Rule 23 Order filed

April 23, 2002;

Motion to publish granted

JUSTICE WELCH delivered the opinion of the court:

Ken A. Thoman (defendant) appeals from his conviction, following a jury trial in thecircuit court of Fayette County, for driving with a blood alcohol concentration of 0.08 ormore in violation of section 11-501(a)(1) of the Illinois Vehicle Code (Code) (625 ILCS5/11-501(a)(1) (West 2000)). He raises two issues on appeal: whether the evidencepresented at the trial was sufficient to prove him guilty beyond a reasonable doubt where noevidence of the alcohol concentration in his "whole blood" was presented but only evidenceof the alcohol concentration in his "blood serum" and whether the trial court erred inallowing into evidence the result of the blood serum alcohol analysis where the State failedto establish the necessary and proper foundation for its admission. We will set forth onlythose facts necessary to our disposition on appeal.

Defendant was charged by information filed in the circuit court of Fayette County onJanuary 5, 2001, with driving with a blood alcohol concentration of 0.08 or more inviolation of section 11-501(a)(1) of the Code and with driving while under the influence ofalcohol in violation of section 11-501(a)(2) of the Code (625 ILCS 5/11-501(a)(1), (a)(2)(West 2000)). On the State's own motion, the charge of driving while under the influenceof alcohol was dismissed during the trial. A jury convicted defendant of driving with ablood alcohol concentration of 0.08 or more, and on February 12, 2001, defendant wassentenced to 18 months' probation.

At defendant's jury trial, the State presented evidence that, after defendant wasinvolved in a one-vehicle accident, he was transported to the local hospital, where his bloodwas drawn and subjected to an alcohol analysis. This was not done at the request of thepolice, but as a part of standard hospital procedures. As a part of this analysis, his bloodserum 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 wasadmitted into evidence at defendant's trial. However, no evidence was presented as to theblood alcohol concentration in defendant's whole blood or how blood serum alcoholconcentration related to whole blood alcohol concentration. Defendant argues on appeal thatbecause the State failed to prove that his whole blood alcohol concentration was 0.08 ormore, it failed to prove him guilty beyond a reasonable doubt.

It is now recognized that, although the term "blood" as used in the Code is notdefined therein, the term refers to whole blood, and whole blood only, and that whole bloodis 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 bloodcells and other particulate matter serves to increase the relative percentage of water withinthe serum, which, because alcohol has an affinity for water, results in higher alcoholconcentration 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 provebeyond a reasonable doubt that the defendant's whole blood alcohol concentration was 0.08or more.

Evidence of a defendant's whole blood alcohol concentration level may stem fromactual whole blood alcohol concentration test results or from blood serum alcoholconcentration test results converted into whole blood equivalents. Green, 294 Ill. App. 3dat 147. Because a blood serum alcohol concentration test result can predictably be anywherefrom 12% to 20% higher than a whole blood alcohol concentration test result (Menssen, 263Ill. App. 3d at 953), blood serum concentration test results are converted by dividing by acorresponding factor between 1.12 to 1.20. See Green, 294 Ill. App. 3d at 146 n.2 (1.16 isthe average of a range).

The State argues that Green is distinguishable from the case at bar because it involvedthe application of the presumptions set forth in section 11-501.2(b) of the Code (625 ILCS5/11-501.2(b) (West 2000)), whereas the case at bar involves a violation of section 11-501(a)(1), and that the holding of Green that the term "blood" as used in the Code meanswhole blood applies only to prosecutions involving the presumptions provided in section 11-501.2(b) and not to prosecutions involving section 11-501(a)(1). In Green, the court heldthat a jury could not employ any of the presumptions provided in section 11-501.2(b) of theCode (for example, that a person with a blood alcohol concentration of 0.08 or more is underthe influence of alcohol) based on a person's blood serum alcohol concentration. Green, 294Ill. App. 3d at 147. Such a presumption could only be employed on the basis of a person'swhole blood alcohol concentration. Allowing a jury to employ such a presumption on thebasis of a defendant's unconverted blood serum alcohol concentration level is error. Green,294 Ill. App. 3d at 147.

We do not believe that the term "blood" means one thing for the purpose of section11-501.2(b) of the Code and something different for the purpose of section 11-501(a)(1) ofthe 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 bothsections 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 thelegislature intended otherwise. McMahan v. Industrial Comm'n, 183 Ill. 2d 499, 513 (1998). Nothing in the Code indicates that the legislature intended the word "blood" to have adifferent meaning in these two section. Thus, section 11-501(a)(1) of the Code requires theState to prove that the defendant's whole blood alcohol concentration was 0.08 or more. Itcan do this only by presenting evidence of an actual whole blood alcohol concentration testresult or from blood serum alcohol concentration test results converted into whole bloodequivalents. Green, 294 Ill. App. 3d at 147. In the instant case, the State failed to presenteither type of evidence. Instead, the State presented only evidence of defendant's bloodserum alcohol concentration test result.

We agree with defendant that the State failed to prove beyond a reasonable doubt thatdefendant's whole blood alcohol concentration was 0.08 or more. The jury was presentedwith evidence of defendant's blood serum alcohol concentration, but it was presented withno evidence of the conversion factor. It is not the defendant's burden to present thisevidence, for the State bears the burden of proving every essential element of the offensebeyond a reasonable doubt. See People v. Rose, 77 Ill. App. 3d 330, 335 (1979). The Statecould have proved the whole blood alcohol concentration through expert testimonyregarding 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