{ "id": 4276266, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAREN BAIR, Defendant-Appellant", "name_abbreviation": "People v. Bair", "decision_date": "2008-02-04", "docket_number": "No. 1-06-2656", "first_page": "51", "last_page": "62", "citations": [ { "type": "official", "cite": "379 Ill. App. 3d 51" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "206 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578235 ], "year": 2003, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0465-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "219-20" }, { "page": "220" }, { "page": "220" }, { "page": "220" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "parenthetical": "adopting Strickland" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "225 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704722 ], "weight": 6, "year": 2007, "pin_cites": [ { "page": "135" }, { "page": "135" }, { "page": "135" }, { "page": "135" }, { "page": "135" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0125-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "218 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735992 ], "year": 2005, "pin_cites": [ { "page": "139", "parenthetical": "\"Clearly, there can be no plain error if there is no error\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0125-01" ] }, { "cite": "218 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5736047 ], "year": 2005, "pin_cites": [ { "page": "121", "parenthetical": "where there was no error at all, there cannot be plain error" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0104-01" ] }, { "cite": "108 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129506 ], "year": 1985, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0228-01" ] }, { "cite": "348 Ill. App. 3d 72", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4021926 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "76-77" }, { "page": "77" }, { "page": "76-77" }, { "page": "76-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0072-01" ] }, { "cite": "363 Ill. App. 3d 613", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5767388 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "628" }, { "page": "628" }, { "page": "629" }, { "page": "628" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0613-01" ] }, { "cite": "118 Ill. 2d 153", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188399 ], "year": 1987, "pin_cites": [ { "page": "160", "parenthetical": "\"absent compliance, test results will be considered invalid and hence inadmissible\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0153-01" ] }, { "cite": "113 Ill. 2d 343", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172977 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "350", "parenthetical": "discussing section 11- 501.2 (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 11 - 501.2), the precursor to section 11 - 501.2 (625 ILCS 5/11 - -501.2 (West 2004))" }, { "page": "350" }, { "page": "346-47" }, { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0343-01" ] }, { "cite": "31 Ill. Reg. 10188", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 3, "year": 2007, "pin_cites": [ { "parenthetical": "emergency amendment, in effect only for 150 days" } ], "opinion_index": 0 }, { "cite": "31 Ill. Reg. 15107", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 4, "pin_cites": [ { "parenthetical": "permanently amended" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 160", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136779 ], "year": 2005, "pin_cites": [ { "page": "170", "parenthetical": "\"[gjeneral objections\" do not preserve issues for review" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0160-01" ] }, { "cite": "216 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3827784 ], "year": 2005, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0023-01" ] }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "369 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267422 ], "year": 2006, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0614-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "564" }, { "page": "565" }, { "page": "565", "parenthetical": "plain error doctrine requires \"first\" that an error occurred" }, { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "214 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451309 ], "weight": 9, "year": 2005, "pin_cites": [ { "page": "470" }, { "page": "467" }, { "page": "472-73" }, { "page": "468" }, { "page": "470" }, { "page": "471" }, { "page": "471" }, { "page": "471" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0455-01" ] }, { "cite": "221 Ill. 2d 613", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704169 