¶1specially concurring:
¶2For the reasons articulated in Justice Lytton’s dissent, I disagree with Justice Schmidt’s statement that IPI Criminal 4th No. 23.30B “is applicable to the facts in this case.” 347 Ill. App. 3d at 431. Nevertheless, I do not believe reversible error occurred. The applicable test is whether the instructions, considered as a whole and read as a series, are sufficiently clear to avoid misleading the jury. Hartness v. Ruzich, 155 Ill. App. 3d 878 (1987); Wood v. Mobil Chemical Co., 50 Ill. App. 3d 465 (1977). A deficiency in one instruction may be cured by the clarity of others. See Hartness, 155 Ill. App. 3d 878; Wood, 50 Ill. App. 3d 465. The record shows that before giving IPI Criminal 4th No. 23.30B, the judge gave a series of four instructions specifically outlining the elements of the charged offense (driving under the influence of alcohol). The instructions clearly and unambiguously stated the requisite elements for a guilty verdict. Considering the instructions as a whole, I simply do not believe that IPI Criminal 4th No. 23.30B misled the jury.
¶3To be clear, I disagree that “IPI Criminal 4th No. 23.30B simply tells the jury that if the defendant was under the influence of alcohol at the time of his arrest, all of the evidence about the prescription drugs is irrelevant.” 347 Ill. App. 3d at 431. The instructions on the elements of the charged offense, not IPI Criminal 4th No. 23.30B, sent that message to the jury.
¶4dissenting:
¶5I dissent from the majority’s conclusion that IPI Criminal 4th No. 23.30B is applicable to the facts of this case. Additionally, the instruction was given in a manner that confuses the issues.
¶6The trial court cannot instruct the jury concerning issues not supported by the evidence. People v. Richards, 64 Ill. App. 3d 472, 474 (1978). IPI Criminal 4th No. 23.30B instructs the jury that a defendant’s legal entitlement to use drugs or alcohol is no defense to a charge of driving under the influence of those drugs or alcohol. Hall does not make this argument. Hall was charged with driving under the influence of alcohol and argues that if he was impaired, it was due to medication, not alcohol. If the jury believed Hall, it could have concluded that the State failed to prove beyond a reasonable doubt an essential element of the offense charged, i.e., that Hall was under the influence of alcohol. Hall may have been under the influence of drugs, but he was not charged with driving under the influence of drugs. Whether Hall was legally entitled to use the drugs is irrelevant, and it was reversible error to instruct the jury otherwise. See Richards, 64 Ill. App. 3d at 474.
¶7Furthermore, the instruction, as it was given, was misleading and could have confused the jury. Jury instructions must not be misleading or confusing and should fully and fairly inform the jury of the applicable law. People v. Quick, 236 Ill. App. 3d 446, 454 (1992). IPI Criminal 4th No. 23.30B contains alternative language that can be used to apply the instruction to five different subsections of section 11 — 501(a). The complete instruction, with its alternative language reads:
“The fact that a person was legally entitled to use [(drugs) (alcohol) (any combination of drugs and alcohol)] is not a defense to a charge of [(driving under the influence of drugs) (driving under the influence of alcohol) (driving under the combined influence of alcohol and drugs) (driving with an alcohol concentration of 0.08 or more)].” Illinois Pattern Jury Instructions, Criminal, No. 23.30B (4th ed. 2000).
¶8For the instruction to make sense, the defense raised must match the offense charged. For example, if a defendant charged with driving under the influence of alcohol raises the defense that he is legally entitled to consume alcohol, it would be appropriate to instruct the jury that the defendant’s legal entitlement to consume alcohol is no defense to driving under the influence of alcohol. Similarly, if a defendant is charged with driving under the influence of drugs, it is no defense that he was legally entitled to use those drugs. It was incorrect to instruct the jury that Hall’s legal entitlement to use drugs was no defense to the charge of driving under the influence of alcohol. This is not because the defense is valid but, rather, because it confuses the issues. See Quick, 236 Ill. App. 3d at 454-55. Hall introduced evidence that he was using prescription drugs to refute the State’s argument that he was under the influence of alcohol, not to suggest that because the drugs were prescribed he could not be convicted of driving under the influence of alcohol. The jury instruction, as given, did not fully and fairly inform the jury of the law applicable to Hall’s defense and confused the issues for the jury.
¶9Because I disagree with the majority’s conclusion that IPI Criminal 4th No. 23.30B was applicable to the facts of this case, and because the manner in which it was given confused the issues, I would reverse Hall’s conviction and remand for a new trial.