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12/13/95 PEOPLE STATE ILLINOIS v. MICHAEL DVORAK

December 13, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL DVORAK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of De Kalb County. No. 94-TR-1251. Honorable Philip DiMarzio, Judge, Presiding.

Rehearing Denied January 9, 1996. Released for Publication January 9, 1996.

The Honorable Justice Geiger delivered the opinion of the court: McLAREN, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Geiger

The Honorable Justice GEIGER delivered the opinion of the court:

The defendant, Michael Dvorak, appeals (145 Ill. 2d R. 604(f)) from the denial of his motion to dismiss, on the basis of double jeopardy, the cause prosecuted against him for driving under the influence of alcohol (DUI). We affirm and remand for further proceedings.

On February 4, 1994, the defendant was charged with DUI (625 ILCS 5/11-501(a)(2) (West 1992)). On that date he was also served with notice of the statutory summary suspension of his driving privilege which suspension would take place on the 46th day following the issuance of the notice of suspension. The notice was issued after the defendant submitted to a blood-alcohol concentration (BAC) test which disclosed a BAC of 0.13, a concentration which triggers the suspension of his driver's license under Illinois' implied-consent statute for a minimum of three months if he is a first offender. Under the implied-consent statute, any person who drives or is in actual physical control of a vehicle upon the public highways of this State is deemed to have given consent to such chemical testing to determine the amount of alcohol in his blood after he is arrested for DUI or a similar offense as provided by the statute. See 625 ILCS 5/11-501.1 et seq. (West 1992).

On March 22, 1994, the defendant filed a petition to rescind the summary suspension, alleging that he "was not lawfully placed under arrest" for DUI or a similar offense as defined by the statute. On the same date, the summary suspension of his driving privilege was rescinded in an agreed order.

On April 17, 1995, the defendant moved to dismiss the DUI charges, asserting that further prosecution was prohibited by the double jeopardy clauses of the United States and Illinois Constitutions. (U.S. Const., amend. V ("nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"); Ill. Const. 1970, art. I, ยง 10 ("No person shall be *** twice put in jeopardy for the same offense").) He asserted, inter alia, that the rescission of the suspension amounted to an acquittal barring further prosecution. (Since there is no report of proceedings, it is not entirely clear from the record whether defendant was then relying on the prohibition against multiple punishments, or the prohibition against further prosecution after acquittal, or both.)

On appeal, defendant first argues, in the light of recent decisions in the still developing law of double jeopardy, that the imposition of a statutory summary suspension of his driving privilege constitutes "punishment" barring further prosecution. (See, e.g., People v. Towns (1995), 269 Ill. App. 3d 907, 207 Ill. Dec. 279, 646 N.E.2d 1366 (forfeiture of assets sought by State in civil proceeding separate from criminal prosecution amounted to punishment and constitutional prohibition against double jeopardy barred further punishment of defendant in criminal proceeding).) In conclusory fashion and without sufficient citation to legal authority, the defendant also urges that further criminal prosecution is barred because the rescission of his summary suspension amounted to a prior "acquittal."

We first consider whether the statutory summary suspension of a driver's privilege under the implied-consent statute is a "punishment" for double jeopardy purposes which would bar further punishment or prosecution. We believe this issue is one of first impression in this jurisdiction.

The prohibition against double jeopardy protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense when sought in separate proceedings. ( Towns, 269 Ill. App. 3d at 910, citing United States v. Halper (1989), 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892.) In determining whether the State is attempting to subject the defendant to multiple punishments for double jeopardy purposes despite the civil label applied to a proceeding involving the imposition of a sanction, a court must first determine whether the sanction amounted to a "punishment" for those purposes, and, second, whether there was a prosecution separate and distinct from the criminal proceeding. See Towns, 269 Ill. App. 3d at 911 (applying the two-part inquiry to a civil, asset forfeiture proceeding), relying on United States v. $405,089.23 United States Currency (9th Cir. 1994), 33 F.3d 1210.

In United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892, Halper had been convicted of 65 counts of making false claims for Medicare reimbursement which resulted in the government being overcharged a total of $585. He was sentenced to two years of imprisonment and fined $5,000. The government then sued under a civil false claims statute which subjected Halper to a statutory penalty of more than $130,000. The Federal district court concluded that the penalty was barred by the double jeopardy clause's prohibition against multiple punishments. In a direct appeal to the United States Supreme Court, the question framed by the Court was whether the statutory penalty under which Halper was subject to a liability of $130,000 for false claims amounting to $585 constituted a second "punishment" for the purpose of double jeopardy analysis.

The Court recognized that the labels "civil" or "criminal" affixed either to the proceeding or to the relief imposed were not controlling in determining the applicable protection of Federal constitutional law and that "the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve." ( Halper, 490 U.S. at 448, 104 L. Ed. 2d at 501, 109 S. Ct. at 1901.) The Court noted that a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment: "Punishment serves the twin aims of retribution and deterrence." Halper, 490 U.S. at 448, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902.

Although in passing the Court stated somewhat broadly that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term," the Court's holding was much narrower. ( Halper, 490 U.S. at 448, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902.) The Court's narrow holding was that "under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution," and the Court acknowledged that "this inquiry will not be an exact pursuit." ( Halper, 490 U.S. at 448-49, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902.) The Halper Court announced "a rule for the rare case" concerning whether a monetary exaction by the government from the defendant was so disproportionate ...


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