Appeal from the Circuit Court of Kendall County. No. 06-CF-458 Honorable Grant S. Wegner, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Birkett concurred in the judgment and opinion.
After a bench trial, defendant, Ronald L. Newton, was convicted of two counts of felony driving under the influence of alcohol (DUI) under section 11-501(d)(1)(A) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(d)(1)(A) (West 2006)) and two counts of DUI under section 11-501(c-1)(4) of the Code (625 ILCS 5/11-501(c-1)(4) (West 2006)). Because the charges were based on the same conduct, the trial court entered a conviction only on one count under section 11-501(c-1)(4). This offense was a Class 1 felony because defendant had four prior convictions of DUI. See 625 ILCS 5/11-501(c-1)(4) (West 2006). The trial court sentenced defendant to 71/2 years in prison and denied his motion to reconsider the sentence. Defendant timely appealed.
On appeal, defendant argues that his offense must be reduced from a Class 1 felony to a Class 4 felony, and the cause remanded for resentencing, because Public Act 94-116 (Pub. Act 94-116, §5 (eff. Jan. 1, 2006)), which created section 11-501(c-1)(4) and made his offense a Class 1 felony, is unconstitutional. Specifically, he contends, the act violates due process because other sections of the Code make a fifth DUI with aggravating factors only a Class 2 felony.
We affirm, because we hold that the sections of the Code that defendant contends make a fifth DUI a Class 2 felony apply only to a fourth DUI. Therefore, they coexist constitutionally with section 11-501(c-1)(4), and defendant was properly sentenced as a Class 1 felon.
Because this appeal raises questions of law, our review is de novo. People v. Maldonado (Maldonado I), 386 Ill. App. 3d 964, 968 (2008). As statutory construction disposes of this appeal, we examine the pertinent provisions of section 11-501 of the Code. 625 ILCS 5/11-501 (West 2006). (For convenience, we refer to section 11-501 as the "DUI statute.") We seek to ascertain and effectuate the legislature's intent. Maldonado I, 386 Ill. App. 3d at 968. We rely in part on section 6 of the Statute on Statutes:
"Two or more Acts which relate to [the] same subject matter and which are enacted by the same General Assembly shall be construed together in such a manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the Act last acted upon by the General Assembly is controlling to the extent of such conflict. ***
An irreconcilable conflict between 2 or more Acts which amend the same section of an Act exists only if the amendatory Acts make inconsistent changes in the section as it theretofore existed." 5 ILCS 70/6 (West 2006).
If two acts may be construed so that both may stand, we must do so. People ex rel. Dickey v. Southern Ry. Co., 17 Ill. 2d 550, 555 (1959). The legislature's intent controls over "surface inconsistencies" between two acts. Id. at 554.
We turn to the relevant provisions of the DUI statute and the acts that created them. Subsection (a) of the DUI statute sets out the elements of DUI (625 ILCS 5/11-501(a) (West 2006)). Subsection (b-2) states that, except as the DUI statute provides otherwise, a violation of subsection (a) is a Class A misdemeanor (625 ILCS 5/11-501(b-2) (West 2006)). Defendant was convicted under subsection (c-1)(4) of the DUI statute, which states, "A person who violates subsection (a) a fifth or subsequent time is guilty of a Class 1 felony and is not eligible for a sentence of probation or conditional discharge." 625 ILCS 5/11-501(c-1)(4) (West 2006). Subsection (c-1)(4) was created by the passage of Public Act 94-116, which was approved July 5, 2005, and took effect January 1, 2006. Pub. Act 94-116, §5 (eff. Jan. 1, 2006).
According to defendant, subsection (c-1)(4) makes any fifth DUI a Class 1 felony-yet, under three other subsections of the DUI statute in effect at the time of his offense, a fifth DUI with aggravating elements is only a Class 2 felony. These three subsections are subsection (c-1)(3) (625 ILCS 5/11-501(c-1)(3) (West 2006)); subsection (c-11) (625 ILCS 5/11-501(c-11) (West 2006)); and subsection (c-15) (625 ILCS 5/11-501(c-15) (West 2006)). Defendant cites the versions of these subsections appearing in Public Act 94-609, which was approved August 16, 2005 (Pub. Act 94-609, §5 (eff. Jan. 1, 2006)). Public Act 94-609 in turn carried these versions over from Public Act 94-329, which was approved July 26, 2005 (Pub. Act 94-329, §5 (eff. Jan. 1, 2006)). The three subsections, as set out in Public Act 94-329, make a "fourth or subsequent" DUI a Class 2 felony (Pub. Act 94-329 (eff. Jan. 1, 2006)). (We shall quote these subsections in full when we recount the pertinent history of the DUI statute.)
Defendant argues that, because these provisions make a Class 1 felony a lesser included offense of several Class 2 felonies, Public Act 94-116 violates due process. See People v. Christy, 139 Ill. 2d 172, 181 (1990). The State counters that the versions of subsections (c-1)(3), (c-11), and (c-15) that appear in the last two public acts do not reflect the intent of the legislature. For the reasons that follow, we agree with the State.