dissenting:
I concur in the majority opinion in all aspects, save one. I do not agree that the State established that it had exercised due diligence to accomplish the testing of material evidence within the speedy-trial period, and therefore I must respectfully dissent.
In People v. Battles, this court held that when the State files a motion to continue pursuant to section 103 — 5(c) of the Code (725 ILCS 5/103 — 5(c) (West 2000)), it has the burden to show that law enforcement authorities “have made a prudent and assiduous effort” to complete the testing of evidence before the expiration of the 120-day speedy-trial period. People v. Battles, 311 Ill. App. 3d 991, 997, 724 N.E.2d 997, 1002 (2000). After Battles, prosecutors and law enforcement personnel were ón notice that the “rapid retrieval of testing materials and delivery of those materials to a crime lab,” standing alone, would be considered inadequate to establish due diligence. Battles, 311 Ill. App. 3d at 1000, 724 N.E.2d at 1004. The prosecution team was also warned that it would be required to provide something more than the mere assertion of a backlog to support a due diligence finding. Battles, 311 Ill. App. 3d at 1001, 724 N.E.2d at 1004-05.
In its oral and written arguments to the trial court in this case, the State sought a continuance of not more than 60 days due to the unavailability of material evidence. The continuance was not sought to obtain DNA analyses. In its motion, the State asserted that certain pieces of evidence had not been tested because one of the technicians at the Carbondale laboratory, Stacey Spieth, was on maternity leave and the only other technician, Dana Warren, had a substantial backlog. As of June 2000, Ms. Warren was conducting tests on evidentiary materials that had been submitted in January and February of that year.
In my view, the information offered in support of the State’s assertion of due diligence is substantively similar to that which we rejected in Battles. In this case, as in Battles, the State did not provide the trial court with any facts to explain the backlog, and more importantly, it did not identify what actions, if any, had been taken to deal with the backlog and to promote or expedite the testing of materials for this case. See Battles, 311 Ill. App. 3d at 999-1001, 724 N.E.2d at 1003-04. There is no indication that the prosecution or the law enforcement authorities impressed upon the Carbondale lab that the testing in this case should be expedited or that they otherwise acted with any sense of urgency. See Battles, 311 Ill. App. 3d at 1001, 724 N.E.2d at 1004; People v. Durham, 193 Ill. App. 3d 545, 550 N.E.2d 259 (1990). While it is likely that there will always be some testing backlog and staffing issues, a detained criminal defendant who has demanded a speedy trial should not be required to bear the brunt of those conditions in the absence of some evidence that the State, prior to requesting a continuance, had made reasonable efforts to secure the testing and to obtain the results within the speedy-trial period.
In this case, the majority finds that the State’s delay in obtaining the test results was excusable because “one of the technicians was on maternity leave and the only other technician at the Carbondale lab was also pregnant at the time and could not work with certain chemicals because of significant risks to her unborn baby.” 368 Ill. App. 3d at 786. The majority goes on to comment, “While an accused’s right to a speedy trial should never be taken lightly, it would be unreasonable for the trial court to demand that a laboratory technician decide between the health of her unborn child and the need for immediate processing of certain laboratory results.” 368 Ill. App. 3d at 786. I am both perplexed and troubled by these findings. I have scrutinized the State’s motion and its arguments before the trial court, and I find no assertion, nor any evidence, that the delay in obtaining the test results in this case occurred because the required testing posed any health risk to Dana Warren or her unborn baby.
Paragraph 9 of the State’s motion states as follows:
“9. Dana Warren told Gary Duncan she has a substantial backlog of work and just now is able to work cases from January and February of this year. She is the sole person in her section, her colleague, Stacey Spieth[,] is on maternity leave, and Ms. Warren herself is pregnant and cannot work with certain chemicals because of their known risk to pregnant women. For the latter reason, no DNA work is being done in her section at the Carbondale Laboratory. Any DNA analyses are transferred to other laboratories.” (Emphasis added.)
The factual assertions set forth in paragraph 9 demonstrate that the Carbondale laboratory had taken steps to protect the health of Ms. Warren and her unborn baby by suspending any DNA testing in her lab and transferring all DNA analyses to other labs. There is no assertion that Ms. Warren was unable to safely perform the testing that was required in this case. There is no assertion that any aspect of that testing posed health risks to pregnant women. In this case, the trial court was not faced with a Hobson’s choice between preserving the defendant’s right to a speedy trial and protecting the health of the laboratory worker and her unborn baby. Therefore, the majority’s suggestion regarding how it may judge a trial court’s action under such fictional circumstances seems to be an ill-advised prejudgment of an issue that is not before us.
Based on the record, I conclude that the State failed to meet its burden to show due diligence and thereby violated the defendant’s statutory right to a speedy trial. Because the defendant received ineffective assistance of counsel and because the State’s speedy-trial violation cannot be undone, I believe that a reversal of the defendant’s conviction is mandated. For the reasons stated herein, I respectfully dissent.