§ 8.8 Instruction

LibraryIllinois DUI and Traffic-Related Decisions (2016 Ed.)

§ 8.8 Instruction

§ 8.8-1 Apprendi Issue Given Properly

People v. Bowman, 357 Ill. App. 3d 290, 827 N.E.2d 1062, 293 Ill. Dec. 181 (1st Dist. 2005). Defendant was charged with reckless homicide and aggravated driving under the influence of alcohol. After a jury trial, defendant was convicted of both and sentenced to 14 years and 12 years respectively. The State wished to seek an extended sentence upon defendant in the event they were successful in obtaining a conviction. This was in order to address any Apprendi issue that might occur.

The State submitted and the trial judge gave the jury the following instruction:

"The State has also alleged the additional facts that, during the commission of the offense, Alexander Esteban was under the age of twelve and that Rosario Cruz was sixty years or older.

If you find the defendant guilty of reckless homicide, aggravated reckless homicide or both, you should continue your deliberations to determine whether the State has proven beyond a reasonable doubt the fact that during the commission of the offense, Alexander Esteban was under the age of 12.

If you find the defendant guilty of aggravated driving under the influence of alcohol, you should continue your deliberations to determine whether the State has proved beyond a reasonable doubt the fact that, during the commission of the offense, Rosario Cruz was 60 years of age or older."

Defendant claimed the instruction was improper because they contained an impermissible mandatory presumption that defendant was guilty of the offenses charged. The appellate court rejected defendant's claim and affirmed the convictions and sentence. The use of the words "alleged" and "if" allowed the instruction in question to be viewed as permissive and not mandatory.

§ 8.8-2 Intoxication

§ 8.8-2(a) Given Improperly

People v. Crowe, 232 Ill. App. 3d 955, 598 N.E.2d 293, 174 Ill. Dec. 96 (4th Dist. 1992). A jury was instructed that being under the influence of alcohol at the time of the violation is prima facie evidence of a reckless act. A person shall be considered under the influence of alcohol if the alcohol concentration of blood is .10 % or more by weight of alcohol. Another instruction given to the jury was that prima facie evidence of recklessness may be rebutted.

Defendant claimed the use of these instructions confused the jury as to the burden of proof and indicate to the jury that defendant had some burden of proof to negate evidence of guilt. The appellate court agreed and concluded the phrase "prima facie evidence" should not be used even if defined. The confusion was compounded when the word "considered" was used in the second sentence. It is likely a reasonable juror could have erroneously decided a mandatory presumption was created. The cause was remanded for a new trial.

People v. Green, 294 Ill. App. 3d 139, 689 N.E.2d 385, 228 Ill. Dec. 513 (1st Dist. 1997). Following a jury trial, defendant was convicted of reckless homicide and three counts of aggravated driving under the influence of alcohol. On appeal, defendant claimed the jury was misled into believing it could presume his legal intoxication based upon certain blood serum-alcohol concentration results, but the jury should have been instructed as to the distinction between whole blood and blood serum for purposes of determining his "alcohol concentration."

At trial, a Dr. Rosenfeld testified that defendant's blood serum alcohol concentration was 0.114, which, according to her, meant he was legally intoxicated at the time of the collision. The problem with Rosenfeld's testimony was that section 11-501.2(a)(5) of the Illinois Vehicle Code defines "alcohol concentration" in terms of whole blood and whole blood only. Rosenfeld's testimony was...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT