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05/17/96 PEOPLE STATE ILLINOIS v. MITCHELL S.

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT


May 17, 1996

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MITCHELL S. LOPEMAN, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 95-TR-7020. Honorable C. Brett Bode, Judge, Presiding.

Released for Publication June 20, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice Lytton delivered the opinion of the court: Michela and Slater, JJ., concur.

The opinion of the court was delivered by: Lytton

The Honorable Justice LYTTON delivered the opinion of the court:

Defendant, Mitchell S. Lopeman, was arrested for driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 1994)) on March 9, 1995. The deputy sheriff asked defendant to submit to a breath test to determine the level of alcohol in his body; defendant refused to consent. Due to his refusal, defendant was served with a notice of statutory summary suspension of his driver's license. See 625 ILCS 5/11-501.1 (West 1994). The arresting officer filed a report indicating that he had found defendant's car in a ditch and that defendant had refused to submit to the breath test. The report also stated that defendant had a strong odor of alcohol on his breath, slurred his speech, exhibited instability in walking and standing, and "failed all field sobriety tests given."

Pursuant to the summary suspension statute, defendant's driver's license was suspended for six months beginning April 24, 1995. On May 11, 1995, defendant filed a motion to dismiss the DUI charge, alleging that the suspension of his license constituted former jeopardy and that a later criminal prosecution would violate the double jeopardy clauses of the United States and Illinois constitutions. See U.S. Const., amend. V; Ill. Const. 1970, art. I, ยง 10. The trial court denied the motion to dismiss, and defendant appeals. We affirm and remand for further proceedings.

The double jeopardy clause is violated and one proceeding is barred only when three conditions are met: (1) the civil action constitutes "punishment" for purposes of double jeopardy, (2) the civil and criminal proceedings are based on the same offense, and (3) there are separate civil and criminal proceedings. In re P.S., 169 Ill. 2d 260, 272-73, 661 N.E.2d 329, 335-36 (1996).

The court in People v. Fasbinder, No. 4-95-0648, 1996 Ill. App. LEXIS 172, slip op. at 6 (4th Dist. March 27, 1996), recently rejected a similar double jeopardy argument regarding a DUI prosecution from a defendant whose driver's license had been summarily suspended. The Fasbinder court relied on the analysis in People v. Dvorak, 276 Ill. App. 3d 544, 658 N.E.2d 869, 213 Ill. Dec. 120 (1995) to upheld the validity of dual administrative and criminal proceedings.

The court in Dvorak noted that "'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 United States v. Halper, 490 U.S. 435, 448, 104 L. Ed. 2d 487, 501, 109 S. Ct. 1892, 1901 (1989). The court recognized that Illinois courts have upheld the suspension of a defendant's professional license even after a related criminal conviction. Dvorak, 276 Ill. App. 3d at 551, 658 N.E.2d at 876, citing Kaplan v. Department of Registration and Education, 46 Ill. App. 3d 968, 975, 361 N.E.2d 626, 631, 5 Ill. Dec. 303 (1977) (suspending a professional license and prosecuting a criminal charge does not constitute double jeopardy). Acknowledging that courts in many other states had upheld similar DUI-related proceedings, the court found that although the suspension of a driver's license "may have the incidental effect of deterring impaired drivers", the summary suspension statute 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 875-76. Thus, the separate administrative and criminal proceedings in this case did not violate defendant's double jeopardy rights.

Our supreme court recently found in In re P.S. that prosecuting a defendant for unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, Ch. 56 1/2, par. 1402(c)) after his car had been forfeited in a civil proceeding pursuant to the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1992)) was a violation of the double jeopardy clause. After reviewing this reasoning, the Fasbinder court held that the categorical approach used in P.S. would not apply in the context of summary license suspensions because civil forfeiture statutes are generally considered punitive, while the goal of the summary suspension statute is to increase highway safety by protecting the public from the special risk of harm presented by impaired drivers. Fasbinder, No. 4-95-0648, slip op. at 4-5. Further, the government receives a financial benefit from forfeiture provisions that it does not get from the summary suspension of a driver's license. Fasbinder, No. 4-95-0648, slip op. at 5.

After distinguishing P.S., the court in Fasbinder concluded that the reasoning in Dvorak was still applicable and upheld the constitutionality of dual administrative and criminal proceedings. Fasbinder, No. 4-95-0648, slip op. at 5; see also People v. Eck, No. 5-95-0327, 1996 Ill. App. LEXIS 316, slip op. at 7-8 (5th Dist. May 2, 1996) (adopting analysis of "punishment" for double jeopardy purposes used in Dvorak). We agree, and also find that the defendant's double jeopardy rights in this case were not violated because the "same-elements test" was not satisfied. Fasbinder, No. 4-95-0648, slip op. at 4, citing P.S., 169 Ill. 2d at 273, 661 N.E.2d at 336.

In the criminal prosecution, the state had to prove that defendant was acting under the influence of alcohol. 625 ILCS 5/11-501(a)(2). However, defendant's driver's license was suspended because he refused to submit to a test designed to determine the level of alcohol in his blood; whether he was acting under the influence of alcohol was not at issue in this case. 625 ILCS 5/11-501.1(d). Because the administrative summary suspension and criminal prosecution required proof of different elements, there was no violation of the double jeopardy clause. See P.S., 169 Ill. 2d at 277, 661 N.E.2d at 337.

For the reasons stated, the judgment of the circuit court of Peoria County is affirmed, and the case is remanded for further proceedings consistent with this order.

Affirmed and remanded for further proceedings.

MICHELA and SLATER, JJ., concur.

19960517

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