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First Division
December 13, 2004

No. 1-03-0350

Following a September 2002 bench trial, defendant, Anthony Bishop, was convicted ofdriving under the influence of drugs (DUI) pursuant to section 11-501(a)(6) of the Illinois VehicleCode (625 ILCS 5/11-501(a)(6) (West 2000)) for a November 2001 automobile accident. Defendant appeals, arguing that (1) the State did not follow regulations when taking a urinesample; (2) the State failed to present evidence that the medication given to defendant in thecourse of treatment did not affect his urine sample; (3) the State failed to establish a sufficientchain of custody for the urine sample and did not deliver the sample to the police laboratorywithin an acceptable amount of time; (4) the trial court improperly imposed fees that did not existat the time of the offense or were a smaller statutory fee at the time of the offense; and (5) thetrial court failed to consider defendant's ability to pay in imposing fines on defendant.

The following evidence was presented at defendant's bench trial.

Dr. Jeffrey Silver testified that he is a general surgeon at Loyola University MedicalCenter. On November 20, 2001, Dr. Silver was on duty at about 11 p.m. Around that time, hewent to the emergency room in response to a person brought in after a vehicle collision. Dr.Silver identified that person as defendant. Dr. Silver characterized defendant as combative, in thathe was fighting off the efforts of the transport people, the "pre-op" team, and the emergencyroom staff. Defendant needed to be restrained. Defendant also seemed disoriented.

Dr. Silver stated that defendant was classified as a red trauma, meaning that there wasserious potential trauma. All red-level traumas "get" a urine and blood screen as part of thenormal course of medical treatment. Defendant's urine screen tested positive for cocaine andPCP.⁽¹⁾

On cross-examination, Dr. Silver stated that defendant was given medication duringtreatment. Dr. Silver testified that defendant was given succynil choline for intubation, Versed asa sedative, and Norcuron, a muscle sedative to temporarily paralyze the patient. Dr. Silver alsosaid that the urine sample was taken from defendant's catheter bag as part of the hospitalstandard, but he did not observe the actual draw of urine.

Frank Parra testified that on November 20, 2001, he was walking to the gas station atRoosevelt Road and Ridgeland Road in Oak Park, Illinois. He heard what he thought was a carcrash, but was actually a car jumping off the curb. It jumped the curb on Roosevelt and took out astreet sign. He turned to look and saw a car speeding from the front of Pete's Restaurant, whichis located at that intersection.

Parra continued to watch the car. He saw that the driver's-side door was open and thedriver had his left foot out of the door. Parra saw that the driver's right foot was on theaccelerator. He did not see the driver hit the brake at any point. Parra was between 15 and 20feet away when he first observed the car. Parra watched the car go from Roosevelt to Ridgelandand drive on the opposite side of the street. The car was heading northbound on Ridgeland in thesouthbound lane. The car kept crossing traffic. Parra saw the car turn toward an alley, but itmissed, hit a guard rail and crashed head first into a dumpster in the back of Pete's Restaurant.

Parra went over to the car and saw that the dumpster was on top of the car. Parra saw thedriver of the vehicle and identified him as defendant. Parra told defendant to relax and that anambulance was being called. Defendant said nothing. Parra stated that defendant appearedconfused and "out of it."

Officer O'Connor with the Oak Park police department testified that he was called to thescene at Roosevelt and Ridgeland on November 20, 2001. He observed a red Mercury pinnedunderneath a dumpster which was located on the side of a restaurant. Officer O'Connor identifieddefendant as the driver of the vehicle. Defendant was unconscious when Officer O'Connor firstsaw him, but he opened his eyes when the officer tapped him on the shoulder. Officer O'Connorasked him if was hurt, but defendant mumbled and Officer O'Connor was unable to understandhim.

Officer O'Connor later testified that he read the "Warning to Motorists" to defendant atthe hospital. Defendant was unconscious at that time. He also wrote defendant tickets for drivingon a sidewalk and two DUI tickets.

Kyle Bush testified that he is a firefighter paramedic for the Oak Park fire department andon November 20, 2001, he was dispatched to a motor vehicle accident on Ridgeland. He saw avehicle wedged underneath a dumpster behind a restaurant. Bush identified defendant as thedriver of the car. Once defendant was extricated from the vehicle, Bush observed that defendantappeared very confused and bewildered. Defendant was unable to recall events prior to theaccident. Defendant either did not answer or answered inappropriately to the questions asked byBush and other paramedics. He did not answer when Bush asked the defendant if he knew wherehe was. Defendant also did not answer when asked if he knew his name or how he gotunderneath the dumpster.