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "617" }, { "page": "617" }, { "page": "617" }, { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0613-01" ] }, { "cite": "28 Ill. Reg. 10017", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 1023, "char_count": 27974, "ocr_confidence": 0.749, "pagerank": { "raw": 6.620568495273663e-08, "percentile": 0.40414595599975134 }, "sha256": "65dffe6419e3f18cea361714a18e368ad9a33ac8d83ea80689a24c552f9a3e2f", "simhash": "1:8fb365fa7cadd168", "word_count": 4600 }, "last_updated": "2023-07-14T21:50:11.340315+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. MAREN BAIR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nAfter a bench trial on March 28, 2006, defendant Maren Bair was convicted of driving under the influence of alcohol (DUI) and sentenced on September 7, 2006, to 12 months\u2019 supervision. Defendant appeals on the ground that the doctor failed to disinfect her skin prior to drawing a blood sample, as then required by the Illinois Administrative Code (20 Ill. Adm. Code \u00a71286.320(c), amended at 28 Ill. Reg. 10017, eff. June 30, 2004). For the reasons discussed below, we affirm.\nBACKGROUND\nDefendant was charged with driving a motor vehicle while the alcohol concentration in her blood or breath was 0.08 or more, in violation of section 11 \u2014 501(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11 \u2014 501(a)(1) (West 2004)). On March 28, 2006, defendant waived her right to a jury trial both in open court and in writing, and the case proceeded to a bench trial. The State\u2019s first witness, Neal Se-mar, testified that, at approximately 6:20 a.m. on August 27, 2005, Se-mar was the sole passenger in a vehicle driven by defendant on Route 290 in Chicago, when the vehicle became involved in an accident.\nThe State\u2019s second witness, Robert Goodman, testified that at approximately 6:20 a.m. on August 27, 2005, he was driving a tractor-trailer truck eastbound on Route 290 in Chicago, when he observed an accident. Law enforcement personnel were on the scene and had blocked off the center lane and the right lane. As a result, the traffic was forced to merge into the left lane while passing the accident. After Goodman drove past the accident, he moved his truck into the right lane.\nGoodman further testified that he observed a light-colored Saturn automobile starting to move from the left lane into the center lane. A dark automobile in the center lane tapped the bumper of the Saturn, and the Saturn went into a 360-degree spin. The Saturn \u201ccame across all the lanes of traffic,\u201d hit the concrete barrier wall toward the passenger\u2019s side of Goodman\u2019s truck and then \u201cflipped\u201d into Goodman\u2019s lane of traffic, right in front of Goodman\u2019s truck. Goodman\u2019s truck then struck the \u201cupside-down\u201d Saturn, which \u201cwent flying down the road.\u201d\nGoodman further testified that he stopped his truck and approached the Saturn. A young male passenger, later identified as Se-mar, exited the Saturn and then helped a woman, later identified as defendant, out of the Saturn. Emergency personnel at the scene of the first accident arrived quickly at the scene of the Saturn\u2019s accident.\nIllinois State Trooper Bergeman testified as follows. On August 27, 2005, at 6:20 a.m., he was on duty and assigned to the Eisenhower Expressway, Interstate 290, in Chicago, when he received a call concerning a rollover accident. After he arrived at the accident scene, he observed a Saturn resting on its roof, a parked tractor-trailer truck, several other vehicles and a young woman, later identified as defendant, sitting on the shoulder of the road and surrounded by several other people. Bergeman observed that defendant had several facial lacerations. An ambulance arrived and transported defendant to Cook County Hospital. Bergeman transported Semar, the Saturn\u2019s passenger, to Cook County Hospital because Semar had no other means of transportation. After Bergeman arrived at the hospital, defendant was taken to an X-ray unit and Bergeman waited approximately an hour to interview her.\nBergeman testified that during his interview of defendant, he noticed an odor of alcohol on her breath. Defendant admitted that she had been drinking earlier. Bergeman issued defendant a ticket, read \u201cWarnings to Motorists\u201d to her and asked her to submit to \u201ca DUI kit.\u201d Bergeman then asked Dr. Dabbah, one of defendant\u2019s treating physicians, to obtain two blood samples from defendant. At 9:40 a.m., Bergeman observed the doctor utilize two vials from a DUI kit to obtain the blood samples. Bergeman did not recall whether the doctor used a disinfectant. The vials were returned to the kit, which was initialed and sealed. Bergeman completed the paperwork that had been in the kit and transported the kit from the hospital to the evidence vault at the district headquarters of the State Police in Des Plaines.