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03/27/96 PEOPLE STATE ILLINOIS v. CARL L. FASBINDER

March 27, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CARL L. FASBINDER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Cumberland County. No. 95TR574. Honorable H. Dean Andrews, Judge Presiding.

Released for Publication May 6, 1996. As Corrected August 26, 1996.

Justices: Honorable Robert W. Cook, P.j., Honorable James A. Knecht, J., Concurring, Honorable Frederick S. Green, J., Specially Concurring. Presiding Justice Cook delivered the opinion of the court:

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

Defendant Carl L. Fasbinder was issued a ticket for driving under the influence of alcohol (DUI) in violation of section 11-501(a) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a) (West 1992)). Police asked defendant to submit to a breath test. Defendant consented, and the test showed his blood-alcohol concentration to be 0.18. Pursuant to sections 11-501.1 and 6-208.1(a)(4) of the Code (625 ILCS 5/11-501.1, 6-208.1(a)(4) (West 1992)), defendant's driver's license was summarily suspended for a period of one year. Defendant filed a petition to rescind his summary suspension, which was subsequently denied by the trial court. Defendant appealed. This court affirmed the denial to rescind summary suspension. People v. Fasbinder, No. 4-95-0418 (February 9, 1996) (unpublished order under Supreme Court Rule 23).

Defendant in the present case moved to dismiss the DUI charge on the grounds that the summary suspension of his driver's license was penal in nature and, therefore, his subsequent prosecution for DUI was barred by the double jeopardy clauses of the United States Constitution and the Illinois Constitution. U.S. Const., amend. V; Ill. Const. 1970, art. I, ยง 10. Defendant now appeals the trial court's denial of his motion to dismiss. 145 Ill. 2d R. 604(f) (providing for the appeal of a denial of a motion to dismiss on double jeopardy grounds).

The Second District Appellate Court recently considered this question in a case where the summary suspension was rescinded in an agreed order and the defendant then moved to dismiss the DUI charges. People v. Dvorak, 276 Ill. App. 3d 544, 658 N.E.2d 869, 213 Ill. Dec. 120 (1995). In Dvorak, the court considered the Supreme Court's decisions in United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989) (statutory penalty of $130,000 for Medicare overcharges of $585), Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993) (forfeiture of property used to facilitate drug-related crimes), and Department of Revenue v. Kurth Ranch, 511 U.S. , 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994) (tax imposed on illegal drugs following criminal penalty for same conduct). The second district rejected the argument that the test to be used, in determining whether summary suspension of driving privileges constitute punishment, is whether such suspension "'cannot fairly be said solely to serve a remedial purpose.'" Dvorak, 276 Ill. App. 3d at 549, 658 N.E.2d at 874, quoting Halper, 490 U.S. at 448, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902. The second district found the following language more instructive: "'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.'" Dvorak, 276 Ill. App. 3d at 547, 658 N.E.2d at 873, quoting Halper, 490 U.S. at 448, 104 L. Ed. 2d at 501, 109 S. Ct. at 1901.

According to the second district, the administrative statutory summary suspension of one's privilege to drive is clearly remedial in nature, designed to protect persons who travel the highways, and not punishment for double jeopardy purposes. Dvorak, 276 Ill. App. 3d at 551, 658 N.E.2d at 875, citing People v. Esposito, 121 Ill. 2d 491, 501, 521 N.E.2d 873, 877, 118 Ill. Dec. 396 (1988), and People v. Wegielnik, 152 Ill. 2d 418, 425, 605 N.E.2d 487, 490, 178 Ill. Dec. 693 (1992). Even though the suspension of the privilege to drive may have the incidental effect of deterring impaired drivers, that does not automatically mark the suspension as a form of punishment. Dvorak, 276 Ill. App. 3d at 551, 658 N.E.2d at 875-76. The second district noted that its holding was similar to that in other license suspension cases, such as those involving a physician's license, and was supported by the nearly unanimous decisions of other states holding that summary suspension of a driver's license did not bar further prosecution for DUI. Dvorak, 276 Ill. App. 3d at 551-52, 658 N.E.2d at 876.

