Appeal from the Circuit Court of Champaign County; the Hon.
John R. DeLaMar, Judge, presiding.
PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
On March 25, 1985, the defendant, Phillip Elliott, was arrested and charged with the offense of driving under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)). On June 17, 1985, after a trial by jury in the circuit court of Champaign County, he was found guilty of the offense of driving while under the influence of alcohol. Post-trial motions were filed and heard on July 24, 1985, and denied. Defendant was sentenced to one year's conditional discharge, fined in the amount of $500 and costs, and ordered to serve a period of incarceration. The defendant appeals. The issues presented for review are (1) whether the jury was correctly instructed on the law applicable to the evidence regarding the defendant's blood-alcohol level based on the results of a chemical analysis of his breath and (2) whether the defendant was proved guilty beyond a reasonable doubt.
At 1:15 a.m., March 25, 1985, Officer Page of the Urbana police department was westbound and stopped for a red light at the intersection of Green Street and Wright Street in Urbana. When the stoplight changed from red to green, the officer observed that the Pontiac which was directly in front of him started up and then stopped when a white Cadillac, which had been in the left eastbound lane awaiting the light turned left in front of the Pontiac. The officer turned and followed the Cadillac, estimating the speed to be approximately 45 miles per hour. He observed the Cadillac change from the left lane or the right-hand land at the intersection of Springfield and Wright streets and the Cadillac turn right on Springfield. The officer activated his overhead red lights, stopped the car, approached the defendant, who was the driver, obtained his driver's license, and detected an odor of alcoholic beverage on the defendant. The officer testified that the defendant stumbled in getting out of his car and his eyes were bloodshot. Sobriety tests, including walking a straight line heel-to-toe, touching his nose, and standing on top of one leg were performed by the defendant. The officer judged that the defendant failed all of these tests and concluded that the defendant was under the influence of alcohol based on the defendant's lack of physical coordination, failure to follow instructions, bloodshot eyes, the odor of alcohol on his breath, and erratic driving. Defendant was taken to the Urbana police station and was asked to submit to a breath analysis. The defendant consented to the breath test and gave a sample which registered on the machine as a .15 blood-alcohol level. During the 20-minute waiting period the defendant had not ingested any food or drink, smoked any cigarette, belched, vomited, or done anything that would have tainted the machine's test result. In an interview at the Urbana police station, the defendant informed the officer that he had consumed four "VO's and Seven." On cross-examination, the defendant sought to impeach the officer as to the speed of the defendant's vehicle, that the road surfaces of Springfield and Green did have some imperfections together with a downhill grade from Springfield to Green Street. The imperfections, however, according to the officer, were slight. Officer Jepsen responded as a backup unit, observed the defendant perform some of the field-sobriety tests and overheard the conversation. Officer Jepsen testified he was able to smell the odor of alcohol on the defendant's breath and observe that the defendant's eyes were glassy, and that he was of the opinion that the defendant was under the influence of alcohol based upon the two field-sobriety tests he observed, the odor of alcohol on the defendant's breath, and his observation of the defendant's eyes. He also testified and described the defendant's manner of speech as slurring some of the words. Defendant's witness, Richard Perring, was with the defendant on the night in question. Witness Perring testified that he and defendant were at Bradley's, where the alcohol was consumed. They arrived at Bradley's at about 8:30 p.m. and were at that same place until 1 a.m., March 25, 1985. Perring observed nothing unusual about the defendant's driving behavior. The defendant dropped Perring off near the intersection of Sixth and Green immediately before the defendant was arrested. He did observe the defendant stop at the intersection of Green Street and Wright Street in Urbana with his left turn signal on. Perring did not see the defendant after that time but gave the opinion that the defendant was not under the influence of alcohol.
