delivered the opinion of the court:
Fоllowing a bench trial, the defendant, William D. Sprind, Jr., was found guilty of four counts of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, in violation of section 11 — 501(d) of the Illinois Vehicle Code (625 ILCS 5/11 — 501(d) (West 2008)), and one count of reckless homicide, in violation of section 9 — 3(a) of the Criminal Code of 1961 (720 ILCS 5/9 — 3(a) (West 2008)). The circuit court of Franklin County sentenced the defendant to a 14-year term of imprisonment. On appeal the defendant raises the following issues: (1) whether the defendant received ineffective assistance at the trial and (2) whether the amendment of sections 1286.320(c) and 1286.330(b) of Title 20 of the Illinois Administrative Code (Administrative Code) (20 Ill. Adm. Code § 1286.320(c), amended at 31 Ill. Reg. 15107, 15111, eff. October 29, 2007; 20 Ill. Adm. Code §1286.330(b), amended at 31 Ill. Reg. 7305, 7321, eff. May 1, 2007) constitute ex post facto laws in violation of the United States and Illinois Constitutions. For the following reasons, we affirm.
On January 23, 2007, the defendant was driving his truck northbound on Illinois Route 37 at a high rate of speed, passing onto the shoulder and into the oncoming southbound traffic lane. The defendant attempted to pass several vehicles and ran directly into the vehicle of the victims, Troy and Myrtle Hоlt. As a result of the collision, Mrs. Holt died. Mr. Holt was unconscious for three weeks, on a ventilator for six weeks, hospitalized for months, and then placed in a nursing home. The defendant was also injured in the collision. At the hospital, a nurse, in the presence of Illinois State Trooper Robert Reynolds, obtained a urine specimen from the defendant. Another nurse, also in Trooper Reynolds’ presence, swabbed the defendant’s arm and drew blood. The blood and urine tests revealed that the defendant had levels of cocaine high enough to be fatal. He also had cannаbis and numerous prescription medications in his system.
On October 5, 2007, defense counsel filed a motion in limine to prevent the results of the urine sample from being introduced into evidence. Defense counsel argued that at the time of the offense and when the urine sample was taken, section 1286.330(b) of Title 20 of the Administrative Code (20 Ill. Adm. Code §1286.330(b), amended at 28 Ill. Reg. 10017, 10040, eff. June 30, 2004) set forth procedures that provided that the urine sample may be collected only by the arresting officer, another law enforcement officer, or an agency employee. Defense counsel noted that a nurse, and not an authorized person, took the urine sample. Therefore, defense counsel argued that the police failed to comply with the Administrative Code provision in effect at the time the urine sample was taken. Defense counsel noted that effective May 1, 2007, section 1286.330 had been amended to add hospital nurses to the list of those who are authorized to take urine samples.
On November 15, 2007, defense counsel filed a motion to suppress the results of the blood test. Defense counsel noted that at the time of the collision, section
A hearing was held on the motion to suppress and the motion in limine on May 16, 2008, and the trial court entered a written order on June 12, 2008, denying the motion to suppress and the motion in limine. As to the urine sample, the court noted that the regulations required the police officer to be able to authenticate the sample. Because Trooper Reynolds was present when the nurse drew the sample, he was able to authenticate the sample pursuant to thе regulations. Moreover, the trial court held the amendment of section 1286.330(b) to be procedural rather than substantive and concluded that the regulations could be applied retroactively. As to the blood sample, the court noted that the defendant had not argued that the sample was tainted or that the results were invalid. The court then noted that the regulation had recently been found invalid and noted that the results could not be inadmissible for a failure to comply with an invalid regulation. Furthermore, the trial court held that the amendment of section 1286.320(c) was procedural rather than substantive and found that the current regulation could be applied retroactively.
