dissenting:
I respectfully dissent from the majority opinion. It is unquestioned that the defendant’s conduct caused serious and extensive personal injuries and the death of an unborn child; however, in spite of the recommendation of the Lake County Department of Court Services that defendant be placed on intensive probation, the court imposed the maximum sentence of three years in the penitentiary. The trial court considered two improper factors in aggravation, i.e., its own standard of legal intoxication and defendant’s lack of automobile insurance. An analysis of the court’s remarks at the sentencing hearing clearly demonstrates that this case should be remanded to the trial court for re-sentencing.
Regarding the court’s imposition of its own standards for legal intoxication, the following portions of the record are illustrative. After the defendant’s attorney argued that defendant exhibited none of the indicia of intoxication at his arrest, the trial judge stated:
“I’ll tell you what my training is, and if I had to write the laws, you know what I would say, the danger starts at .05. .05. You know what the most danger is? I’ll give you a crash course in alcohol. .05, .06. U to 6 is dangerous. Did you ever see guys at parties where they are busy talking away or trying to hold their head or lean up against the wall, they are on their way to being smashed. *** Secondly, sir, a person that drinks already forms habits and he educates himself to overcome these things.” (Emphasis added.)
Later in the hearing, the trial judge stated that section 11— 501(dX3) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(d)(3)) was adopted because of motor vehicle accidents resulting from alcohol abuse. He then predicted that the legislature would elevate other traffic offenses from misdemeanor to felony status because of the alcohol abuse problems in our society.
The trial judge next mentioned that cigarette advertisements in which doctors recommended smoking because it would supposedly cause people to relax used to appear in billboards near highways. The trial judge then stated:
“But you don’t see those ads anymore about doctors suggesting you smoke because it will cause you to relax, because smoking will kill you. Well it is the same thing with alcohol, except we have a weak society. They try to do away with it, but because of public clamor and the black marketing of making booze up in the hills, and in the privacy of the kitchen, we returned to the use of alcohol. And quite candidly it is abused.
Now I disagree with some of the things that have been said about alcohol. The sad thing is, our society does not realize that as soon as you lift that first glass to your mouth you are opening the door to danger. And this is why I frown upon those in the alcohol beverage business who spend hundreds of thousands of dollars for advertising *** to encourage the public to consume and become intoxicated. And perhaps 50 years from now some judge will be making the same type of remark *** about those ads as I made about [the cigarette] ads because I am sure by that time the use of alcohol, hopefully, will diminish because it has affected society to such a point that it is a cancer. It is a sore which is spreading.” (Emphasis added.)
Later in the hearing, the trial judge mentioned defendant’s lack of automobile insurance and discussed the possible financial consequences to defendant of a DUI conviction. He then returned to the subject of automobile insurance, stating as follows:
“Be it the fault of the legislators, be it the fault of the courts, or be it the fault of some other agency, this State does not make such insurance mandatory. So driving a vehicle, either under the use of alcohol or without the use of alcohol, puts a potent weapon into the hands of that individual who misuses it, or because of negligence is involved in some sort of accident. And the negligence being either by yourself or through a third party. But you chose not to have any insurance whatsoever. That was a voluntary act by yourself. And by choosing not to have insurance, it means to me that you don’t care about yourself, you don’t care about the passengers that may be riding with you. You don’t care about the individual who you may hurt or whose car you may damage, or about the public in general. So you are creating the intention in your mind that you are saying I turn my thumb up on society, and in street corner talk, you say it in a little more stronger [sic] type of verbiage.” (Emphasis added.)
At this point, the assistant public defender representing defendant stated that a finding of indigency had been made by the court and that it was possible defendant did not have insurance because he could not afford it. The trial judge then made the following statement:
“Well, sir, if he cannot afford insurance, that doesn’t give him the right to drive. Let me be a little more blunt. If he cannot afford insurance, he should not be able to afford to drive. He should not be able to afford that automobile.” (Emphasis added.)
The trial judge then analogized driving under the influence of alcohol to playing with a loaded gun. He stated as follows:
“When you had that car, when you were driving around without the use of any alcohol, the gun was unloaded. But as soon as you started using alcohol, you loaded the gun. And by loading the gun, driving that car when you were under the influence of alcohol, and here it was .12 of one percent. And by taking this uninsured car, you were using that car as a potent weapon to toy around with a life either by some form of injury or by some fatality. *** As soon as you went through that stop sign you released the trigger on that gun. And the impact of that gun was the bullet landing into the Hanna vehicle, or the uninsured car that you were driving, going through and hitting the Hanna car.” (Emphasis added.)
It is clear that the trial court considered defendant’s sentence in light of improper factors. The court’s view that “the danger (related to alcohol) starts at .05” does not comport with Illinois law, which defines the .10 level as legally significant. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1).) Under the trial court’s “standard” of .05, the malfeasance of defendant, whose blood-alcohol concentration registered .12, is wrongly magnified.
Further, we note, at the time of the instant offense, automobile insurance was not mandatory. The trial judge stated that defendant’s lack of insurance meant he did not care about his passengers or the public in general and that defendant was “turning [his] thumb up on society.” The trial judge clearly considered the lack of insurance to be an aggravating factor, not merely the absence of a mitigating factor. As the lack of automobile insurance is not one of the statutory factors set forth in section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2), the court improperly considered this in deciding the sentence.
Neither of the above-discussed factors should have entered into the court’s determination of this sentence, but clearly both affected its length. Therefore, this sentence should be vacated, and this case should be remanded for resentencing.