specially concurring:
I concur in the decision of the majority to reverse and remand this matter for a new trial. I write separately to acknowledge what I believe to be the technical validity of the argument raised by the State and the reason why I do not think we can adopt its reasoning.
It is well settled that a statute is presumed to be constitutional and that the party challenging it has the burden of establishing its unconstitutionality. People v. Jung, 192 Ill. 2d 1, 733 N.E.2d 1256 (2000). It is also well settled that a reviewing court has a duty to construe a statute in a manner that upholds its constitutionality, if that can be reasonably done. People v. Fisher, 184 Ill. 2d 441, 705 N.E.2d 67 (1998). We are, therefore, taxed with the responsibility of construing the reckless homicide statute (720 ILCS 5/9 — 3(b) (West 1998)) as constitutional if guidelines provided by the supreme court permit.
We are, however, also aware that our laws provide, and should, therefore, clearly articulate, the standards by which citizens, attorneys, and the courts determine how to conform their personal and professional conduct to the requirements of the State. City of Chicago v. Morales, 177 Ill. 2d 440, 687 N.E.2d 53 (1997). In the instant case, the statute provides:
“In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary.” 720 ILCS 5/9 — 3(b) (West 1998).
Plaintiff points out a distinction that is consistent with the language of the statute. Specifically, the State argues that the words “evidence of’ take this case out of the category of mandatory rebuttable presumptions which were found in People v. Watts, 181 Ill. 2d 133, 692 N.E.2d 315 (1998), to violate the due process guarantees in the state and federal constitutions. According to the State, the inclusion of the two words “evidence of,” together with the word “shall,” creates only a mandatory presumption that being under the influence of alcohol or drugs is some evidence of recklessness, not that being under the influence constitutes recklessness in and of itself.
I think we could, consistent with our duty to find a constitutional interpretation of the statute, appropriately accept the construction advanced by the State. But I also think that to do so requires a technical exercise of linguistic parsing that ill serves those — here trial court judges and jurors — who should be able to rely on the statute to determine their decisional obligations.
Accordingly, I concur in the decision.