\nDr. Dabbah testified as follows. On August 27, 2005, he was a resident physician at Cook County Hospital, where he encountered defendant in the trauma unit. During the doctor\u2019s interview of defendant, the doctor smelled alcohol on her breath and defendant admitted to him that she \u201cdrank the night before into the early morning.\u201d After a discussion with Trooper Bergeman, Dr. Dabbah obtained two blood samples from defendant, in the trooper\u2019s presence. Concerning the lack of disinfectant, Dr. Dabbah testified:\n\u201cQ. And you indicated that you didn\u2019t sterilize the defendant\u2019s arm, why is that?\nDR. DABBAH: Because if you wipe her arm with alcohol, it can supposedly contaminate the specimen.\u201d\nAfter drawing two vials of blood, Dr. Dabbah labeled the vials and gave them to the State trooper. Dr. Dabbah witnessed Trooper Bergeman seal the vials into the DUI kit.\nDr. Dabbah testified that he remembered well the events concerning defendant because this was the first time that he had ever drawn blood for a DUI kit. The kit came with an instruction booklet, and he and the trooper read the instruction booklet before he drew defendant\u2019s blood. He also testified that a person\u2019s blood-alcohol level generally decreases over time, because the body metabolizes a certain amount per hour. He explained that shortly after a person consumes alcohol, his or her blood-alcohol level will rise and \u201cpeak.\u201d Then the level will decrease over time.\nJacqueline Provenzale, a forensic scientist employed by the Illinois State Police laboratory, was accepted by the trial court as an expert \u201cin the area of toxicology and forensic science.\u201d Defense counsel did not object to her acceptance as an expert, subject to cross-examination. Provenzale testified that on September 22, 2005, she removed two vials of defendant\u2019s blood from a sealed DUI kit and tested the blood for blood-alcohol level. Based on the tests she performed, her opinion was that the ethanol was 0.108 grams per deciliter. Defense counsel objected on \u201cfoundation\u201d grounds to Provenzale stating her opinion concerning the amount of ethanol in defendant\u2019s blood. The trial court overruled the objection. Provenzale then responded affirmatively to the question of whether her opinion was \u201cbased on a degree of scientific certainty.\u201d Provenzale also explained that, normally, the blood-alcohol level will \u201cpeak\u201d within an hour and a half after consumption. After it peaks, it will begin to decrease.\nProvenzale further testified that if an alcohol swab is used to clean the skin prior to the drawing of blood, the swab will have no effect on the person\u2019s blood-alcohol level. She explained that the instrumentation used in her laboratory distinguishes between different types of alcohol, such as ethanol and isopropanol. She testified that isopropanol is known commonly as rubbing alcohol and is the type of alcohol found in alcohol swabs. Prior to her employment with the Illinois State Police, she worked at a hospital where she drew blood thousands of times.\nDefense counsel moved to bar all of Provenzale\u2019s testimony on the ground that the prosecutor did not provide defendant with the log sheet on which Provenzale made notes while she was performing the blood tests. Provenzale testified that the log sheet contained information concerning \u201cthe controls and the samples that are run that day.\u201d The trial court denied the motion.\nAfter cross-examination, defense counsel objected to Provenzale\u2019s qualifications to testify as an expert about \u201cwhat goes on in the body as to alcohol rising and falling\u201d and moved to bar her testimony on that subject. The trial judge admitted the testimony, stating that since this was \u201ca bench trial, I am the one that\u2019s going to determine the weight and credibility.\u201d\nDefense counsel objected to the admission of: (1) the vials of the blood, stating \u201cobject for the record for foundation\u201d; (2) the photocopies made by Provenzale of the seals on the DUI kit, on the ground that the photocopies did not qualify under the business records exception to the hearsay rule; and (3) Provenzale\u2019s laboratory report, also on business record grounds. The trial court admitted all three exhibits into evidence.