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People v. Braman

February 21, 2002

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
KEVIN BRAMAN, DEFENDANT-APPELLANT



Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois No. 98-CF-280 Honorable Brian Nemenoff, Judge Presiding

The opinion of the court was delivered by: Justice Holdridge

UNPUBLISHED

Defendant, Kevin Braman, was charged by indictment with the Class 4 felony of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1)(West 1998)(Vehicle Code). In the indictment, it was alleged that the defendant had two prior DUI violations. Thereafter, a jury found him guilty of the offense tried; however, the fact of the defendant's two prior DUI convictions was not submitted to the jury. At the sentencing hearing, the State offered the defendant's two prior DUI violations into evidence, which under section 501(d)(1)(A) of the Vehicle Code, enhanced the offense from a Class A misdemeanor to a Class 4 felony (625 ILCS 5/11-501(d)(1)(A)). The court then sentenced the defendant to two years of probation and six months of work release.

The defendant appeals, arguing that (1) his conviction for felony DUI must be reduced to misdemeanor DUI because the State presented no evidence to the jury that he had two prior DUI violations, and (2) section 501(d)(1)(A) of the Code is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We affirm.

The indictment against the defendant alleged that on January 14, 1998, the defendant drove a vehicle while he had a blood alcohol concentration of .08 or greater, and he had at least two prior DUI violations. By alleging the defendant had at least two prior DUI violations, the State placed the defendant on notice that, if convicted, he was eligible to be sentenced as a Class 4 felon for the charged offense. 625 ILCS 5/11-501 (d)(1)(A)(West 1998).

At trial, the State presented evidence to the jury that at approximately 7:40 p.m. on January 14, 1998, an East Peoria police officer was dispatched to the scene of a car accident involving a Honda and a Ford Bronco. The officer testified that he observed the defendant sitting in the driver's seat of the Bronco. When the officer approached the defendant, he noticed that the defendant's eyes were red, his speech slurred, and he smelled of alcohol.

Further testimony at trial established that the defendant was transported by ambulance to a nearby hospital. There, a nurse conducted two blood draws on the defendant, one authorized by the officer and the other for the defendant's medical evaluation. The draws yielded blood-alcohol concentrations of .169 and .18 respectively.

The driver of the Honda testified that he was driving on Meadows Avenue in East Peoria at approximately 7:30 p.m. on January 14, 1998, when a car traveling the opposite direction crossed over the center line and collided with his car. The driver further testified that he was driving in the correct lane and had his headlights on at the time.

A passenger in the defendant's car testified that she and the defendant had been drinking alcohol in a bar on January 14, 1998. At approximately 7:30 p.m., they left the bar in the defendant's Bronco. The defendant was driving. She next recalled awakening inside a police car at the accident scene. She testified that she spoke to the defendant a few days following the accident, and he explained that a car driving in the opposite direction with its headlights off had crossed over the center line and collided with his car.

After the close of evidence and arguments, the trial court instructed the jury that it needed to find the following propositions beyond a reasonable doubt to sustain the charge of driving under the influence of alcohol: (1) that the defendant drove a vehicle; and (2) that at the time the defendant drove the vehicle, the alcohol concentration in his blood was .08 per cent or greater. The jury returned a guilty verdict.

At the sentencing hearing, the State offered defendant's two prior DUI violations into evidence for the purpose of enhancing the offense from a Class A misdemeanor to a Class 4 felony. The trial court then sentenced defendant to two years probation and six months of work release. The defendant appealed his conviction and sentence to this court.

The defendant contends on appeal that his conviction for aggravated DUI should be reduced from a felony to a misdemeanor. The defendant argues that the State had to present evidence to the jury that he had two prior DUI violations, and that the State failed to do so. He argues that the fact that he had two prior DUI violations is an element of the charged offense. Thus, he asks this court to reduce his conviction for aggravated DUI to misdemeanor DUI and remand the cause for resentencing within the range for a Class A misdemeanor.

Section 11-501 of the Illinois Vehicle Code provides, in ...


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