The opinion of the court was delivered by: Justice Lytton delivered the opinion of the court
IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 1998
Honorable Clark E. Erickson Judge, Presiding
Appeal from the Circuit Court ILLINOIS, of the 21st Judicial Circuit No. 96--CF--561
Defendant Ronnie E. Jones, Jr. was indicted on a charge of aggravated battery of a police officer and charged by traffic citations with illegal sound amplification, reckless driving and disobeying a police officer. A jury convicted him on all charges. Defendant was sentenced to five years incarceration for aggravated battery and assessed court costs on all other convictions. On appeal, defendant challenges: (1) the constitutionality of the sound amplification statute (625 ILCS 5/12--611 (West 1996)), (2) the sentence imposed for aggravated battery, and (3) the calculation of fees and costs assessed in relation to his prosecution. We affirm in part, reverse in part, and remand for the entry of a judgment reflecting the correct amount of fees and costs.
In the early morning hours of October 17, 1996, Sergeant Barry Thomas stopped defendant because of the excessive volume emitting from defendant's car radio. Sergeant Thomas approached the driver's side of defendant's car, shined his flashlight in the window and asked to see defendant's license and insurance card. Refusing to comply, defendant stated that he had not been speeding and asked why the officer had stopped him. Sergeant Thomas stated he would explain later and reached for the handle on the car door. Finding the door locked, the officer reached through defendant's car window, which was down approximately six inches, to unlock the door. When the officer unlocked the door, defendant slapped his hand away and relocked the door. In an effort to divert defendant's attention from the lock, the officer then hit defendant in the chest with the flashlight.
At this point, a backup patrol car arrived, and Sergeant Thomas called out for assistance as he attempted to unlock the door again. Suddenly, defendant accelerated and drove off with Sergeant Thomas' right arm still inside the car. The officer clamped his right arm down on the glass, lifted his feet and yelled to defendant to stop. The backup officers followed in pursuit and testified at trial that despite the fact that Sergeant Thomas was hanging on to the car, defendant reached speeds in excess of 70 miles per hour and traveled one mile and a half before finally pulling over. Sergeant Thomas sustained bruises on the inside of his upper right arm.
Defendant testified that he had poor eyesight and was blinded by the flashing lights from Sergeant Thomas' police car and from the flashlight. He testified that he did not know it was a real police officer who pulled him over, that he drove away in fear after being hit in the chest with the flashlight and that he continued to drive at high speeds for more than a mile because he was afraid the person hanging onto his car would hurt him. The jury convicted defendant on all four counts.
At sentencing, the State introduced evidence of defendant's prior conviction for aggravated battery of a peace officer. Defendant's intoxication at the time of the prior offense was a mitigating factor, and he received a sentence of probation. Testifying on defendant's behalf, an employer stated that defendant was reliable and trustworthy. His family and friends testified that he was loving, patient and affectionate. In addition, defendant addressed the court and expressed remorse for the incident, as well as his thankfulness that no one was seriously injured.
The court sentenced defendant to five years incarceration for aggravated battery, and it entered judgment for costs for the sound amplification, disobeying a police officer and reckless driving violations.
A. CONSTITUTIONALITY OF THE SOUND AMPLIFICATION STATUTE
Section 12--611 of the Illinois Vehicle Code provides in pertinent part that: "No driver of any motor vehicle within this State shall operate or permit operation of any sound amplification system which can be heard outside the vehicle from 75 or more feet when the vehicle is being operated upon a highway, unless such system is being operated to request assistance or warn of a hazardous situation. This Section does not apply to authorized emergency vehicles or vehicles engaged in advertising." (Emphasis added.) 625 ILCS 5/12--611 (West 1996).
On appeal, defendant contends that the statute is unconstitutional because it is content-based and is overbroad in violation of the first amendment of the United States Constitution (U.S. Const., amend. I) and denies equal protection in violation of the fourteenth amendment (U.S. Const., amend. XIV).
Legislative enactments are presumed to be constitutional (People v. Warren, 173 Ill. 2d 348, 355, 671 N.E.2d 700, 704 (1996)) and all reasonable doubts are to be resolved in favor of upholding legislation (People v. Holt, 271 Ill. App. 3d 1016, 1026, 649 N.E.2d 571, 579-80 (1995)). When a court decides whether a statute violates the first amendment, it must consider that each medium of communication creates a unique set of first amendment problems that must be assessed in light of the "differing natures, values, abuses and dangers" of that medium. Kovacs v. Cooper, 336 U.S. 77, 97, 93 L. Ed. 513, 528, 69 S. Ct. 448, ___ (1949) (Jackson, J., Concurring).
Music is a form of expression and communication protected by the first amendment. Ward v. Rock Against Racism, 491 U.S. 781, 790, 105 L. Ed. 2d 661, 674, 109 S. Ct. 2746, ___ (1989). However, sound amplification in streets and public places is subject to reasonable regulation. Kovacs, 336 U.S. at 89, 93 L. Ed. at 523, 69 S. Ct. at ___.
In determining whether a restriction on expression passes constitutional muster, courts apply a two-tiered system of review. An intermediate level of judicial scrutiny is used where the regulation is unrelated to content. Turner Broadcasting, Inc. v. Federal Communications Commission, 512 U.S. 622, ___, 129 L. Ed. 2d 497, 517, 114 S. Ct. 2445, 2459 (1994). On the other hand, where a regulation suppresses, disadvantages or imposes differential burdens upon speech because of its content, "the most exacting scrutiny" must be applied. Turner Broadcasting, 512 U.S. at ___, 129 L. Ed. 2d at 517, 114 S. Ct. at 2459. Such content-based discrimination is "presumptively impermissible" (City of Ladue v. Gilleo, 512 U.S. ___, ___, 129 L. Ed. 2d 36, 50, 114 S. Ct. 2038, ___ (1994) (O'Connor, J., Concurring)), and will be upheld only if it is narrowly tailored to serve a compelling state interest (Widmar v. Vincent, 454 U.S. 263, 269-70, ...