Thereafter, the defendant suffered a stroke on September 22, 2008. As a result, defense counsel filed a motion for a fitness examination on September 30, 2008. A week later on October 6, 2008, the defendant had recovered enough to be present in court at a pretrial conference. On November 3, 2008, defense counsel withdrew his motion for a fitness examination. Defense counsel noted that the motion had been based solely on the stroke. He also noted that the defendant was going to have a neurological examination: “[It will] basically tell us most of what we need to know about whether or not I am going to re[ ]file a motion for fitness.” Defense counsel stated further, “When I have the results of that, then we will contemplate either filing or not filing a future motion.” The trial court noted that up to that point the defendant had not raised a bona fide doubt regarding his fitness to stand trial.
On January 16, 2009, the defendant waived his right to a jury trial. The trial court noted that defense counsel had previously raised the issue of the defendant’s fitness to stand trial but had withdrawn it. Defense counsel stated, “[A]t this present time we are not raising that issue, and we don’t anticipate it, and[ — ]assuming there is [sic] no new medical developments.” The trial court noted, “[F]rom my observation of Mr. Sprind, he also appears to be fully aware of what is occurring today and appears to be fit to stand trial.”
A stipulated bench trial was held on January 29, 2009. Evidence presented at the trial included seven drivers who had witnessed the defendant driving at a high rate of speed, erratically all over the road, and attempting to pass numerous vehicles before striking the victims’ vehicle head-on.
Kim Bauser would have testified that she was an EMT and a phlebotomist employed by Good Samaritan Hospital in Mount Vernon, Illinois. She worked on January 23, 2007, and assisted Trooper Reynolds to secure blood samples from the defendant. She collected two vials of blood from the defendant, using vials contained in the Illinois State Police DUI kit. She would have further testified that the blood drawn from the defendant was drawn using proper medical technique, that the blood was drawn in the presence of Trooper Reynolds, and that the vials were handed to Trooper Reynolds when they were filled.
Kristina Lorenzini would have testified that she was a registered nurse employed by Good Samaritan Hospital in Mount Vernon, Illinois. She worked on January 23, 2007, and she was the attending nurse to the defendant while he was in the emergency room. She assisted Trooper Reynolds in collecting a urine sample from the defendant. The urine sample was collected in a new, plastic urinal, in the presence of Trooper Reynolds, and was immediately handed to Trooper Reynolds. She would have also testified that while attending to the defendant, she discovered a Vicodin pill lying next to the defendant’s right side. She gave this pill to Trooper Reynolds.
Illinois State Police Trooper Reynolds would have testified that he was dispatched to a two-car accident on Illinois Route 37, north of West Frankfort, on January 23, 2007. While on the scene, he spoke to witnesses and collected Hxk pills from EMT Duke Dixon. He would also have testified that he had Kim Bauser and Kristina Lorenzini assist him in collecting the blood and urine samples from the defendant. He would have testified that these samples were properly sealed, labeled, and secured in the DUI kit. He would have also testified that Kristina Lorenzini gave him one white pill and that he located three more of those pills in the right front рocket of the defendant’s pants.
Illinois State Police Special Agent Farrin Melton would have testified that he had interviewed the defendant in the hospital shortly after the crash. The defendant admitted to taking one Vicodin pill earlier that morning. The defendant claimed that he had not taken any other legal or illegal drugs or alcohol. He would further testify that the defendant had told him that the victims’ vehicle swerved into his lane, causing the collision.
