Appeal from the Circuit Court of Champaign County; the Hon.
John R. DeLaMar, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
This case concerns section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501), which provides that one who drives a motor vehicle in this State shall be guilty of a Class A misdemeanor if one drives while (1) having an "alcohol concentration" of the breath or blood of .10 or more as defined in section 11-501.2 of the Act (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2), or (2) being under the influence of alcohol. Section 11-501.2(a)5 states:
"Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath."
Defendant, Edward J. Malik, appeals (1) judgments of convictions of both the foregoing offenses entered June 10, 1982, after a jury trial in the circuit court of Champaign County, and (2) concurrent sentences of 120 days' imprisonment imposed July 15, 1982, for those convictions. He asserts: (1) the court erred in instructing the jury as to a purported presumption concerning the driving under the influence charge; (2) the evidence was insufficient to prove the driving with a .10 or greater concentration of alcohol charge; (3) the issues instruction as to the latter charge was faulty; (4) the court erred in refusing to sever the two charges for trial; and (5) the court abused its discretion in imposing such a severe sentence.
The defendant also maintains that the conviction and sentence for driving with an impermissible concentration of alcohol cannot stand if the other conviction stands. Both offenses arose from the same act. (People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838.) The State agrees that both convictions cannot stand. However, for reasons stated later we deem it appropriate to set aside the driving under the influence conviction and let the other conviction stand. Both offenses are Class A misdemeanors. As we also explain later, we conclude that neither side will be prejudiced by this result.
The evidence at trial was not in serious dispute. A police officer testified to seeing defendant driving a vehicle on a city street at 8:20 p.m. on March 3, 1982. The vehicle did not have its headlights on. As the vehicle entered a grocery store parking lot, the officer approached the vehicle. The officer testified that as the defendant alighted from the vehicle, defendant's pants were unzipped and hanging about his waist in a disheveled manner and as defendant left his car, he lost his balance. Defendant testified he slipped because of ice underfoot. When the officer asked defendant for his driver's license, defendant was unable to produce it from his billfold, although, according to the officer, defendant passed it several times in shuffling through his papers. The officer described defendant's speech as slurred and stated that defendant again lost his balance when he was placed under arrest and told to put his hands on the top of the squad car.
Defendant was taken to a police station where, upon climbing some steps, he fell into a snowbank. Subsequently, defendant agreed to submit to a breathalyzer test which was administered at 9:18 p.m. by a licensed breathalyzer operator. The results of the tests indicated that defendant had a level of .20 concentration of alcohol in his blood at the time of the test. Defendant admitted that since 4:10 p.m. that afternoon he had consumed between eight and 11 ten-ounce cans of beer and two or more mugs of beer at fairly evenly spaced intervals.
Defendant's first claim of error concerns section 11-501.2(b) of the Illinois Vehicle Code which, at all times pertinent, stated:
"Upon the trial of any * * * criminal action * * * arising out of acts alleged to have been committed by any person while driving * * * a vehicle while under the influence of alcohol, the concentration of alcohol in the person's blood or breath at the time alleged as shown by analysis of the person's * * * breath * * * shall give rise to the following presumptions;
(3) If there was at that time an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol." Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2(b).
Over objection by the defendant the court instructed the jury as follows:
"With respect to the charge of Driving Under the Influence of Alcohol, if you find beyond a reasonable doubt that the amount of alcohol in the defendant's blood as shown by a chemical analysis of his breath was .10 percent or more by weight of alcohol, you shall presume that the defendant was under the influence of alcohol."
The instruction was in the form of Illinois Pattern Jury Instruction, Criminal, No. 23.06 (2d ed. 1981). It differed from that instruction only in that it required the amount of alcohol in the blood to be found "beyond a reasonable doubt" while the pattern instruction only requires that the jury "find" the required amount.
Asserting it was a proper instruction concerning the presumption of section 11-501.2(b), defendant tendered and the court ...