Defendant was immediately placed on a back board and collar. As part of his work duties,Bush has received training about the signs and symptoms of people under the influence of drugs. Bush also has observed many people under the influence of drugs in the course of his work as aparamedic. Bush stated that defendant presented the signs of an altered mental status. Headministered a drug to defendant that reverses the effect of narcotics and opiates.

On cross-examination, Bush stated that he administered the drugs intravenously. He saidthat he cleaned the area with an alcohol swab and Providone Iodine swab.

Officer Razzino of the Oak Park police department testified that in the early morninghours of November 21, 2001, he responded to assist Officer O'Connor at Loyola Hospital. Ataround 3:30 a.m., Officer Razzino directed a patient care technician to draw samples fromdefendant. Officer Razzino opened a sealed DUI kit to get the materials. He observed thetechnician draw two vials of blood via defendant's intravenous tube. The vials were sealed withthe proper label from the DUI kit. Officer Razzino wrote the date, his badge number and hisinitials, and defendant's name on the vials and the hospital technician initialed them as well, andOfficer Razzino placed them back into the DUI kit. Two sealed and clean plastic containers fromthe DUI kit were used to obtain defendant's urine sample. The urine was drawn from defendant'scatheter. The urine samples were sealed and the same identifying information was written on thecontainers as on the vials, and then placed in the DUI kit. Then, Officer Razzino sealed the DUIkit with a label and Officer Razzino wrote additional identifying information on the sealed DUIkit.

The DUI kit remained in his possession until Office O'Connor returned to the hospital andhe gave the kit to Officer O'Connor. Officer O'Connor returned the DUI kit to the police stationand Officer Razzino assisted in inventorying the kit. It was placed in the evidence technician'srefrigerator. Officer Razzino does not personally know how the DUI kit was delivered to thelaboratory.

Jennifer Wanat testified that she is a forensic scientist with the Illinois State Police,Westchester Forensic Laboratory. Wanat stated that she first received the sealed DUI kit onDecember 6, 2001. The DUI kit was dropped off at the laboratory by Officer Durfor. The DUIkit was sealed with tamper-proof seals provided in the kit. It had not been opened since the finalseal was placed on the kit. Wanat made copies of the DUI kit. Wanat opened the kit andobserved two vials of blood and two samples of urine. All samples were sealed with labels andidentified with defendant's name on the label as well as the investigating officer's badge number,the date and offense. Wanat performed a series of tests on the urine sample, and the test resultsindicated the presence of cocaine, metabolites, midazolam, morphine, and PCP. After shecompleted her analysis, Wanat placed the samples back into the kit and placed them in theevidence vault.

Wanat also testified that she has had training to state the typical reaction a person mayhave from medication. Wanat stated that she has heard of Versed and that it is like a sedative. Wanat said that Versed would not influence the results of her testing. Wanat stated that she is notfamiliar with Norcuron. She did not testify any further on any possible effect medication wouldhave on defendant's sample.

On cross-examination, Wanat testified that the DUI kit was received at the lab by aforensic scientist named Tara Langheim. Langheim placed the kit in a refrigerator and then thetoxicologist vault, and Wanat retrieved it from the vault. Wanat did her testing in this case fromDecember 10 to 13 of 2001. Between December 6 and 10, Wanat completed testing on herprevious case group.

Officer O'Connor was recalled and testified that he received the DUI kit from OfficerRazzino. Officer O'Connor transported the kit in his squad car to the police station from LoyolaHospital. He inventoried the DUI kit at the station with Officer Razzino.

Following Officer O'Connor, the State rested. Defendant moved for a directed verdict,which the trial court denied. The defense rested. The trial court found defendant guilty of DUIunder section 11-501(a)(6) of the Illinois Vehicle Code ( 625 ILCS 5/11-501(a)(6) (West 2000))and guilty of failing to reduce speed to avoid an accident.

The record on appeal does not contain a transcript of defendant's sentencing hearing. Therecord contains a certification by the official court reporter that he made "a thorough and diligentsearch of all stenographic notes recorded by me on the day of February 10, 2003, before theHonorable Susan M. Coleman, Judge of said Court, and I find no recordings of proceedings of theabove-entitled cause." The parties presented an agreed statement of facts indicating that the trialcourt sentenced defendant to 18 months' supervision and fined him $555.

This appeal followed.

Defendant challenges the urine sample taken for the police investigation because it was notdrawn in strict compliance with section 1286.330(d) of the Illinois State Police Regulations (20Ill. Adm. Code