Dr. Kok would have testified that she is a forensic scientist working in the Illinois State Police crime lab, toxicology section. She had performed the analysis of the blood and urine samples. At this point, defense counsel renewed his objection to the admittance into evidence of the blood and urine samples. The trial court overruled the objection in accordance with the previous rulings on the motion to suppress and the motion in limine. Dr. Kok would have testified that the tests of the defendant’s urine revealed cocaine, THC, lidocaine, diazepam, nordiazepam, temazepam, oxazepam, morphine, oxycodone, methylphenidate, and cyclobenzaprine. Tests of the dеfendant’s blood revealed cocaine,
Expert pharmacologist Dr. William Rolling would have testified that the diazepam, nordiazepam, oxazepam, temazepam, morphine, oxycodone, and cyclobenzaprine all depress the central nervous system, which would impair one’s ability to drive a vehicle. Cocaine, cocaine metabolites, lidocaine, and methylphenidate were all central nervous system stimulants, which could also impair one’s ability to operate a motor vehicle. Dr. Rolling would have testified that the blood test was сonsistent with such a large dose of cocaine that people have died from ingesting that amount. The oxycodone level was 4V2 times the recommended level, and the diazepam level was 2 to 3 times higher than the level normally used by patients. Dr. Rolling would have opined that these levels would impair judgment and driving ability, cause blurred vision, affect coordination, and cause lightheadedness, paranoia, and a lack of judgment. He would have finally concluded that the defendant was impaired while operating his vehicle at the time of the fatal collision.
At the cоnclusion of the bench trial, the trial court found the defendant guilty on all the counts. The trial court found the defendant’s medical condition to be the only factor in mitigation but noted that the condition was “self-inflicted.” On March 16, 2009, the defendant was sentenced to a 14-year term of imprisonment. On April 15, 2009, the defendant filed a motion for a new trial or in the alternative for a new sentencing hearing, raising the question of the propriety of the admission of the urine and blood samples into evidence. The trial court denied the defendant’s motion for a new trial or a new sentencing hearing on June 15, 2009. The defendant filed a timely notice of appeal on June 29, 2009.
On appeal, the defendant first argues that he was denied the effective assistance of counsel because his counsel failed to obtain a fitness hearing before the trial and his counsel agreed to stipulate to the testimony that the State would present at the trial. The standard of review for assessing ineffective-assistance-of-counsel claims is set out in the two-pronged test enunciated in Strickland v. Washington,
We first address the defendant’s argument that he received ineffective assistance of counsel because counsel failed to seek a fitness hearing prior to the trial. For a defendant to establish that the failure to request a fitness hearing prejudiced him within the meaning of Strickland, the defendant must show that facts existed at the trial that would have raised a bona fide doubt of the defendant’s ability “ ‘to understand the nature and purpose of the proceedings
The defendant claims that he was “heavily medicated for depression and anxiety” and was “on a cocktail of anti[ ¡¡deprеssants, including Lexapro, Ativanü,] and Romazicon.” The defendant further claims that these drugs often make an individual lethargic and slow in comprehension. He claims that he was particularly disoriented on a particular day, approximately three months before the trial, and that he was “so disoriented and combative, he had to be restrained and administered Haldol, a powerful anti[ ¡¡psychotic drug.” The defendant also claims that hospital notes reflect that he was having difficultly with memory and recollection and might want a psychiatric evaluation.
In response, the State notes that the defendant’s brief does not contain a single citation to the record in support of his claims, in violation of Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)), which mandates that the parties to an appeal shall make their argument “with citation of the authorities and the pages of the record relied on.” The failure to provide proper citations to the record is a violation of this rule, the consequence of which is the forfeiture of the argument lacking those citations. Engle v. Foley & Lardner, LLP,
In any event, the record does not establish that the defendant was “heavily medicated” for depression or that he suffered from anxiety and that the medications caused lethargy or slow comprehension. What the record does reveal is that the defendant suffered a mild stroke on September 22, 2008. As a result, on September 30, 2008, defense counsel filed a motion for a fitness examination. A week later on October 6, 2008, the defendant had recovered enough to be present in court at a pretrial conference. A month later, on November 3, 2008, defense counsel withdrew his motion for a fitness examination. Defense counsel noted that the motion hаd been based solely on the stroke. The trial court noted that up to that point the defendant had not raised a bona fide doubt regarding the defendant’s fitness to stand trial. On January 16, 2009, during the hearing at which the defendant waived his right to a jury trial, the trial court noted that defense counsel had previously raised the issue of the defendant’s fitness to stand trial but had withdrawn it. Defense counsel stated, “[A]t this present time we are not raising that issue, and we don’t anticipate it, and[ — ]assuming there is [sic] no new medical developments.” The trial court noted, “[F]rom my observation of Mr. Sprind, he also appears tо be fully aware of what is occurring today and appears to be fit to stand trial.” Accordingly, the trial court found that the defendant had not established a bona fide doubt regarding his fitness to stand trial, and we cannot conclude that defense counsel was ineffective for failing to request a fitness examination.
