APPEAL from the Circuit Court of Madison County; the Hon.
CLAYTON R. WILLIAMS, Judge, presiding.
PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ The State of Illinois appeals from an order of the circuit court of Madison County which denied its motion to vacate the court's findings and order.
Defendants, John Lozier and Frank J. LaFrank, were charged under a Collinsville city ordinance for driving under the influence of intoxicating liquor. The arresting officer filed an affidavit stating that the defendants refused to submit to the breathalyzer test when requested in violation of section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d)). The two cases were consolidated for hearing.
Defendants entered guilty pleas to the violation of the city ordinance, fines were imposed and each defendant was placed under court supervision for a period of one year. In each case, the court entered an order, without a hearing and over the objection of the assistant State's Attorney, that the officer did not have reasonable grounds to believe that defendant was driving under the influence of intoxicating liquor, that he was not orally and in writing informed of his rights and that defendant did not refuse to submit to the breathalyzer. The State filed a motion to vacate the findings and order as to the refusal charge. Subsequently, the court entered the following order:
"The above two cases were consolidated for hearing.
In each case the Court finds that the defendants were charged with driving under the influence of intoxicating liquor under the Collinsville City Ordinance; that the arresting officer filed an Affidavit that the defendant refused to take the breath test under Chapter 95- 1/2, § 11-501.1; that the defendant requested a hearing.
Further, on each case, on the jury assignment docket call each defendant negotiated a disposition of the charge with the Collinsville City Attorney; that without a hearing and over the objection of the Assistant State's Attorney, the Court entered an Order finding no probable cause to require the defendant to take the breathalyzer, and that the defendant did not refuse; and that the City Attorney, Ben Urban, did not object to the finding.
The Court holds that the State's Attorney is not a party to the hearing on the refusal to take the breathalyzer, and cannot object and cannot demand a hearing, when the charge of driving under the influence is under a City Ordinance as opposed to under the Illinois Vehicle Code.
The Motion to Vacate the finding and Order is therefore denied."
On appeal, the State challenges the propriety of the above order. The substance of the State's argument is that the Collinsville city attorney did not have the authority to prosecute, or in this case, to negotiate the disposition of the refusal charge. It is undisputed by the parties, and evidenced by the court's order, that the city attorney negotiated the pleas of both defendants. As best we can determine from the record, the agreement was that a fine would be imposed and supervision ordered on the DUI charge and, in turn, the refusal charge would be effectively dropped. The State's Attorney was not involved in the negotiations and did not agree to the terms.
The duty of the State's Attorney shall be, inter alia, "[t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned." (Ill. Rev. Stat. 1979, ch. 14, par. 5.) Section 16-102 of the Illinois Vehicle Code specifically provides:
"The State's Attorney of the county in which the violation occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State's Attorney." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 16-102.)
In the instant case, there is no indication that the Collinsville city attorney requested permission from the State's Attorney to prosecute this violation and it is obvious, from the posture of this appeal, that such permission has not been given.
In Village of Hoffman Estate v. Spychalski (1975), 33 Ill. App.3d 83, 337 N.E.2d 463, a traffic accident case, the defendant was charged with the failure to yield the right of way in violation of section 11-904 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-904.) The action was brought in the name of Village of Hoffman Estates and prosecuted by the municipal attorney although the record failed to disclose that the municipal attorney was given permission to do so as required by section 16-102. (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 16-102.) The ...