Appeal from the Circuit Court of Moultrie County; the Hon.
Worthy B. Kranz, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On August 24, 1983, after a trial by jury in the circuit court of Moultrie County, defendant, Douglas B. Graven, was found guilty of the offenses of (1) driving while the alcohol concentration in his breath was .10 or more in violation of section 11-501(a)(1) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501(a)(1)), and (2) unlawfully transporting alcoholic liquor in violation of section 11-502 of the Code (Ill. Rev. Stat. 1981, ch. 95 1/2; par. 11-502). Subsequently, the court sentenced him to a term of six months' probation and a fine of $250, and a fine of $50 for the respective offenses. While finding defendant guilty of the foregoing offenses, the jury also found him not guilty of driving while under the influence of alcohol as prohibited by section 11-501(a)(2) of the Code. Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501(a)(2).
Defendant contends on appeal that (1) section 11-501(a)(1) concerning the alcohol concentration in a driver's breath is unconstitutionally vague; (2) the State failed to prove an essential element of the foregoing offense; (3) the court made improper statements and improperly questioned the jury; (4) the jury's deliberations were tainted by confusion as to the proper manner in which to apply the law; and (5) the information charging defendant with unlawful transportation of liquor in violation of section 11-502 of the Code was insufficient as a matter of law. We affirm as to both convictions.
Section 11-501(a)(1) provides:
"(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration in such person's blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11-501.2." (Emphasis added.) (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501(a)(1).)
Defendant maintains that this section is unconstitutionally vague because the term "breath units" is critical to the definition of the offense and that term is not defined either in section 11-501.2 or anywhere else in the Code. However, section 11-501.2(a)(5) does state:
"Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2(a)(5).
Defendant points out that (1) a statute which forbids the doing of an act in terms so vague that men of common intelligence must guess at its meaning is impermissibly vague and violates due process of law (People ex rel. Armstrong v. Huggins (1950), 407 Ill. 157, 94 N.E.2d 863), and (2) statutes imposing criminal liability without regard to fault must satisfy a stricter standard of certainty than statutes incorporating a requirement of scienter (Colautti v. Franklin (1979), 439 U.S. 379, 58 L.Ed.2d 596, 99 S.Ct. 675). In People v. Ziltz (1983), 98 Ill.2d 38, 455 N.E.2d 70, the supreme court upheld the constitutionality of section 11-501.2(a)(1) against an attack which did not include the question of the vagueness of the phrase "breath units." The court not only stated that the section imposed "strict liability," but also stated that "[s]section 11-501(a)(1) incorporates the definition of blood and breath units found in section 11-501.2(a) of the same act." 98 Ill.2d 38, 42, 455 N.E.2d 70, 72.
• 1 We deem the only reasonable conclusion that can be drawn when sections 11-501(a)(1) and 11-501.2(a)(5) are considered together is that the term "breath units" means the number of grams of alcohol per 210 liters of breath. A person of common intelligence is under no jeopardy of being required to guess as to the meaning of this term. The statutory language meets a strict standard of certainty and does not deprive an accused of due process of law.
• 2 Defendant's second contention is closely related to the first. He asserts that the State failed to introduce any evidence as to what constitutes a "breath unit." Our holding as to the first issue controls our holding here. There was no need to prove what constitutes a "breath unit" as that has been determined by the legislature to be the number of grams of alcohol per 210 liters of breath (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2(a)(5)). Furthermore, the State produced evidence that approximately one-half hour after defendant was arrested for the charges in question an officer had defendant blow into an intoxilyzer unit for 10 seconds and obtained a reading showing an alcohol concentration of .14. Further evidence showed the unit to be in good working order. Defendant seems to argue that it would be necessary for the State, in order to prove the necessary elements of the case, to show the amount of breath defendant blew into the unit. Such a showing was not necessary. The statutory language provides a formula which measures the grams of alcohol contained in one's breath, and the proper measurement may be obtained without having 210 liters of breath blown into the unit.
• 3 The remarks of the court to the jury, about which defendant complains, were made at 12:06 a.m. on August 24, 1983. At that time, the jury had been deliberating since 7:30 p.m. on the previous day. The jury was returned into court whereupon the following colloquy occurred:
"THE COURT: I have a few questions I would like to put to you [the jury foreman] before I give you a supplemental instruction. I certainly don't mean to be coercive about anything. I don't want to know exactly how you voted, that is whether it was for [or] against acquittal or conviction. I would like to know the last count, whether it ...