In any event, the record reveals that, contrary to the defendant’s claims, defense counsel did not concede his client’s guilt. Defense counsel merely stipulated to the existence of the State’s evidence. Defense counsel specifically stated at the beginning of the bench trial: “[W]e are not stipulating that the evidence is sufficient to provе the defendant’s guilt, and we’re not admitting guilt. We are simply waiving the obligation of the State to present evidence through testimonial means.” Accordingly, the trial court was still required to find that the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. See People v. Sutton,
We turn now to the defendant’s next argument on appeal. The defendant argues that the trial court improperly denied his motion in limine and his motion to suppress because the amendments to section 1286.320 and section 1286.330 of Title 20 of the Administrative Code, as applied retroactively, constitute ex post facto laws in violation of the United States and Illinois Constitutions. The defendant also argues that compliance with the regulations established pursuant to section 11 — 501.2 of the Illinois Vehicle Code (625 ILCS 5/11 — 501.2 (West 2008)) is a prerequisite to the admissibility of the test results in a DUI prosecution. He contends that because the police failed to comply with the regulations, the results of the blood and urine tests were inadmissible.
In response, the State argues that the amendments in the Administrative Code were procedural, the prior versions of the Administrative Code were invalid, and there was substantial compliance with the regulations. The State relies on People v. Morris,
The court then concluded, “The amended rule in this case did not criminalize an act that was innocent when done or increase the punishment upon conviction.” Morris,
In the instant case, the defendant challenged precisely the same section of the Administrative Code on precisely the same basis. Moreover, the logic of the decision in Morris is also applicable to the
The State further argues that the preamended section 1286.320 (20 Ill. Adm. Code §1286.320, amended at 28 Ill. Reg. 10039, eff. June 30, 2004), dealing with blood draws, was invalid at the time of the offense. In People v. Bair,
“The legislature delegated authority to the Department of State Police to promulgate ‘standards’ for blood and other tests, for the purpose of ensuring the validity of the test results. *** The law states that ‘to be considered valid’ the tests must have been ‘performed according to [the Department’s] standards.’ 625 ILCS 5/11 — 501.2(a)(1) (West 2004). Thus, the intended purpose of the standards was to ensure the tests’ validity. *** When the Department of State Police required disinfectant, not for the test’s validity, but solely ‘for the subject’s wеll-being,’ the Department exceeded the authority delegated by the statute.” Bair,379 Ill. App. 3d at 59 .
Accordingly, the court found that the admission of the test results was not error, despite noncompliance with an administrative regulation, because the regulation was not valid. Bair,
Applying the logic in Bair to the instant case, we agree with the State that section 1286.320(c), regarding disinfecting skin prior to a blood draw, was invalid at the time that the defendant’s blood was drawn. The State also asserts that the logic in Bair can be extended to the urine sample. The urine sample cannot have been morе reliable if it was taken by a police officer rather than a nurse whose medical training far exceeded that of the police officer, especially if the officer was present to observe and authenticate the sample. The requirement of having a police officer instead of medical personnel obtain the urine cannot be to ensure the validity of the tests. Since this regulation also exceeds the authority delegated in the statute, the failure to comply with the Administrative Code cannot have been error.
In any event, the State asserts that there was substantial compliance with the Administrative Code. See People v. Bishop,
For the foregoing reasons, we hereby affirm the judgment entered by the circuit court of Franklin County.
Affirmed.
DONOVAN and SPOMER, JJ., concur.