\nDefense counsel moved for a directed verdict claiming that the State had not completed the chain of custody for the sealed DUI kit, because the State did not call as a witness the state trooper who transported the kit from State Police headquarters to the State Police laboratory. After the trial court denied the motion, the defense rested without calling witnesses or presenting evidence.\nDuring closing argument, defense counsel stated: \u201cJudge, we\u2019re not contesting whether or not Ms. Bair was driving the car that night. That\u2019s not an issue in this case.\u201d Defense counsel argued that the trial court should find defendant not guilty of the DUI charge because of: \u201cthe chain of evidence problem\u201d; the lack of evidence as to whether defendant received alcohol-based medication or disinfectant from the emergency medical personnel; the possibility that defendant\u2019s blood-alcohol level rose from the time of the accident and peaked at the time of the blood draw; and the defendant\u2019s inability to cross-examine Provenzale about her log sheet.\nAfter hearing closing argument from both sides, the trial court found the defendant guilty on the charge of driving under the influence in violation of section 11 \u2014 501(a)(1) (625 ILCS 5/11 \u2014 501(a)(1) (West 2004)). On April 13, 2006, the defendant filed a motion for a new trial, which alleged generally that defendant was deprived of her due process rights without specifying the deprivation. On June 9, 2006, the defendant filed an amended motion that claimed \u201cthe court erred in allowing testimony of Ms. Bair\u2019s blood draw because there was no testimony that a disinfectant was used,\u201d as required by regulation.\nOn September 7, 2006, after hearing argument from counsel, the trial court denied the motion for a new trial stating: \u201cCounsel, I\u2019m just not at all sure you even preserved the argument as to the regulations.\u201d The defendant was then sentenced to 12 months\u2019 supervision, with a scheduled termination date of September 6, 2007. A notice of appeal was filed on September 7, 2006, and this appeal followed.\nANALYSIS\nDefendant appeals on the ground that the doctor failed to disinfect her skin prior to drawing a blood sample, as then required by the Illinois Administrative Code (20 Ill. Adm. Code \u00a71286.320(c), amended at 28 Ill. Reg. 10017, eff. June 30, 2004). Defendant puts forth two legal theories as to why this claimed error entitles her to a new trial: (1) the trial court erred in admitting evidence acquired in violation of the Administrative Code; and (2) her trial counsel was ineffective for failing to file a motion in limine to exclude the test results at trial.\nSince defendant\u2019s claim involves statutory and code interpretation only, it is purely a question of law, and our standard of review is de novo. People ex rel. Devine v. Sharkey, 221 Ill. 2d 613, 617 (2006).\nThis court will review defendant\u2019s claim only for plain error, because defendant failed to object specifically on this ground at trial. The Illinois Supreme Court has held that a \u201cdefendant must both specifically object at trial and raise the specific issue again in a post-trial motion to preserve an alleged error for review.\u201d People v. Woods, 214 Ill. 2d 455, 470 (2005); People v. Piatkowski, 225 Ill. 2d 551, 564 (2007).\nThe defendant claims that she preserved her claim about the lack of disinfectant, when she objected as to \u201cfoundation\u201d before the laboratory scientist gave her opinion about the level of ethanol in the defendant\u2019s blood. The following portion of the trial transcript shows the context for defendant\u2019s objection:\n\u201cPROSECUTOR: From these tests, were you able to form an opinion as to the level of ethanol in the defendant\u2019s blood?\nMS. PROVENZALE: Yes, I was.\nPROSECUTOR: And what is your opinion?\nDEFENSE ATTORNEY: Objection, foundation.\nPROSECUTOR: Judge, all the foundation has been laid.\nTHE COURT: Overruled.\nPROSECUTOR: What is your opinion?\nMS. PROVENZALE: The ethanol was 0.108 grams per deciliter.\u201d\nThe defendant does not claim that the above objection to \u201cfoundation\u201d was an objection to the expert\u2019s qualifications or the conclusions that the expert drew from her tests. The supreme court has held that the failure to request a Frye hearing results in the waiver of any objection to the qualifications or conclusions of an expert. People v. Swart, 369 Ill. App. 3d 614, 632 (2006), citing Snelson v. Kamm, 204 Ill. 2d 1 (2003).\nAfter the above-quoted exchange, the prosecutor asked whether the scientist\u2019s opinion was based on \u201ca degree of scientific certainty\u201d rather than a reasonable degree of scientific certainty. However, defense counsel did not object to this question. Thus, the scientific certainty of the witness\u2019s opinion is not an issue before this court.