SUPREME COURT OF ILLINOIS
526 N.E.2d 157, 123 Ill. 2d 233, 122 Ill. Dec. 17 1988.IL.966
Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Cass County, the Hon. Arthur R. Strong, Judge, presiding.
JUSTICE CUNNINGHAM delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM
On July 22, 1986, defendant, Frank E. Baker, pleaded guilty to driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)). Pursuant to section 11-501(e) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(e)), the circuit court of Cass County ordered defendant to undergo a professional evaluation to determine if an alcohol or other drug abuse problem exists and the extent of such problem. This court takes judicial notice that, by amendments prior to defendant's arrest and conviction, the General Assembly renumbered the paragraphs in the statute and as a result section 11-501(e) became 11-501(f). Defendant later filed a motion to rescind the order, alleging that section 11-501(f) was unconstitutional because defendant, indigent, is forced to pay a fee to a private industry and is forced to testify against himself in violation of the fifth amendment of the United States Constitution and article I, section 10, of the Illinois Constitution (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10). On August 26, 1986, the court denied defendant's motion, and at his own request, the court found defendant in contempt of court and sentenced him to seven days in jail with the opportunity of purging himself of contempt by complying with the order. The sentence was stayed pending appeal.
The appellate court found that "negative facts and Conclusions contained in an alcohol evaluation could cause a court to impose a more severe sentence on an individual convicted of driving under the influence of alcohol than it would impose absent knowledge of the matters stated in the alcohol evaluation." (158 Ill. App. 3d 756, 757.) The appellate court stated that since the fifth amendment is applicable and there are so many driving-while-intoxicated cases each year, it would be impractical for the court to determine case by case whether the questions asked will in some way incriminate the defendant. The appellate court also held that defendant need not attend the evaluation with an attorney and refuse to answer the questions. The People appealed and we allowed the petition for leave to appeal pursuant to our Rule 315 (107 Ill. 2d R. 315).
The People argue that section 11 -- 501(f) is constitutional and does not violate the fifth amendment of the United States Constitution and article I, section 10, of the Illinois Constitution of 1970. Further, since the section has not been declared unconstitutional, the section must be complied with by defendant.
The significant issue before this court is whether or not a defendant can claim the fifth amendment when answering questions on a professional evaluation needed for sentencing after the defendant has pleaded guilty to driving while intoxicated. The issue requires an analysis of not only the fifth amendment privilege but also the sentencing phase of a trial.
Article I, section 11, of the Illinois Constitution of 1970 provides, in part, that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." (Ill. Const. 1970, art. I, § 11.) The General Assembly also incorporated that policy into the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1001-1-1 et seq.), which provides:
"The purposes of this Code of Corrections are to:
(a) prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders;
(b) forbid and prevent the commission of offenses;
(c) prevent arbitrary or oppressive treatment of persons adjudicated ...