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04/02/87 Harold Koss, v. David Slater

April 2, 1987





507 N.E.2d 826, 116 Ill. 2d 389, 107 Ill. Dec. 673 1987.IL.421

Motion for a supervisory order.


JUSTICE GOLDENHERSH delivered the opinion of the court.


Pursuant to Supreme Court Rule 383 (103 Ill. 2d R. 383), petitioner, Harold Koss, filed a motion for a supervisory order directed to respondent, David Slater, Judge of the circuit court of Effingham County.

In the circuit court petitioner was charged with driving while under the influence of alcohol (hereinafter DUI (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(1)). After reviewing petitioner's affidavit of assets and liabilities, the circuit court found petitioner was indigent and appointed the public defender to represent him. Petitioner had refused to submit to a breathalyzer test and pursuant to section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1), after notice to petitioner, his driver's license was summarily suspended. Appointed counsel filed a motion for rescission of the summary suspension of petitioner's driver's license and was advised by the court that because those proceedings were civil in nature, and not criminal, he was not permitted to represent petitioner at the hearings on rescission of the summary suspension or for the issuance of a judicial driving permit.

Petitioner seeks the entry of a supervisory order "direct[ing] or find[ing] that an indigent defendant charged with DUI pursuant to Ill. Rev. Stat. of 1986 [ sic ], chapter 95 1/2 sec. 11-501 is entitled to the services of his court-appointed counsel or Public Defender for Rescission of Summary Statutory Suspension Hearings under chapter 95 1/2 sec. 2-118.1 and the chapter 95 1/2 sec. 6-206.1 hearings for judicial driving permits."

The Illinois "implied consent" statute, in pertinent part, provides:

"(a) Any person who drives or is in actual physical control of a motor vehicle upon the public highway of this State shall be deemed to have given consent, subject to the provisions of Section 11-501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person's blood . . .." (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(a).)

The statute provides for summary suspension of the driving privileges of a person who refuses to submit to the requested tests. It further provides:

"(b) Upon the notice of statutory summary suspension served under Section 11-501.1, the person may make a written request for a judicial hearing in the circuit court of venue. . . . Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11-501, or a similar provision of a local ordinance, the hearings shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension. Such hearings shall proceed in the court in the same manner as in other civil proceedings." Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1(b).

Petitioner contends first that an indigent defendant, after he has been formally charged with DUI, is entitled to the assistance of the public defender. (Ill. Rev. Stat. 1985, ch. 38, par. 113-3(b); Ill. Const. 1970, art. I, sec. 9; People v. Ash (1984), 102 Ill. 2d 485.) Petitioner argues that he is also entitled to representation by such appointed counsel at any statutory-suspension (implied-consent) and judicial-driving-permit hearings. Such hearings, he argues, constitute adversarial proceedings involving the continued representation of the client and depriving the client of the assistance curtails his right to the undivided loyalty of his counsel; citing People v. Ash (1984), 102 Ill. 2d 485, and Rules 1-102(a)(5), 5-107(a), and 2-109(b) of the Code of Professional Responsibility (87 Ill. 2d Rules 102(a)(5), 5-107(a), 2-109(b)), he argues further that he is entitled to representation free from conflicting interests.

Petitioner points out that evidence of his refusal to submit to chemical testing is admissible against him in the criminal prosecution for DUI (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.2(c)); that without appointed counsel present at the implied-consent hearing where such matters are resolved, an indigent defendant is effectively precluded from attempting to suppress such detrimental evidence. Petitioner argues that the effect of the rescission of a statutory summary suspension is the equivalent of the suppression or exclusion of evidence at any other criminal proceeding; that the denial of the assistance of counsel at the prior hearing could result in the introduction against petitioner of illegal evidence which would be held inadmissible against his wealthier counterpart. This, he contends, deprived him of equal protection of the law. Furthermore, he urges that the ...

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