Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. GEORGE BOROVIC, JR., Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
This appeal questions the propriety of a conviction of the offense of driving while license suspended (Ill Rev Stats 1967, c 95 1/2, § 6-303) in DuPage County after a plea of guilty and judgment of conviction of the same charge in Kane County.
Defendant claims that the judgment below was in error because it constituted a successive trial for the same offense against the State within the bar of either the constitutional provision against double jeopardy (Ill Const, § 10, art 2) or a similar statutory provision of Ill Rev Stats 1967, c 38, 3-4(a)(1) prohibiting a subsequent prosecution based on the same facts as a former prosecution.
The issue narrows to the question of whether the acts charged in each county were part of a single, continuous offense, as the State agrees that, after judgment, such offense cannot be again prosecuted. The State urges that the defendant has the burden of proof to show the singleness and continuity of the offense and that he has not sustained that burden on the record.
Defendant was operating a motor vehicle in Elgin, Kane County, Illinois, on April 21st, 1968. The record does not show the exact time such driving was commenced, nor the exact time the Elgin police saw the defendant driving.
An effort was made by the Elgin police to cause the defendant to stop his vehicle because the manner in which defendant was driving had come to their attention. Defendant eluded the Elgin police by proceeding from Elgin onto the Northwest Toll Road in an easterly direction at a high rate of speed.
Trooper Wills of the DuPage County police testified that within minutes after the Elgin police car began pursuit he was aware of the situation from a radio report, although he wasn't involved in the chase at that particular time. Some time thereafter he was informed by radio that the Elgin car had lost defendant on the Tollway, and was advised to try for an intercept on Route 59 as this was the next exit. The witness moved into a position on Route 59. He observed the defendant coming south on Route 59 behind a stream of cars, running normally, and as the defendant passed the squad car the witness flashed his light, and defendant "floored it." The chase continued for approximately five miles at speeds which, at times, exceeded 100 miles an hour. At approximately 5:15 the witness intercepted defendant in a cornfield and issued the ticket.
The arresting officer was of the opinion that, from the time he first heard the report on the radio to the time he apprehended defendant, it was "approximately a half hour, just guessing, I mean."
The defendant did not testify.
The trial court based its denial of a motion to dismiss on the theory that when the defendant was first confronted by the Kane County authorities, cessation of driving at that time was mandatory, and defendant, by his own acts of continuing to drive in his attempt to elude the authorities, thereby committed a new and separate offense.
While a mandatory duty to cease driving when confronted by police is a realistic standard for a unit of the offense of eluding police, it is irrelevant to the violation of driving on a suspended license as the defendant was under a mandatory duty to cease driving during the entire time he was operating his automobile regardless of any intervention of the police.
The charge of driving while license suspended requires proof of the act of driving and the fact of the suspension of the driving license. The existence of two offenses is dependent upon the violation of a severable duty.
There can, of course, be separate convictions in separate counties, or even in one county, for the offense of driving with license suspended if the elements of the offense are present under circumstances which are legally separate and distinct, namely two separate acts of driving, which are not part of a continuing venture.
Unfortunately the statute (Ill Rev Stats 1967, c 95 1/2, § 6-303) does not clearly define the unit of the offense of driving with license suspended and we must look elsewhere for a definition of what is ...