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People v. Atwell

OPINION FILED DECEMBER 28, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CHARLES ATWELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Atwell was convicted of driving while under the influence of alcohol and of driving while the alcohol concentration in his blood or breath was 0.10 or more.

We affirm one.

We vacate the other.

The only contested issues on appeal are whether the complaints stated a criminal offense and sufficiently informed defendant of the charges against him.

Both complaints were in the form of the uniform Illinois Citation and Complaint (Uniform Traffic Ticket), and were dated February 6, 1984. The first one charged defendant with "driving under influence" and cited section 11-501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)). The second complaint charged defendant with "driving with BAC in excess of .10" and cited section 11-501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(1)).

I

Defendant argues that the first complaint was defective because it did not charge him with driving under the influence of alcohol or driving under the influence of any other drug. In People v. Featherstone (1974), 23 Ill. App.3d 492, 318 N.E.2d 756, we reversed a conviction where the defendant had been charged with a violation of section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95 1/2, par. 11-501), by "`driving while under the influence of intoxicating liquor or narcotic drug, * * * then and there being under the influence of intoxicating liquor or narcotic drug.'" (23 Ill. App.3d 492, 492, 318 N.E.2d 756, 757.) We cited with approval language from People v. Johnson (1974), 16 Ill. App.3d 819, 307 N.E.2d 159, which noted that driving under the influence of alcohol and driving under the influence of a narcotic drug were two separate offenses which were set forth in different paragraphs of section 11-501. It was held in both Featherstone and Johnson that the complaints were void for failing to set forth the nature and elements of the charge with certainty, as required by the sixth amendment of the United States Constitution and section 111-3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 111-3(a)(3)).

Similarly, in People v. Utt (1983), 122 Ill. App.3d 272, 461 N.E.2d 463 (amended 1983, modified on denial of rehearing 1984), the court held that the uniform traffic citation charging the defendant with "driving while under the influence" and citing section 11-501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501(a)) was defective. The court observed that section 11-501(a) included the offenses of operating a vehicle with an alcohol concentration in the blood or breath of 0.10 or more, operating a vehicle while under the influence of alcohol, operating a vehicle while under the influence of any other drug or combination of drugs, or operating a vehicle while under the combined influence of alcohol or any other drug.

• 1 The complaint in the present case does not suffer the inadequacy of the complaints in Featherstone, Johnson, and Utt. In those three cases, neither the description of the offense nor the statutory citation informed the defendant whether he was being charged with driving under the influence of alcohol, or of drugs, or of a combination of the two. In the present case, the complaint cited section 11-501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)), which provides:

"(a) A person shall not drive or be in actual physical control of any vehicle within this State while:

2. Under the influence of alcohol."

The citation to section 11-501(a)(2) was sufficient to inform defendant that he was being charged with driving while under the influence of alcohol.

The need to allow leeway in the preparation of uniform traffic tickets was recognized by the supreme court in People v. Tammen (1968), 40 Ill.2d 76, ...


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