Dvorak was decided prior to the supreme court's decision in In re P.S., (1996), 169 Ill. 2d 260, 661 N.E.2d 329, 214 Ill. Dec. 475. In P.S. the supreme court held that the forfeiture of a defendant's car under the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1671 et seq.)) prevented defendant's further prosecution on the charge of unlawful possession of a controlled substance, cocaine. Ill. Rev. Stat. 1991, ch. 56 1/2, par 1402(c). The supreme court upheld forfeitures, however, in cases where the forfeitures and criminal charges each required proof of an element which the other did not.

The question in P.S. was "whether the forfeiture of Kimery's automobile served, in part, to punish him. If so, the forfeiture will be considered punishment for purposes of the double jeopardy clause." P.S., (1996), 169 Ill. 2d at 282, N.E.2d at . In response to the State's argument that the proportionality test of Halper should be applied to determine the fairness of the forfeiture, the supreme court said "Austin appears to have specifically rejected a case-by-case approach, opting for a more categorical approach to forfeitures of conveyances used to facilitate the transportation, etc., of contraband." P.S., Nos. 78910, 78944 cons., slip op. at 20 (January 18, 1996), Ill. 2d at , N.E.2d at . There is no reason to believe, however, that the categorical approach which Austin and P.S. applied to forfeiture statutes would be applied to license suspensions and revocations. Forfeiture statutes have historically been understood as punishment (P.S., Nos. 78910, 78944 cons., slip op. at 16 (January 18, 1996), Ill. 2d at , N.E.2d at ), while the summary suspension of drivers' licenses has been viewed as having a purpose of making the highways safer ( Esposito, 121 Ill. 2d at 501, 521 N.E.2d at 877; Wegielnik, 152 Ill. 2d at 425, 605 N.E.2d at 490).

The argument that summary suspension is punitive relies on statutory public policy language that summary suspension is appropriate "to provide a deterrent to such practice and to remove problem drivers from the highway." (Emphasis added.) 625 ILCS 5/6-206.1 (West 1994). Retribution and deterrence are said to be the traditional aims of punishment. "'Retribution and deterrence are not legitimate nonpunitive governmental objectives.'" Halper, 490 U.S. at 448, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902, quoting Bell v. Wolfish, 441 U.S. 520, 539 n.20, 60 L. Ed. 2d 447, 468 n.20, 99 S. Ct. 1861, 1874 n.20 (1979). Halper involved a civil penalty which would deter crime in the same manner as would a fine. The summary suspension statute, however, does not attempt to deter conduct in the way that a fine or prison sentence deters individuals from committing crime. The summary suspension statute attempts to deter conduct like any other licensing statute does--by keeping unqualified individuals from situations where they have a special potential to harm members of the public. The summary suspension statute does not produce any financial gain for government, either in the form of a fine or reimbursement of expenses.

We conclude that Dvorak remains good law following the supreme court's decision in P.S. The summary suspension of a driver's license is fairly characterized as a remedial civil sanction rather than as punishment for double jeopardy purposes. Dvorak, 276 Ill. App. 3d at 551, 658 N.E.2d at 876.

Our view that a less rigorous test than that set out in P.S. could be applied in cases other than forfeiture cases is supported by a case subsequent to P.S. In that case, the supreme court refused to allow the imposition of a $54,385 tax plus penalties and interest under the Cannabis and Controlled Substances Tax Act (Ill. Rev. Stat. 1989, ch. 120, par. 2151 et seq.), where the party from whom the tax was sought had already been convicted and sentenced on criminal charges involving the same contraband. Wilson v. Department of Revenue, (1996), 169 Ill. 2d 306, 662 N.E.2d 415, 214 Ill. Dec. 849. The court noted that tax statutes serve a purpose quite different from civil penalties, and that employing the method used in Halper would not work in determining whether a tax statute should be characterized as punishment for double jeopardy purposes. Wilson, No. 77708, slip op. at 6 (February 15, 1996), Ill. 2d at , N.E.2d at . The court did, however, differentiate a drug tax from standard tax assessments, concluding a drug tax is a form of punishment, designed not for revenue but to quash the drug trade. Wilson, No. 77708, slip op. at 9 (February 15, 1996), Ill. 2d at , N.E.2d at .

Accordingly, the decision of the trial court denying defendant's motion to dismiss on double ...


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