a good morning in the first case on our call this morning with agenda number one is number one of four zero two nine people in the state of illinois versus richard gun c drove his son my tractor trailer through an intersection and hit a car killing a seventeen year old at the time of the accident the defendant was under the influence of cannabis and he was charged with among other things reckless homicide the defendant was found guilty a few years later and sentenced in two thousand and four and by the time that the defendant was sentenced there had been some significant changes to the reckless homicide statute including the removal of the portion of the statute which would  under which the the defendant was found guilty and sentenced sort of a wholesale removal of that portion of the statute and our renaming of it to place it into the vehicle code and name it as aggravated driving while under the influence homicide statute when it came to driving while under the influence and causing the death of of persons so in apparent effort to remedy that problem the legislature move those that particular type of conduct which the defined it was charged and found guilty and renamed it aggravated dui placed in the vehicle code the sentencing structure three to fourteen years which resulted the defendant's fourteen year sentence remains to this day with the aggravated dui statute in the vehicle code so at all times relevant at the time the offense was committed at the time he was convicted in the time he was sentenced the conduct for which the defendant was found guilty and sentenced carried a punishment of three to fourteen years there really isn't any question about that  argued on appeal that he should be permitted to elect to be sentenced to a lesser sentence namely and a maximum of seven years because once the portion of the reckless homicide statute that includes that involve driving while under the influence and killing people was taken out of reckless homicide renamed do you aggravated you why what remains in reckless homicide is a maximum of seven years the defendant said that the election body of law should allow him to elect to be sentenced under that lower sentencing provision of the back of the homicide statute the second district appellate court agreed with the defendant the people appellate court as we argue here that this case is not an election case it doesn't involve election law the election body of law is designed for those circumstances in which it's clear that legislative intent  i would describe it sort of as the the climate is such that the legislature has determined that the conduct for which a given person is convicted no  longer should carry as severe a punishment so we saw this primarily in the situation of determine an indeterminant sentencing when the state change from determinant indeterminate that was obviously a big change in sentencing defendants got the opportunity to elect which one they would like to be sentenced under another example a good example an easy for me to explain is the theft statute which the defendant sides in their brief where at one point the one hundred fifty dollars was the cutting off point for misdemeanor versus felony theft well as time went by and money value changed and at some point the legislature determined that three hundred dollars actually should be the cutoff for a misdemeanor and then anything over three hundred dollars to be a felony people convicted of theft during that point of time when the sentencing structure changed well if i'm if i'm convicted of theft for something two hundred  twenty dollars which would have previously been a felony but now clearly the legislative intent the climate the will of the people if you will is that that no longer that value no longer should carry that strong it an opportunity to elect to be sentenced under the the new or lower sentencing structure yes that's not what happened in this case in this case at all times the conduct that mr gang cars engaged in has been punishable by three to fourteen years it's true that it appears now in a different part of the statute when i compiled statutes it's wrong in the criminal code but now in the vehicle code but at all points his conduct was punishable by the same amount of time so fourteen years has never been found by the legislature to be an inappropriate sentence for his conduct there was the added in this case charged yes he gets the ability to act with respect to the question about whether these are sentencing unhandsome and actors or elements of the offense i think the answer is that all of the law suggests that the it's the nature of the offen e than the need it in fact if you look at those appellate court cases where they talk about substantive changes to the statute they talk about nature or substantive elements of the offense these are in fact whether they're technically enhanced meant factors or elements i guess in the in the generic way there are elements of the offense that the people needed to prove and did prove beyond a reasonable doubt so they were they were they were proven beyond a reasonable doubt to the jury and i don't think that there's any distinction to be drawn for purposes of the election body of law between whether section you happen to be you know simply a sentencing enhancement or that it i certainly understand i guess i understand why she made the argument that she made but i think that it's but lied both by the language of the statute and by sort of the again the and all that really strange is the way well clearly there is a there is one element to the offense that is different which is that it was when it was reckless homicide there what you need to provoke with this recklessness no longer exists  a substantive change in the statute when the legislature made a change and they found that because the the act of recklessness is no law no longer needs to be proven obviously there's a substantive change and therefore the law that controls is the law that as it existed at the time of the offense so i guess argument is no argument is really two prong it's first of all we don't believe this is an election case because in fact there's no suggestion that the legislature ever intended that there lesser punishment for the conduct that the defendant gauged and then the second prong of our attack is that in any event there's a substantive change to the statute which the and the law governing that tells us that if in fact to the one that was handed in people view land which is a somewhat obscure first district decision where which was addressing the change that took place in the sex offense the actions in the early eighty's in in those situations the  court itself referred to ninety s three d as a sentencing provision in the case of people  or where the defendant is proven to have beyond a reasonable doubt to have been under the influence i think if you look at the whole thing it's obviously trying to address situations where a defendant has been charged with offense in addition to reckless homicide such as tried to mile under the influence and intoxication has been proven at the trial as a result of that other charge because of the legislature had intended to create a separate a case that we cited which is this court's decision and there's no question but that he couldn't back his conduct was criminalized under ninety s three a both before and after the amendment the only thing that changed was the sentencing provision which affect if you look at ninety three easy it says in cases where are the defendant has been determined have been under the influence as an element of the offense and we really don't know if that is necessarily don't totally agree with me about bad you must acknowledge that there is it's a very poorly written ambiguous provision ambiguities must be construed in favor of run it and so this really any the the alcohol it was reckless when he drove in other words he wouldn't have to prove any reckless acts and they act when they have presumption was taken out the the prosecutors were faced with the  visual burden really of having to prove not only that the person was and you created but also that they committed a reckless act and so by removing the intoxicated driving provisions from the reckless homicide statute and putting them quite frankly bri stick just because those are the statutes set address intoxicated driving by doing that they no longer have to prove the element of recklessness reckless homicide addresses criminal license reckless conduct and here briefly i just i want to just just a couple of things that she said one with respect to the rule of lenity in the ambiguity of committed the legislature intended that if one was driving while under the influence of alcohol in and killed people based on reckless conduct that they would be punishable by three to fourteen years and it remains that way i don't necessitate that again i guess the the i would like to just the turn element of the offense i guess that's maybe our biggest problem here with respect to the are going about sentencing in hansen's or not and i think the bigger picture of that is that it's clear that these are all all of these things whether they were artfully legislated or not it's clear that the legislature was looking for the people to prove that the defendant was engaging in this conduct including under the driving while under the influence of alcohol or drugs the offenses committed in order to qualify for that sentencing range and so whether we call it what he win illinois we call elements of the offense versus incensing factors or whether it's sort of a larger