dissenting:
I respectfully dissent. In my view, the prosecutor’s comments impermissibly shifted the burden of proof, and I would therefore reverse the trial court’s judgment and remand for a new trial.
Here, the prosecutor in his opening statement and twice in his closing statement referenced defendant’s failure to prove he was not impaired or “not guilty.” Although the prosecutor’s argument was set forth in the context of defendant’s failure to provide proof to the arresting officer rather than the jury, I believe the multiple references to the term “prove” impermissibly shifted the burden of proof and deprived defendant of a fair trial. In People v. Kane, 223 Ill. App. 3d 377, 379, 584 N.E.2d 1044, 1045 (1991), the State presented evidence of the defendant’s refusal to submit to a test designed to determine whether the defendant was under the influence of alcohol. This court found such evidence helpful to the trier of fact and noted the “jury could have inferred defendant’s actions during the observation period showed he refused the test because he knew it would have confirmed he was driving under the influence.” Kane, 223 Ill. App. 3d at 385, 584 N.E.2d at 1049.
In Garriott, 253 Ill. App. 3d at 1052, 625 N.E.2d at 784, this court further elaborated on the admissibility of a defendant’s refusal to submit to a Breathalyzer test as follows:
“Section 11 — 501.2(c) of the Code, providing that evidence of a refusal shall be admissible at trial of a DUI[,] *** represents a legislative determination that evidence of such a refusal is relevant. In effect, the legislature has determined that a driver’s refusal to submit to a [B]reathalyzer test is relevant as circumstantial evidence of his consciousness of guilt. [Citations.] The evidence of a driver’s refusal exposes him to an inference regarding his state of mind about the likely results of that test. [Citation.] The trier of fact could infer that he refused because he knew the [B]reathalyzer test would confirm he was driving under the influence. [Citation.] This evidence is probative to the issue of intoxication. [Citation.] Thus, a driver’s refusal is relevant because it implies that he believes he is intoxicated, something he is clearly in a prime position to appraise.” (Emphasis in original.)
Here, the State argues the prosecutor’s remarks, when placed in proper context, were not improper because they refer to defendant’s state of mind in making his decision to refuse to take the test. I could agree with the State if the prosecutor had omitted references to defendant’s failure to prove he was not guilty or not impaired.
Our supreme court has found that “no rule is more firmly settled than that a defendant in a criminal case is not bound to prove himself innocent, but the State must prove him guilty beyond a reasonable doubt, the defendant being presumed innocent.” People v. Magnafichi, 9 Ill. 2d 169, 174, 137 N.E.2d 256, 259 (1956); see also People v. Weinstein, 35 Ill. 2d 467, 470, 220 N.E.2d 432, 434 (1966) (burden of proving beyond a reasonable doubt all the essential elements of a crime never shifts to the accused but remains the responsibility of the prosecution); People v. Benson, 19 Ill. 2d 50, 61, 166 N.E.2d 80, 86 (1960) (“it is not for the defendant to establish his innocence, but for the People to establish his guilt”).
The majority today sets a dangerous precedent, which, in my view, departs from time-honored principles of jurisprudence. Perhaps a jury will not always fully appreciate the subtlety of a prosecutor’s argument relating to a defendant’s guilty state of mind as opposed to a defendant’s failure to prove he is not guilty. Perhaps, as well, a jury may be able to discern a difference between a defendant proving his innocence to a police officer as compared to proving his innocence to the jury itself. Nonetheless, the State should eschew argument that reasonably could confuse the jury regarding the presumption of innocence and burden of proof, and in my view, the majority errs today in condoning such conduct. From this day forward, DUI prosecutors in cases involving a refusal will be totally uninhibited from telling the jury a defendant who refuses a breath test has failed to prove his innocence to the police officer who offered the test. From my perspective, this is shifting the burden of proof to defendant, and even if the majority is correct that such argument does not shift the burden, it is simply too close to doing so for my comfort zone.
Prosecutors most assuredly should be allowed to elicit evidence of a defendant’s refusal and argue such refusal is evidence that defendant must have believed he could not pass the breath test. However, further arguing defendant failed to prove he was “not guilty” to the officer who offered the test tends to blur the distinction between the defendant’s state of mind and the State’s burden of proof and thus should not be permitted.