Appeal from the Circuit Court of OF De Kalb County. Honorable (Jesse White, Illinois Secretary of State, ) Melissa S. Barnhart, Contemnor-Appellant). ) Judge, Presiding. Nos. 09-DT-408 09-TR-14643 09-TR-14644
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Bowman concurred in the judgment and opinion.
Jesse White, Illinois Secretary of State (Secretary), appeals from the order of the circuit court holding him in indirect civil contempt of court for failing to issue a monitoring device driving permit (MDDP) to Amy Damkroger following her second arrest in a month for driving under the influence (DUI). For the reasons that follow, we reverse.
The facts are undisputed. On June 21, 2009, Damkroger was arrested for DUI in case number 09- DT-361. According to the arresting officer's report, Damkroger submitted to a Breathalyzer test, which registered a 0.144 blood alcohol concentration (BAC). The report further recited that the officer informed Damkroger at the scene that, as a result of her BAC, her driver's license would be suspended effective August 6, 2009, the forty-sixth day following notice of the suspension. On July 2, 2009, the Secretary mailed Damkroger a notice "confirm[ing] that [her] Illinois driver's license or driving permit and [her] privilege to operate a motor vehicle or to obtain a driver's license in Illinois are suspended effective [August 6, 2009]."
On July 17, less than 30 days after her first DUI arrest, Damkroger was arrested a second time for DUI, in case number 09-DT-408. The report for this arrest states that Damkroger submitted to a Breathalyzer, registered a BAC of 0.118, and consequently was informed that her driver's license would be suspended effective September 1.
On July 24, Damkroger filed a "petition *** to rescind the Statutory Summary Suspension heretofore issued in [case number 09-DT-408]." On August 14, the trial court denied the petition to rescind.
On October 1, Damkroger filed a motion in case number 09-DT-408 for issuance of a MDDP. On October 9, the trial court issued an order directing the Secretary to issue Damkroger a MDDP. The order recited the court's finding that Damkroger was "a first offender as defined in [section 11-500 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-500 (West 2008))]." Section 11-500 defines a "first offender" as, inter alia, "any person who has not had a driver's license suspension for violating Section 11-501.1 [(625 ILCS 5/11-501.1 (West 2008))] within 5 years prior to the date of the current offense." 625 ILCS 5/11-500 (West 2008). Section 6-206.1(a)(1) of the Code (625 ILCS 5/6-206.1(a)(1) (West 2008)) provides that a "first offender" is entitled to a MDDP unless, inter alia, the "[t]he offender's driver's license is otherwise invalid."
On October 19, the Secretary notified the court that he had no authority to issue Damkroger a MDDP, because she was not a "first offender" as defined in section 11-500 of the Code. On November 12, Damkroger filed a petition for a rule to show cause directing the Secretary to state why he should not be held in contempt of court for not issuing the MDDP. Damkroger argued that, because the suspension in case number 09-DT-361 was not yet in effect when she committed the offense charged in case number 09-DT-408, she did not have "a driver's license suspension *** within 5 years prior to the date of the current offense" (625 ILCS 5/11-500 (West 2008)). The trial court issued the rule and directed the Secretary to respond.
In his response, the Secretary noted that a statutory summary suspension, such as was imposed in case number 09-DT-361, does not take effect until 46 days after notice of the suspension. See 625 ILCS 5/11-501.1(g) (West 2008). The Secretary argued that Damkroger's construction of section 11-500 would mean, absurdly, that a person could commit serial DUIs yet remain a "first offender" as long as the suspension for the first DUI had not yet become effective. The Secretary urged the trial court to follow People v. Crawford, 196 Ill. App. 3d 26 (1990), where the appellate court, applying an earlier version of section 11-500, held that the defendant was not a "first offender" for purposes of receiving a judicial driving permit (the predecessor of the MDDP) following his second DUI within two hours. The Secretary noted that, in Crawford, the statutory suspension for the first arrest was not yet in effect when the second arrest occurred, yet the Crawford court held that the defendant was not a "first offender." See Crawford, 196 Ill. App. 3d at 29-30. Under Crawford's logic, the Secretary proposed, Damkroger clearly was not a "first offender" at the time of her offense in case number 09-DT-408. The Secretary urged the court not to hold him in contempt, because he had no authority to issue the MDDP.
The matter was heard on December 15, 2009. Following the arguments of the parties, the trial court adopted Damkroger's reasoning that she was a "first offender" when she was arrested in case number 09-DT- 408, because the statutory suspension in case number 09-DT-361 was not then in effect. The court found Crawford inapposite because "since [Crawford] we've had the new amendments which have defined what a first offender is." Accordingly, the court found the Secretary in indirect civil contempt for not complying with its order to issue a MDDP to Damkroger. The court gave the Secretary time to purge the contempt and it set the matter for status on January 15, 2010.
On January 15, 2010, the Secretary reaffirmed that he had no power to issue the MDDP. The court imposed a monetary sanction but stayed it pending appeal. The ...