00a7 1286.40 (2001). It did neither.\nIn its brief on appeal, the State makes a \u201charmless error\u201d argument, arguing that, even if the highest conversion factor of 1.20 were applied to defendant\u2019s blood serum alcohol concentration test result, his whole blood alcohol concentration would still be over 0.08. The State is essentially arguing that, if it had presented sufficient evidence, defendant would have been proved guilty beyond a reasonable doubt, so any failure to present the evidence is harmless. The error in this argument is obvious. The State has the burden of proving defendant guilty beyond a reasonable doubt. Rose, 77 Ill. App. 3d at 335. We reject the use of a harmless error argument regarding the insuffir ciency of the evidence.\nThe absence of evidence of defendant\u2019s whole blood alcohol concentration at the time of his driving results in a failure of proof on an essential element of the charge of driving with an alcohol concentration of 0.08 or more. Accordingly, we reverse defendant\u2019s conviction and sentence based on the insufficiency of the evidence. In light of this disposition, we need not address the second argument raised by defendant on appeal.\nReversed.\nGOLDENHERSH and HOPKINS, JJ., concur.", "type": "majority", "author": "JUSTICE WELCH" } ], "attorneys": [ "Lou J. Viverito, of Taylor Law Offices, EC., of Effingham, for appellant.", "Steve Friedle, State\u2019s Attorney, of Vandalia (Stephen E. Norris and Sharon Shanahan, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEN A. THOMAN, Defendant-Appellant.\nFifth District\nNo. 5\u201401\u20140127\nOpinion filed May 24, 2002.\nLou J. Viverito, of Taylor Law Offices, EC., of Effingham, for appellant.\nSteve Friedle, State\u2019s Attorney, of Vandalia (Stephen E. Norris and Sharon Shanahan, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1216-01", "first_page_order": 1234, "last_page_order": 1238 }