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07/26/96 PEOPLE STATE ILLINOIS v. ALVIN RATLIFF

July 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ALVIN RATLIFF, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County, No. 94--CF--171. Honorable Melvin E. Dunn, Judge, Presiding.

Rehearing Denied September 3, 1996. Released for Publication September 3, 1996.

The Honorable Justice Hutchinson delivered the opinion of the court. McLAREN, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Hutchinson

The Honorable Justice HUTCHINSON delivered the opinion of the court:

The State appeals the trial court's order granting the motion of defendant, Alvin Ratliff, to dismiss two of the four counts against him on the basis of double jeopardy. Defendant was charged by a four-count information of unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1994)), battery (720 ILCS 5/12--3 (West 1994)), possession of a firearm without a firearm owner's identification card (430 ILCS 65/2 (West 1994)), and aggravated assault (720 ILCS 5/12--2(a)(1) (West 1994)). The trial court dismissed counts I (unlawful possession of a weapon by a felon) and III (possession of a firearm without a firearm owner's identification card) because the seizure and impoundment of defendant's automobile under a City of Aurora (Aurora) ordinance was premised upon the same factual transaction. The State filed this appeal pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)).

The State contends the trial court erred in dismissing counts I and III on double jeopardy grounds because the seizure and impoundment of defendant's automobile, as well as defendant's payment of fines and expenses, were remedial in nature. Defendant counters that his payment of a fine and expenses pursuant to the Aurora ordinance constituted a punishment for double jeopardy purposes and therefore any subsequent prosecution would be improper. We reverse.

On January 30, 1994, police officers answered a domestic violence call. After conducting a brief investigation, the officers found defendant in a parking lot. Defendant had driven to Aurora to visit his wife, who was living at a Marywood address. An alleged argument between defendant and his wife had prompted the domestic violence call. Defendant allegedly pushed and threatened his wife. The officers arrested defendant. A search of defendant revealed live ammunition. A search of defendant's automobile produced a revolver.

Aurora filed an administrative action against defendant under section 29--48 of the Code of Ordinances of the City of Aurora (Code) (Code of Ordinances of the City of Aurora § 29--48 (eff. December 21, 1993)). Section 29--48 is entitled "Vehicle seizure and impoundment" and provides in pertinent part:

"A motor vehicle, operated with the knowledge of the owner of record, that is used in violation of Sections 29--43, 29--45, 29--46, 29--47, 29--101 or 29--102 of this Code or in violation of paragraphs 9--1, 9--2, 9--3.3, 11--6, 11--14, 11--15, 11--15.1, 11--16, 11--17, 11--18, 11--18.1, 11--19, 11--19.1, 11--19.2, 12--2, 12--4, 12--4.2, 12--4.3, 12--4.6, 12--4.7, 20--1, 20--1.1, 20--2, 24--1, 24--1.2, 24--2.1, 24--3.1, 24--3.3 or 33A--2 of the Criminal Code of 1961 (720 ILCS 5/9--1, 5/9--2, 5/9--3.3, 5/11--6, 5/11--14, 5/11--15, 5/11--15.1, 5/11--16, 5/11--17, 5/11--18, 5/11--18.1, 5/11--19, 5/11--19.1, 5/11--19.2, 5/12--2, 5/12--4, 5/12--4.2, 5/12--4.3, 5/12--4.6, 5/12--4.7, 5/20--1, 5/20--1.1, 5/20--2, 5/24--1, 5/24--1.2, 5/24--2.1, 5/24--3.1, 5/24--3.3 or [sic] 5/33A--2) or in violation of paragraphs 704, 705, 705.1, 705.2, or 708 of the Cannabis Control Act (720 ILCS 550c/1--550/5.2 [sic]) or in violation of paragraphs 1401, 1401.1[,] or 1402 of the Controlled Substances Act (720 ILCS 570/401--570/402 [sic]) shall be subject to seizure and impoundment under this section. The owner of record of such vehicle shall be liable to the city for a penalty of five hundred dollars ($500.00) in addition to fees for the towing and storage of the vehicle.

(1) *** Said vehicle shall be impounded pending the completion of the hearings provided for in subsections (2) and (3) herein, unless the owner of the vehicle posts with the city a cash bond in the amount of five hundred dollars ($500.00) plus fees for the towing and storage of the vehicle.

***

(3) *** If, after the hearing, the hearing officer determines by a preponderance of the evidence that the vehicle, operated with the knowledge of the owner, was used in the commission of any of the violations set forth in this commission of any of the violations set forth in this section, the hearing officer shall enter an order requiring the vehicle to continue to be impounded until the owner pays a penalty of five hundred dollars ($500.00 [sic]) plus fees for the towing and storage of the vehicle. The penalty and fees shall be a debt due and owing the city. However, if a cash bond has been posted the bond shall be applied to the penalty. If the hearing officer determines that the vehicle was not knowingly used in such violation, he or she shall order the return of the vehicle or cash bond.

(4) Any motor vehicle that is not reclaimed within thirty (30) days after the expiration of the time during which the owner of record may seek administrative review of the city's action under this section, or the time at which a final judgment is rendered in favor of the city, may be disposed of as an unclaimed vehicle as provided by law. As used in this section, the 'owner of record' of a vehicle means the record title holder." Code of Ordinances of the City of Aurora § 29--48 (eff. December 21, 1993).

The hearing officer found that defendant "was arrested because of his actions in the domestic argument. A search of his person located bullets while a search of his car produced a gun. Therefore, the preponderance of the evidence demonstrates that section 29.48 [sic] of the *** Code *** was violated." ...


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