\nInstead, defendant claims that the admissibility of the blood samples was compromised by the lack of disinfectant. The Illinois Supreme Court has held that the State lays an adequate foundation for an object when it identifies the object either through witnesses or a chain of custody. Woods, 214 Ill. 2d at 467. In Woods, the supreme court held that the State laid an adequate foundation for an exhibit of cocaine by introducing evidence that an officer had seized the cocaine from defendant\u2019s van and the chemist had received the cocaine in a sealed condition, with the same inventory number assigned by the seizing officer. Woods, 214 Ill. 2d at 472-73. Similarly, in the case at bar, the State introduced evidence that the doctor had obtained the blood samples from defendant and that the forensic scientist had received the samples in a sealed condition. Thus, in the case at bar, the State had laid an adequate foundation for the blood samples obtained from the defendant.\nOnce the State made a prima facie showing of an adequate foundation, the defendant was required to show evidence of an actual problem that would compromise the evidence. Woods, 214 Ill. 2d at 468; Gumma v. White, 216 Ill. 2d 23, 42 (2005). The supreme court has held that requiring a defendant to \u201cspecifically object at trial\u201d is \u201cparticularly appropriate when a defendant argues that the State failed to lay the proper foundation for the admission of evidence.\u201d Woods, 214 Ill. 2d at 470. In the case at bar, not only did the defendant fail to bring evidence of the claimed problem to the court\u2019s attention, the defendant did not even name the problem \u2014 namely, the lack of disinfectant. The defendant\u2019s general objection of \u201cfoundation\u201d was not sufficiently specific to preserve the issue for review. People v. Bock, 357 Ill. App. 3d 160, 170 (2005) (\u201c[gjeneral objections\u201d do not preserve issues for review).\nWhen a defendant has failed to preserve an error for review, an appellate court may still review for plain error. \u201c[T]he plain error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d Piatkowski, 225 Ill. 2d at 565; Woods, 214 Ill. 2d at 471. With plain error analysis, \u201cit is the defendant who bears the burden of persuasion with respect to prejudice.\u201d Woods, 214 Ill. 2d at 471.\nAdministrative Code Section\nSection 1286.320 of the Illinois Administrative Code governs the procedure for blood-alcohol tests for DUI prosecutions in Illinois. 20 Ill. Adm. Code \u00a71286.320(c) (amended at 31 Ill. Reg. 15107, eff. October 29, 2007). The version of section 1286.320(c) which was in effeet on the date of defendant\u2019s offense stated: \u201cA disinfectant that does not contain alcohol shall be used to clean the skin where a sample is to be collected.\u201d 20 Ill. Adm. Code \u00a71286.320(c), amended at 28 Ill. Reg. 10017, eff. June 30, 2004.\nSection 1286.320(c) was amended, effective July 19, 2007, to read: \u201cThe blood sample should be drawn using proper medical technique.\u201d 31 Ill. Reg. 10188 (July 13, 2007) (emergency amendment, in effect only for 150 days); 31 Ill. Reg. 15107 (November 9, 2007) (permanently amended). The Department of State Police, which is the issuing agency for this section, explained that it eliminated the disinfection requirement because: \u201cthe Department has been informed that all manufacturers\u2019 disinfectant wipes contain trace amounts of alcohol.\u201d 31 Ill. Reg. 10188 (July 13, 2007); 31 Ill. Reg. 15107 (November 9, 2007).\nThe doctor testified that prior to drawing defendant\u2019s blood, he read the instructions in the DUI kit. When asked why he did not disinfect the defendant\u2019s arm, he replied: \u201cBecause if you wipe her arm with alcohol, it can supposedly contaminate the specimen.\u201d\nStatutory Section\nThe defendant does not claim that the lack of disinfectant tainted the blood sample or that the results of the blood-alcohol test were unreliable. The Department of State Police stated that its disinfection requirement was only \u201c[f]or the subject\u2019s well-being,\u201d and thus not for evidence collection purposes. 31 Ill. Reg. 10188 (July 13, 2007); 31 Ill. Reg. 15107 (November 9, 2007).\nThe defendant claims only that an Illinois statute required compliance with the Administrative Code, and the doctor failed to comply. Section 11 \u2014 501.2 (625 ILCS 5/11 \u2014 501.2(a)(1) (West 2004)) governs the admissibility of blood-alcohol test results in DUI prosecutions. It states that \u201cto be considered valid,\u201d a blood-alcohol test \u201cshall have been performed according to standards promulgated by the Department of State Police.