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Definition of Under the Influence of Alcohol


     By Ramsell & Associates, LLC

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“A person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care." Ill. Pattern Jury Instr.-Criminal 23.29 (4th ed.)

The various types of evidence and methods used to prove whether a person is under the influence of alcohol is discussed elsewhere in this book. However, some items deserve particular discussion here.

Scientific proof of intoxication is unnecessary to sustain a conviction for driving under the influence where there is credible testimony from the arresting officer. People v. Elliott, 337 Ill.App.3d 275, 271 Ill.Dec. 613, 785 N.E.2d 545 (2003)

To prove a defendant was under the influence of alcohol, the prosecution must establish that defendant was less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public. People v. Gordon, 881 N.E.2d 563, 567, 378 Ill.App.3d 626, 626, 317 Ill.Dec. 395, 399 (1st Dist. 2007)

Mere consumption of alcoholic beverages does not establish intoxication. (People v. Togher (1970), 127 Ill.App.2d 141, 262 N.E.2d 88 (abstract of opinion).) Further, testimony that the breath of the accused smelled of alcohol is not sufficient to prove that a person was intoxicated. People v. Thomas (1975), 34 Ill.App.3d 578, 580, 340 N.E.2d 174; People v. Winfield (1973), 15 Ill.App.3d 688, 690, 304 N.E.2d 693.

Testimony that the breath of the accused smelled of liquor, standing alone, is not sufficient proof that defendant was intoxicated. (People v. Clark, 123 Ill.App.2d 41, 259 N.E.2d 636.)

The odor of alcohol may imply the "consumption of alcohol" but that is the only inference that may be drawn. (People v. Holtz, (1974), 19 Ill.App.3d 781, 788, 313 N.E.2d 234.)

Illinois law states that blood or breath alcohol levels may be used to prove that someone was impaired, and the law suggests that certain presumptions occur about whether the defendant is under the influence based on the results of a blood or breath test alone. 625 ILCS 5/11-501.2(b) states:

(b) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person's blood or breath at the time alleged as shown by analysis of the person's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
1. If there was at that time an alcohol concentration of 0.05 or less, it shall be presumed that the person was not under the influence of alcohol.
2. If there was at that time an alcohol concentration in excess of 0.05 but less than 0.08, such facts shall not give rise to any presumption that the person was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol.
3. If there was at that time an alcohol concentration of 0.08 or more, it shall be presumed that the person was under the influence of alcohol.
4. The foregoing provisions of this Section shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question whether the person was under the influence of alcohol.

These statutory presumptions are the subject of some controversy, as the United States Supreme Court has held that mandatory presumptions can violate Due Process. Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39, 50 (1979). The actual IPI (Illinois Pattern Instruction) jury instruction substituted the word “shall” and replaced it with the word “may” presume. See Ill. Pattern Jury Instr.-Criminal 23.30 (4th ed.)

In People v. Hester, 178 Ill.App.3d 360, 532 N.E.2d 1344, 127 Ill.Dec. 335 (1st Dist.1988), rev'd 131 Ill.2d 91, 544 N.E.2d 797, 136 Ill.Dec. 111 (1989), the appellate court held that the jury instruction denied defendant due process of law because (1) the instruction given to the jury in that case, a modified IPI instruction, contained a mandatory presumption and the jury was not instructed to find beyond a reasonable doubt that defendant's blood alcohol level was 0.08 or more before it could rely on the presumption, and (2) the trial court's substitution of the word “may” for “shall” was tantamount to judicial legislation. See Hester, 131 Ill.2d at 97–98, 544 N.E.2d at 800–01, 136 Ill.Dec. at 114–15. The Illinois Supreme Court reversed, finding (1) the instruction was in fact permissive, and (2) the instructions given to the jury, taken as a whole, correctly instructed the jury as to the State's burden of proof. Hester, 131 Ill.2d at 101–02, 544 N.E.2d at 802, 136 Ill.Dec. at 116.

Despite that pronouncement, questions remain. In People v. Pomykala, (2003) 203 Ill.2d 198, 271 Ill.Dec. 230, the Illinois Supreme Court held that the provision of the reckless homicide statute was unconstitutional since the statute stated that being under the influence of alcohol or other drugs at the time of an alleged violation was presumed to be evidence of a reckless act unless disproved by evidence to the contrary. The Supreme Court held that the statute improperly created an unconstitutional mandatory presumption of recklessness. In doing so, the Court also held that the IPI jury instruction which essentially mirrored the statute similarly created an unconstitutional mandatory presumption of recklessness, and thus violated defendant's due process rights.

The testimony of the arresting officer alone is sufficient, if credible, to sustain a conviction for driving under the influence of alcohol. People v. Janik, 165 Ill.App.3d 453, 461, 116 Ill.Dec. 352, 518 N.E.2d 1332 (1988). The experience of a police officer and the number of times he has arrested persons charged with drunken driving are important factors in determining the sufficiency of his testimony to support a conviction for driving while under the influence of alcohol. See People v. Casa, 113 Ill.App.2d 1, 251 N.E.2d 290; People v. Buzinski, 64 Ill.App.2d 194, 212 N.E.2d 270.

