dissenting:
I respectfully dissent. Defendant was convicted of reckless homicide under the Criminal Code of 1961 (111. Rev. Stat. 1983, ch. 38, par. 9 — 3(a)) and driving under the influence of alcohol under the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501(a)(2)). At issue is whether the trial court properly gave the jury a modified version of Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 23.06).
The Illinois Vehicle Code provides that in the trial of any criminal action “arising out of acts alleged to have been committed by any person while driving *** under the influence of alcohol,” the alcohol concentration of the person’s breath gives rise to certain presumptions. (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501.2(b).) In the present case, the reckless homicide charge arose from the acts defendant allegedly committed while driving under the influence of alcohol and, therefore, it was proper for the trial court to instruct the jury as to the statutory presumption in the Illinois Vehicle Code.
The applicable presumption states, “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.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.2(b)(3).) IPI Criminal 2d No. 23.06 states:
“If you find 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 intoxicating liquor.
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of intoxicating liquor.” (Emphasis added.)
An IPI Criminal instruction shall be used unless the court determines the instruction does not accurately state the law. (107 Ill. 2d R. 451(a).) The decision to use a non-pattern jury instruction is within the trial court’s discretion. People v. Santiago (1987), 161 Ill. App. 3d 634, 515 N.E.2d 228.
The instruction quoted above, IPI Criminal 2d No. 23.06, was criticized in People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931, because the first paragraph contained mandatory language “you shall presume,” which was inconsistent with the second paragraph’s permissive language “this presumption is not binding on you.”
In the present case, in an apparent attempt to avoid confusing the jury, the trial court modified IPI Criminal 2d No. 23.06 as follows:
“If you find that the amount of alcohol in the defendant’s blood as shown by a chemical analysis of her breath was .10 percent or more by weight of alcohol, you may presume that the defendant was under the influence of intoxicating liquor.
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of intoxicating liquor, at the time defendant drove a vehicle.” (Emphasis added.)
The court replaced the word “shall” from the pattern instruction with the word “may,” creating a permissive presumption. The modified instruction corrected the confusion between the first and second paragraphs in the pattern instruction. Although defendant contends the instruction should have included “beyond a reasonable doubt” language, such language is unnecessary in a permissive instruction when other evidence supports that element of the offense. (See People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) In the present case, there was an abundance of evidence, other than the chemical analysis, that defendant was under the influence of alcohol. Three witnesses to the accident, who approached defendant immediately afterward, testified she was “drunk” or “very intoxicated.” A police officer on the scene testified that there was a strong odor of alcohol on defendant’s breath and she was “extremely intoxicated.” At the police station, defendant was unable to perform two sobriety tests satisfactorily. Because there was sufficient evidence to support a permissive presumption instruction, it was not necessary to include “beyond a reasonable doubt” language in the instruction.
Additionally, a case involving a similar instruction was recently affirmed in People v. Elliott (1986), 143 Ill. App. 3d 72, 492 N.E.2d 946. In that case the jury was instructed, in relevant part:
“If you find 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.” (Emphasis added.) (People v. Elliott (1986), 143 Ill. App. 3d 72, 76, 492 N.E.2d 946, 949.)
On appeal, defendant argued that the phrase “beyond a reasonable doubt” should have been inserted after the word “find” in the first paragraph. The appellate court found that use of the words “may infer” created a permissive presumption which did not require the use of beyond a reasonable doubt language. Although in the present case the instruction used the word “presume” rather than “infer,” the opinion in Elliott is sufficiently analogous to lend support here.
In the present case, the trial court in its discretion tendered a modified instruction to clear up confusion in the pattern instruction. The use of the modified instruction, which contained a permissive presumption, was harmless in light of the overwhelming evidence that defendant was driving under the influence of alcohol. Accordingly, defendant’s convictions for reckless homicide and driving under the influence of alcohol should be affirmed.