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05/26/88 the People of the State of v. Miguel A. Pena

May 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MIGUEL A. PENA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 671, 170 Ill. App. 3d 347, 120 Ill. Dec. 641 1988.IL.842

Appeal from the Circuit Court of Du Page County; the Hon. Thomas E. Callum, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Miguel Pena, was convicted in the circuit court of Du Page County of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)), driving with a blood-alcohol content greater than .10 (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(1)), reckless driving (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-503), fleeing and eluding a peace officer (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-204), and three counts of speeding (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-601). Defendant appeals, raising the following issues: (1) whether the trial court erred in entering convictions on three counts of speeding arising from a single transaction or occurrence; (2) whether speeding is a lesser included offense of reckless driving; (3) whether the complaint was sufficient to charge reckless driving; (4) whether defendant was improperly convicted of both driving under the influence of alcohol and driving with a blood-alcohol content greater than .10 based upon the same physical act; (5) whether the State proved defendant guilty beyond a reasonable doubt of driving under the influence of alcohol; and (6) whether the State proved defendant guilty beyond a reasonable doubt of fleeing and eluding a peace officer.

Hanover Park police office John Runion was on mobile radar patrol in the early morning hours of July 6, 1985. He was driving west-bound on Lake Street at approximately 2:20 a.m. when he observed a black Ford Mustang heading in the opposite direction. The Mustang tripped his radar at 85 miles per hour. After checking the accuracy of his radar, he turned around and pursued the black car, activating his lights and siren in the process. Although he accelerated to 95 miles per hour, the Mustang continued to gain on him. The driver of the Mustang began weaving between lanes, forcing other cars to brake to avoid being hit. After about 1 1/2 miles, the object of the pursuit was forced to stop at a red light at Somerfield Road. Runion pulled up behind and ordered the driver out of the car. As defendant, who was the driver, exited the car Runion noticed an odor of alcohol about him. The officer also noticed that defendant's eyes were bloodshot, that his speech was slurred, that he had difficulty getting out of the car, and that he swayed as he stood up. Runion then placed defendant under arrest and handcuffed him. Runion and another officer, Dexter Marks, searched defendant's car.

Runion drove defendant to the Hanover Park police station and gave him a breath test, which resulted in a reading of .14. Runion cited defendant for the offenses noted above, as well as improper lane usage and illegal transportation of alcohol.

At trial, Runion and Marks testified for the State. Defendant testified in his own behalf. He admitted that he was speeding on July 6, 1985, but denied driving recklessly or attempting to elude Officer Runion. He stated that he did not hear the officer's siren and did not see the lights until he had stopped at the red light. He admitted having "a couple of drinks" that evening. He stated that he had had an argument at a bar with a girl he was dating and left quickly, taking out his frustrations on the Mustang's accelerator.

The court found defendant guilty of both driving under the influence counts and all three speeding counts, as well as reckless driving and fleeing and eluding. The court found the defendant not guilty of improper lane usage and illegal transportation of alcohol. The court sentenced defendant to concurrent terms of one year's probation with 60 days in the county jail on the driving under the influence of alcohol, reckless driving and fleeing and eluding counts, and imposed various fines thereon. It ordered defendant to pay court costs on the first speeding conviction, but did not impose any sentence on the remaining speeding counts.

Initially, the State concedes that defendant cannot be convicted of both driving under the influence and driving with a blood-alcohol content greater than .10 under the rule enunciated in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. In King, which we discuss more fully below, the supreme court held that a defendant cannot be convicted of more than one offense carved from the same physical act. (King, 66 Ill. 2d at 566.) In People v. Atwell (1984), 129 Ill. App. 3d 724, 473 N.E.2d 89, the State also conceded, and the appellate court agreed, that defendant could not be convicted of two driving under the influence offenses based on the same physical act. (Atwell, 129 Ill. App. 3d at 728; see also People v. Malik (1983), 113 Ill. App. 3d 206, 214, 446 N.E.2d 931.) We also agree with defendant and the State that one of defendant's DUI convictions must be vacated.

Defendant's first contested issue on appeal is whether the trial court erred in entering three speeding convictions arising from a single transaction. Defendant argues that People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, forbids multiple convictions for the same offense based on a single transaction or course of conduct. The State responds that the three convictions in fact represented different offenses against different victims.

The State contends that a speeding violation is "a particular act at a particular moment and location." According to the State, at the initial "moment," the defendant was eastbound on Lake Street in the Village of Hanover Park, and Runion clocked him at 85 miles per hour in a 40-miles-per-hour speed zone. After Runion began his pursuit of defendant's vehicle, he accelerated to 95 miles per hour but could not catch up to defendant. At this point, there was other eastbound traffic on Lake Street, and the speed limit was 45 miles per hour. At some point, defendant entered the Village of Roselle and continued at approximately 95 miles per hour in a 45-miles-per-hour zone. Thus, the State postulates that it has defined three distinct offenses: At point one, defendant was traveling at 85 miles per hour in a 40 miles-per-hour zone, and the victims of the offense were the citizens of Hanover Park; at point two, defendant was traveling at least 95 miles per hour in a 45-miles-per-hour zone, and the "victims" were the other eastbound drivers on Lake Street; and at point three, defendant was driving 95 miles per hour in a 45-miles-per-hour zone, victimizing the citizens of Roselle. This reasoning is too tenuous to support the weight of the argument.

If we accept the State's argument, an officer, after following a speeder for, say 1,000 yards, will be able to write any number of tickets he chooses, depending on the units he uses: if he defines the offense as speeding for one yard, he could write 1,000 tickets. If he defines it as speeding for one foot, he could write ...


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