Opinion filed December 18, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-13-0255 v. ) Circuit No. 11-CM-3893 ) BRUNO PRESA, ) ) Honorable Carmen Goodman, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and Wright concurred in the judgment and opinion.

OPINION

¶1 Defendant, Bruno Presa, was charged with one count of possession of syringes under

section 1 of the Hypodermic Syringes and Needles Act (Act) (720 ILCS 635/1 (West 2010)),

when he was found in possession of approximately 500 used and uncapped hypodermic syringes

in a cardboard box in his bedroom. Defendant was a card-holding member of the Chicago

Recovery Alliance (CRA), a "needle exchange" program that aims to slow the spread of human

immunodeficiency virus (HIV) among intravenous drug users. At a bench trial, defendant

argued that he met the statutory exemption for a person engaged in "scientific research," through his participation in CRA's program. See 720 ILCS 635/1(a) (West 2010). The court found

defendant guilty. Defendant appeals, arguing the evidence was insufficient to prove him guilty

beyond a reasonable doubt. The State concedes, and we reverse.

¶2 FACTS

¶3 Defendant was charged by information with "Unlawful Possession of Hypodermic

Syringe or Needle" under section 1 of the Act (720 ILCS 635/1 (West 2010)). The charging

information alleged:

"[D]efendant, knowingly and unlawfully had in his possession an

instrument, namely a hypodermic syringe and needle, or any other

instrument so adapted for the use of controlled substances by

subcutaneous injection and the defendant was not in possession of

such aforementioned instrument by reason of or during the course of

his official duties, and the defendant was not in possession of such

aforementioned instrument acting under the direction of a medical

doctor, dentist or hospital supervisor ***."

Section 1 reads:

"(a) Except as provided in subsection (b), no person, not being ***

a person engaged in chemical, clinical, pharmaceutical or other

scientific research, shall have in his possession a hypodermic syringe,

hypodermic needle, or any instrument adapted for the use of controlled

substances or cannabis by subcutaneous injection.

(b) A person who is at least 18 years of age may purchase from a

pharmacy and have in his or her possession up to 20 hypodermic

2 syringes or needles." (Emphasis added.) 720 ILCS 635/1 (West

2010).

Section (b), along with the part of section (a) referencing it, was added by the legislature in 2003.

Pub. Act 93-392 (eff. July 25, 2003). The amendment was characterized as a public health

initiative, which, by "decriminaliz[ing] the possession of up to twenty sterile hypodermic needles

and syringes," aimed to reduce the transmission of HIV and other diseases by intravenous drug

users. 93d Ill. Gen. Assem., Senate Proceedings, March 24, 2003, at 78 (statements of Senator

Trotter).

¶4 Defendant bonded out of jail on a $100 personal recognizance bail bond. His bail bond

contract listed six conditions of bond, none of which mentioned drug screenings. Defendant

entered a plea of not guilty at his arraignment, explaining that he was a member of "the needle

exchange program."

¶5 At the first pretrial hearing, defendant appeared pro se. The court stated that "as a

condition of your bond, you were to be drug tested today." Defendant said he was unaware of

that requirement and had not yet been drug tested. Defendant requested that the court dismiss

the charge because "I have a card for legal possession of what I got arrested for." The court

stated, "That's probably a defense," but explained that defendant needed counsel and, first of all,

needed to be drug tested. The court appointed a public defender and ordered defendant

downstairs for a drug screening. The court explained, "I test everybody who has these type of

cases."

¶6 On March 14, 2013, the case proceeded to a bench trial. Pretrial, the State stipulated to

two defense exhibits. The first was a special order from the Chicago police department (CPD)

regarding CRA. The special order stated that CRA personnel and participants in the needle

3 exchange program met the statutory exemption for scientific research under section 1 of the Act.

The order directed CPD officers not to arrest CRA program participants for possession of

hypodermic syringes. The second exhibit was a special order from the Joliet police department,

directing its officers not to arrest participants of a similar needle exchange program for

possession of syringes.

¶7 The defense called Dan Bigg, director of CRA. Bigg explained that CRA is a 21-year-

old nonprofit organization that aims to study and reduce the spread of HIV and hepatitis B and C.

When participants interact with CRA to receive services, CRA asks them questions that are

recorded and used for research purposes. Its members are given coded identification cards;

cardholder names are not collected or stored by CRA. Bigg testified that defendant had a valid

CRA card and was considered a current participant in CRA's research program.

¶8 Gregg Scott testified that he is an associate professor of sociology at DePaul University

who studies HIV and drug use. The data collected through CRA's questioning of participants is

stored and analyzed at DePaul's science research center. On cross-examination, Scott stated that

participants may take as many clean needles as they want, and there is no requirement that they

must exchange dirty needles to receive clean ones. According to Scott, "putting limitations on

the number of syringes actually contributes to the flourishing of HIV."

¶9 The court ultimately determined that defendant's CRA participant card did not in itself

establish that defendant was a person engaged in scientific research under the Act. The court

found defendant guilty.

¶ 10 The court asked whether the parties were ready to proceed to sentencing. Defense

counsel requested a continuance to gather and prepare mitigating evidence. The court denied

that request: "Okay. Well, this is a 2011 case. I will give you five minutes." The court

4 sentenced defendant to 90 days in jail, 24 months' conditional discharge, and fines and costs of

$200. Defendant appeals.

¶ 11 ANALYSIS

¶ 12 On appeal, defendant, again, argues that because of his participation in CRA's program,

he met the statutory exemption for a person engaged in scientific research. The State concedes

that defendant's conviction must be reversed.

¶ 13 Under the statute, anyone 18 years of age or older may possess up to 20 needles. To

legally possess more than 20 needles, the person or entity must meet one of the exemptions listed

in subsection (a). In the present case, defendant claimed he met the exemption for "a person

engaged in *** scientific research." 720 ILCS 635/1(a) (West 2010). The State conceded—and

the evidence overwhelmingly established—that CRA was an entity engaged in scientific

research. The legislature decided that it was sound public policy to allow the possession of up to

20 syringes for anyone and more than 20 syringes for those engaged in scientific research. It is

not the role of the courts to question that policy decision.

¶ 14 Clinical scientific research, by definition, requires not only scientific researchers, but also

participants or patients. Dan Bigg, the director of CRA, testified that defendant possessed a valid

CRA card; Bigg considered defendant a current participant in CRA's research program. On

appeal, the State concedes that defendant was, for purposes of the Act, engaged in scientific

research. No reasonable trier of fact could have found defendant guilty based upon the evidence

presented at trial. The State confesses error. We reverse defendant's conviction.

¶ 15 CONCLUSION

¶ 16 For the foregoing reasons, the judgment of the circuit court of Will County is reversed.

¶ 17 Reversed.

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