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People v. Cortez10/14/2005
uestioned Larsen's dependence on a 1.18 conversion factor, and he pointed out relevant scientific writings that relied on various factors. However, Larsen responded that conversion factors ranging from 1.10 to 1.20 were generally accepted. Thus, the 1.18 conversion factor Larsen employed is generally accepted in the relevant scientific community, and Larsen's testimony was properly admitted. We also note that, to the extent defendant takes issue with Larsen's choosing 1.18 from the possible range of conversion factors, Larsen testified that, even if he had used the conversion factor most favorable to defendant (1.20), defendant's blood-alcohol level would still have measured over the statutory limit.
Defendant further argues that the blood draw here was not at the request of a law enforcement officer and thus Larsen's use of the conversion factor used by the Illinois State Police was improper. However, as the State points out, "the propriety of using 1.18 as the conversion factor depends on its accuracy and reliability in converting a serum blood reading to a whole blood equivalent, and not on who requests the blood sample." Larsen did not rely on the 1.18 conversion factor pursuant to statute. He relied on it based on his scientific judgment, and he noted that it was the same factor employed by the Illinois State Police. Defendant's argument is without merit.
Defendant's fifth argument on appeal is that the evidence adduced at trial was insufficient to prove him guilty beyond a reasonable doubt. When presented with a challenge to the sufficiency of the evidence, it is not the function of a reviewing court to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to have been proven beyond a reasonable doubt. Collins, 106 Ill. 2d at 261. Defendant notes that neither the paramedic nor Kern diagnosed defendant as intoxicated, but the trial court nonetheless could have relied on Patterson's testimony, the paramedic's testimony concerning defendant's admission to drinking, and the blood test results that indicated that defendant's blood-alcohol level exceeded the statutory limit. The trial court had ample evidence upon which to base its judgment.
In his reply brief, defendant argues for the first time that his blood test results should have been inadmissible because the testing procedure did not comply with the Department of State Police regulations for blood testing, as required by section 11--501.2(a)(1) of the Vehicle Code (625 ILCS 5/11--501.2(a)(1) (West 2002)). Defendant argues that the requirements of section 11--501.2(a)(1) apply here pursuant to the language of the section of the Vehicle Code defendant was convicted of violating:
"[Driving under the influence occurs when] the alcohol concentration in the person's blood or breath is 0.08 or more based on the definition of blood and breath units in section 11-- 501.2[.]" 625 ILCS 5/11--501(a)(1) (West 2002).
The State has filed a motion to strike this argument because it was raised for the first time in defendant's reply brief. Defendant claims to have raised the argument in his initial brief, and he provides us a specific page at which the argument was purportedly brought. However, the page defendant references contains argument that is in no way related to the new argument he raises in his reply brief. Instead, that portion of defendant's brief contains only defendant's argument, rejected above, that the use of a 1.18 conversion factor was improper because the blood was not drawn pursuant to an
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