Field sobriety tests are also relevant either as evidence of physical and mental impairment (see People v. Sides, 199 Ill.App.3d at 206-07, 145 Ill.Dec. 160, 556 N.E.2d 778) or as awareness of guilt (see People v. Roberts, 115 Ill.App.3d 384, 387, 71 Ill.Dec. 16, 450 N.E.2d 451 (1983) (holding that refusal to take a potentially incriminating test, such as a field sobriety test, is evidence of knowledge of guilt)) See also People v. Bostelman, 325 Ill.App.3d 22, 258 Ill.Dec. 679 (2d Dist.,2001).

Other evidence that can be used to establish guilt includes evidence that the defendant attempted to evade responsibility by remarking that he had acquaintances and a family member who were police officers and by actually refusing to take a breath test. Such conduct can be interpreted as of the type that implies consciousness of guilt. See People v. Thomas, 200 Ill.App.3d 268, 283, 146 Ill.Dec. 693, 558 N.E.2d 656 (1990) (driver refused to take breath test); People v. Moore, 279 Ill.App.3d 152, 154-55, 215 Ill.Dec. 479, 663 N.E.2d 490 (1996) (driver fled from police officer after traffic stop).

Also, the government must prove that a defendant was under the influence at the time he or she was driving. Thus, there must be an evidentiary connection between a defendant’s post-driving condition and his condition at the time of driving. People v. Kappas (4th Dist 1983) 120 Ill.App.3d 123, 76 Ill.Dec. 1; People v. Malik (4th Dist. 1983) 113 Ill.App.3d 206, 446 N.E.2d 931. In order to prove the corpus delicti, the state has the burden of proving that the defendant drove a motor vehicle at the time and place in question and was, at that time, under the influence. People v. Williams, 3 Ill.App.3d 1036, 279 N.E.2d 735. (1972)

Certain injuries and other physical conditions can raise a reasonable doubt as to defendant’s guilt, thus requiring a reversal of a conviction for DUI. People v. Wheatley 4 Ill.App.3d 1088, 283 N.E.2d 279 (1972). Evidence of a disability that explains the police officer’s conclusion that a motorist was operating automobile while under the influence of alcohol can raise a reasonable doubt that the motorist is guilty. People v. Clark, 123 Ill.App.2d 41, 259 N.E.2d 636. In People v. Wheatley 4 Ill.App.3d 1088, 283 N.E.2d 279 (1972), evidence that the defendant suffered from a foot ailment was enough to create a reasonable doubt as to his guilt.

In People v. Clark, 123 Ill.App.2d 41, 259 N.E.2d 636 (1970) the defendant had been found unconscious behind the wheel of an automobile after having crashed into the windshield and was thereafter taken to the hospital on a stretcher. The Appellate Court held that a police officer's testimony that the breath of the accused smelled of liquor and that the defendant’s conduct at the hospital was unsure, he stumbled, swayed and spoke thick-tongued still did not meet the state's burden of proof on the charge of driving while under influence of alcohol.

In People v. Wallace, (citation)Ill.App., 273 N.E.2d 192 (1971) the Appellate Court held that the testimony of the police officer stating that he saw the defendant stagger from a restaurant toward his badly damaged automobile and that the officer smelled alcohol on his breath was insufficient to sustain conviction, particularly in light of absence of sobriety tests. Evidence at trial established that the defendant had suffered a head injury and loss of blood. At trial, the defendant’s testimony was uncontroverted that his automobile went out of control and struck a tree. The defendant then went into a restaurant to call his wife and then consumed some beer while waiting, thereafter returning to his automobile upon seeing the revolving light on the police car.

In People v. Winfield, the Court found that the State's evidence was so unsatisfactory as to raise a reasonable doubt of defendant's guilt. The court considered that the arresting officer made no attempt to administer any of the normal tests for sobriety and that the State's burden of proof rested upon the unsupported testimony of the officer that certain observations made by the officer, such as defendant's speech being fair and his behavior and actions normal, could hardly be deemed classic symptoms of intoxication. The Court also found that the defendant's physical condition could be rationally explained as a result of the head and leg injuries he suffered in collision with a viaduct. People v. Winfield 15 Ill.App.3d 688, 304 N.E.2d 693 (1973).

In People v. Thomas, 340 N.E.2d 174(1st .Dist.1975), it was held that where the defendant had suffered a head injury so severe that he required a serious operation (remaining unconscious for a month after the arrest), defendant's guilt was not established beyond a reasonable doubt where the arresting officer’s opinion of intoxication could have been based upon symptoms which could have been the result of the injury.

ABOUT THE AUTHOR: Donald J. Ramsell
Mr. Ramsell received his bachelor of science in criminal justice from Loyola University and his juris doctor, law degree, from DePaul University.

In 2002, Donald J. Ramsell became the only Illinois DUI defense attorney to appear and argue a DUI case before the United States Supreme Court in its entire 213 years of existence. In 2007, Mr. Ramsell was nominated and honored to become a Sustaining Member of the National College for DUI Defense.

This article is taken from Mr. Ramsell's book: "DUI Law and Practice Guidebook, 2009 ed. (Vol. 25, Illinois Practice Series)", which provides insight from an experienced DUI defense attorney about preparing a DUI case in Illinois. Topics covered include implied consent, procedure, and types of DUI evidence. It offers an evaluation of the relevant statutes and case law pertaining to DUI law in Illinois, and provides insight on preparing for and presenting a DUI case.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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