\u201d 625 ILCS 5/11 \u2014 501.2(a)(1) (West 2004). Our supreme court held that the word \u201cshall\u201d in this statute is mandatory. People v. Emrich, 113 Ill. 2d 343, 350 (1986) (discussing section 11\u2014 501.2 (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 11 \u2014 501.2), the precursor to section 11 \u2014 501.2 (625 ILCS 5/11 \u2014 -501.2 (West 2004))); People v. Hamilton, 118 Ill. 2d 153, 160 (1987) (\u201cabsent compliance, test results will be considered invalid and hence inadmissible\u201d). In Emrich, the supreme court stated unequivocally that \u201ccompliance with the standards is a prerequisite to admissibility on a DUI charge.\u201d Emrich, 113 Ill. 2d at 350.\nEmrich is distinguishable from the case at bar, because the purpose of the regulation in Emrich was to ensure the valdity of the test results. Emrich, 113 Ill. 2d at 346-47.\nThe legislature delegated authority to the Department of State Police to promulgate \u201cstandards\u201d for blood and other tests, for the purpose of ensuring the validity of the test results. Section 11 \u2014 501.2 states:\n\u201cChemical analyses of the person\u2019s blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police ***.\u201d (Emphasis added.) 625 ILCS 5/11 \u2014 501.2(a)(1) (West 2004).\nThe law states that \u201cto be considered valid\u201d the tests must have been \u201cperformed according to [the Department\u2019s] standards.\u201d 625 ILCS 5/11 \u2014 501.2(a)(1) (West 2004). Thus, the intended purpose of the standards was to ensure the tests\u2019 validity. Our supreme court has held that this section \u201cwas intended to insure reliability of evidence.\u201d Emrich, 113 Ill. 2d at 349. When the Department of State Police required disinfectant, not for the test\u2019s validity, but solely \u201cfor the subject\u2019s well-being,\u201d the Department exceeded the authority delegated by the statute.\nAdministrative regulations are presumed to be valid. People ex rel. Madigan v. Petco Petroleum, Corp., 363 Ill. App. 3d 613, 628 (2006). However, an administrative agency has only the authority to promulgate regulations that the statute conferred. Petco, 363 Ill. App. 3d at 628; Illinois RSA No. 3, Inc. v. Department of Central Management Services, 348 Ill. App. 3d 72, 76-77 (2004). Administrative regulations are valid \u201c \u2018only to the extent that they follow the statute.\u2019 \u201d Petco, 363 Ill. App. 3d at 629, quoting Illinois RSA No. 3, Inc., 348 Ill. App. 3d at 77. Thus, an administrative regulation that does not follow the statute is invalid. Petco, 363 Ill. App. 3d at 628; Illinois RSA No. 3, Inc., 348 Ill. App. 3d at 76-77. To determine whether a regulation follows the statute, a court must ascertain and give effect to the legislature\u2019s intent. Petco, 363 Ill. App. 3d at 628; Illinois RSA No. 3, Inc., 348 Ill. App. 3d at 76-77.\n\u201cOur aim is to ascertain and give effect to the true intent of the legislature.\u201d Devine, 221 Ill. 2d at 617. \u201c[T]he best evidence\u201d of the legislature\u2019s true intent is \u201cthe language used in the statute itself.\u201d Devine, 221 Ill. 2d at 617. \u201c[Ajlthough statutory language ought to be given its plain and ordinary meaning, we construe statutes as a whole\u201d with each phrase construed in connection with every other phrase. Devine, 221 Ill. 2d at 617. Construing the phrase \u201cto be considered valid\u201d with the phrase \u201caccording to standards promulgated\u201d by the Department, we find that the true intent of the legislature was for the Department to promulgate standards that would ensure the validity of the tests. As our supreme court has previously held, the section\u2019s \u201clegislative design\u201d shows that the section\u2019s purpose was to insure that test results were \u201creliable.\u201d People v. Murphy, 108 Ill. 2d 228, 234 (1985). Thus, the Department exceeded the authority delegated in the statute when it passed a requirement unrelated to validity of test results.\nIn the case at bar, the admission of the test results at trial was not error, despite the doctor\u2019s failure to comply with an administrative regulation, because the regulation was not valid. Where there is no error, there can be no plain error. Piatkowski, 225 Ill. 2d at 565 (plain error doctrine requires \u201cfirst\u201d that an error occurred); People v. Nicholas, 218 Ill. 2d 104, 121 (2005) (where there was no error at all, there cannot be plain error); People v. Johnson, 218 Ill. 2d 125, 139 (2005) (\u201cClearly, there can be no plain error if there is no error\u201d).