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People v. Jordan12/8/2004
law, all mandatory presumptions are now considered to be per se unconstitutional. Pomykala, 203 Ill.App.3d at 204, 784 N.E.2d at 788.
In the case sub judice, defendant argues that section 12-21.6(b) creates an unconstitutional mandatory rebuttable presumption of willful child endangerment based solely on the fact that a child under 6 years of age was left unattended in a motor vehicle for more than 10 minutes. 720 ILCS 5/12-21.6(b) (West 2002). The State counters that section 12-21.6(b) is a permissive presumption and relies on People v. Pomykala, 203 Ill.2d 198, 784 N.E.2d 784 (2003).
In Pomykala, the defendant was convicted of reckless homicide after his vehicle hit an oncoming vehicle while he was driving under the influence of alcohol. A nonpattern jury instruction was given based on section 9-3(b) of the Code (720 ILCS 5/9-3(b) (West 2000)). The instruction stated that if the jury found that the defendant was operating his vehicle under the influence of alcohol at the time of the accident, it was to presume that the defendant acted recklessly unless disproved by contrary evidence. Pomykala, 203 Ill.2d at 202, 784 N.E.2d at 787. The statute provided:
" '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.' " Pomykala, 203 Ill.2d at 202, 784 N.E.2d at 787, quoting 720 ILCS 5/9-3(b) (West 2000).
The defendant argued on appeal that section 9-3(b) created a mandatory presumption that violated his right to due process.
In resolving the defendant's challenge to the constitutionality of section 9- 3(b), our supreme court looked at a prior version of section 9-3(b), which read:
" '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 prima facie evidence of a reckless act.' " Pomykala, 203 Ill.2d at 204, 784 N.E.2d at 788, quoting Ill.Rev.Stat.1991, ch. 38, par. 9-3(b).
The court noted that, in amending the statute, the legislature left out the term "prima facie " and instead incorporated the definition of "prima facie. " The court went on to find that section 9-3(b), as amended, contained an unconstitutional mandatory presumption because the definition of "prima facie " as included necessitated "a finding of recklessness without any factual connection between the intoxication and the reckless act, unless this presumed connection is disproved." Pomykala, 203 Ill.2d at 208, 784 N.E.2d at 790.
The State argues that unlike Pomykala, the statute in question here does not contain the phrase "shall be presumed." In the absence of the phrase "shall be presumed," the presumption allows for, but does not require, the fact finder to make the inference and, therefore, the statute is permissive on its face.
The primary rule of statutory construction is to give effect to the intent of the legislature. Pomykala, 203 Ill.2d at 207, 784 N.E.2d at 790. In doing so, we must look to the language used in the statute itself and give it its plain and ordinary meaning. Pomykala, 203 Ill.2d at 207, 784 N.E.2d at 790.
The State correctly asserts that the statute in question here does not incorporate the term "shall be presumed." Rather, the statute contains the language, "[t]here is a rebuttable presumption ." 720 ILCS 5/12- 21.6(b) (West 2002). "There is" without qualifying language establishes the existence of the presumption and indicates that the presumption is to be applied without any leeway for individual discretion. Furthermore, the phrase "rebuttable presumption" is defined as "an inference drawn from certain facts that establish a prima facie case, which may be o
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