The defendant testified that he picked up two friends including Perring at about 8 p.m. and arrived at Bradley's at about 8:30 p.m. He testified that they had to wait to get into Bradley's and during that time it rained and the weather was cool. During the course of the evening he drank four drinks of VO and Seven. During the evening hours he listened to the band and did dance intermittently until 1 a.m. He testified that after he made the turn right at Green Street, he travelled north on Wright Street just in excess of 30 miles per hour moving from the left lane to the right lane over a two-block stretch then turning right on Springfield. After turning right at Springfield and Wright, the defendant observed the police officer's lights and parked in the first available space on Burrill Avenue. The defendant described the street where the field-sobriety tests were performed as being cracked with potholes and with a lot of loose gravel and further observed that the area was wet from rain that had fallen. Defendant admitted on cross-examination that the alcohol was going to affect him somewhat but stated he was in full control of himself, that he had started drinking around 9:30 p.m., that he had only had one-half to two hours sleep the night before because he had to take care of his house during a party that his roommate had. He indicated that when he made any turns, including intersection turns or lane turns, that he used his turn signals. In rebuttal, Officer Page, the arresting officer, testified that after the arrest the defendant told him he had started drinking at about 7 p.m. the night before and at the time he was stopped the defendant stated he was going home.
At the conference on jury instructions, the court gave People's instruction No. 11A over the defendant's objection, which instructed the jury on the use of the results of the analysis of defendant's breath. (Illinois Pattern Jury Instruction, Criminal, No. 23.06 (2d ed. 1981).) That instruction provided:
"If you find that at the time of the defendant's driving, the amount of alcohol in the defendant's blood as shown by a chemical analysis of his breath was .05 or less percent by weight of alcohol, you may infer that the defendant was not under the influence of alcohol;
If you find that at the time of the defendant's driving the amount of alcohol in the defendant's blood as shown by a chemical analysis of his breath was in excess of .05 but less than .10 percent by weight of alcohol, this may not give rise to any inference that the defendant was or was not under the influence of alcohol;
If you find that at the time of the defendant's driving 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 may infer that the defendant was under the influence of alcohol.
However, any such inference is not binding on you and you may take into consideration any other evidence, and reasonable inferences from it, in determining whether or not the defendant was under the influence of alcohol."
The defendant tendered instruction No. 2, identical to People's instruction No. 11A except that it added the phrase "beyond a reasonable doubt" in each of the first three paragraphs between the words "find" and "that." The trial court refused the defendant's instruction No. 2. Defendant's instruction No. 3 which was refused by the court provided:
"Inference is the process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted."
The defendant cites People v. Malik (1983), 113 Ill. App.3d 206, 446 N.E.2d 931; People v. Frazier (1984), 123 Ill. App.3d 563, 463 N.E.2d 165; and People v. Graven (1984), 124 Ill. App.3d 990, 464 N.E.2d 1132. The defendant argued, and the State and the trial court agreed, that these decisions did create confusion in the trial court's responsibility to properly instruct the jury.
In Malik, the trial court gave a modified version of IPI Criminal 2d No. 23.06, which provided in part that "`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.'" (People v. Malik (1983), 113 Ill. App.3d 206, 210, 446 N.E.2d 931, 934.) Defendant in Malik had tendered an instruction which stated "you may infer" in place of "you shall presume," based upon certain findings, that the defendant was under the influence of alcohol with a second paragraph indicating that they were not required to make the presumption, instructing the jury that they could take into consideration any other evidence in determining whether or not the defendant was under the influence of alcohol. In Frazier, the same first paragraph instruction given in Malik was given by the trial court, but Frazier also gave the second paragraph of IPI Criminal 2d No. 23.06. As in Malik, this court found error in the given instruction but concluded that the error was either solved by other instructions given or that such error was harmless beyond a reasonable doubt. People v. Frazier (1984), 123 Ill. App.3d 563, 573-74, 463 N.E.2d 165.
• 1 The instruction given in the instant case substituted the words "may infer" for "shall presume" avoiding the suggestion of a mandatory presumption. The defendant argues that the instruction still does not address the proof of the underlying fact ...