\nIn addition, even if there was an error, it certainly did not rise to the level of plain error. As stated earlier, \u201cthe plain error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d Piatkowski, 225 Ill. 2d at 565; Woods, 214 Ill. 2d at 471.\nThe claimed error does not satisfy either prong of plain error review. First, the evidence in the case at bar was not closely balanced. Both the doctor and the state trooper were still able to notice the smell of alcohol on defendant\u2019s breath, even three hours after the accident. Defendant admitted to both the doctor and the trooper that she had been drinking during the night and into the early morning. The blood-alcohol test showed that the alcohol level in her blood was 0.108 grams per deciliter. There was no evidence that the lack of disinfectant affected the reliability of the test. Thus, the evidence in the case at bar was overwhelming.\nSecond, the doctor\u2019s failure to comply with \u00e1n invalid regulation is not \u201cso serious\u201d an error \u201cthat it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process.\u201d Piatkowski, 225 Ill. 2d at 565; Woods, 214 Ill. 2d at 471.\nIn sum, the trial court did not err; and even if it had, the error did not rise to the level of plain error.\nClaim of Ineffective Assistance of Counsel\nDefendant claims that her trial counsel was ineffective for failing to file a motion in limine to exclude her blood-alcohol test results at trial, on the ground that the doctor failed to disinfect her skin prior to drawing a blood sample.\nThe Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, an appellate court must apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007), citing People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland). Under Strickland, a defendant must prove both that (1) counsel\u2019s performance was deficient, and (2) the deficient performance prejudiced the defense. Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 219-20 (2004); Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.\nUnder the first prong of the Strickland test, the defendant must prove that his counsel\u2019s performance fell below an objective standard of reasonableness \u201cunder prevailing professional norms.\u201d Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. Under the second prong, the defendant must show that, \u201cbut for\u201d counsel\u2019s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. \u201c[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome \u2014 or put another way, that counsel\u2019s deficient performance rendered the result of the trial unreliable or fundamentally unfair.\u201d Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135.\nTo prevail, the defendant must satisfy both prongs of the Strickland test. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. \u201cThat is, if an ineffective-assistance claim can be disposed of because the defendant suffered no prejudice, we need not determine whether counsel\u2019s performance was deficient.\u201d People v. Graham, 206 Ill. 2d 465, 476 (2003).\nIn the case at bar, defendant suffered no prejudice because, as discussed earlier, the motion would not have succeeded.\nCONCLUSION\nFor the foregoing reasons, we affirm. Defendant claimed that the results of her blood-alcohol test should have been excluded because the doctor failed to swab her arm prior to drawing blood, as then required by the Illinois Administrative Code. Defendant also claimed that she received ineffective assistance of counsel because her trial counsel failed to file a motion in limine to exclude the test results.\nSince defendant failed to object specifically at trial concerning the lack of disinfectant, she waived the issue for appellate review and this court reviewed only for plain error. The admission of the test results at trial was not error, despite the doctor\u2019s failure to comply with an administrative regulation, because the regulation exceeded the issuing department\u2019s authority. Since the claim would not have succeeded, defense counsel was not ineffective.\nAffirmed.\nCAHILL, EJ., and GARCIA, J., concur.", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Michael J. Pelletier and Deborah K. Pugh, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Matthew Connors, and Maren Ronan, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAREN BAIR, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201406\u20142656\nOpinion filed February 4, 2008.\nRehearing denied March 6, 2008.\nModified opinion filed March 17, 2008.\nMichael J. Pelletier and Deborah K. Pugh, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Matthew Connors, and Maren Ronan, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0051-01", "first_page_order": 67, "last_page_order": 78 }