An indictment charging defendant with a felony of driving while his license was suspended at a time when his license was revoked or suspended was improperly modified to a misdemeanor based on the trial court’s acceptance of defendant’s argument that a statutory summary suspension had been entered when his license had already been revoked, thereby rendering the suspension a nullity that required the dismissal of the felony charge, since the revocation of a driver’s license does not preclude the future revocation or suspension of the same license; therefore, defendant’s conviction for a misdemeanor was reversed and the cause was remanded for further proceedings.
Appeal from the Circuit Court of Kane County, No. 12-CF-169; the Hon. Timothy Q. Sheldon, Judge, presiding.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M. Bauer and Scott Jacobson, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Michael J. Pelletier, Thomas A. Lilien, and Jamie L. Montgomery, all of State Appellate Defender’s Office, of Elgin, for appellee.
Justices Jorgensen and Hudson concurred in the judgment and opinion.
¶1 Defendant, George Smith, was charged by indictment with, inter alia, driving while his license was suspended (DWLS) (625 ILCS 5/6-303(a) (West 2012)). That offense was charged as a Class 2 felony pursuant to section 6-303(d-5) of the Illinois Vehicle Code (Code) (625 ILCS 5/6-303(d-5) (West 2012)). The State appeals from an order of the circuit court of Kane County modifying the indictment by reducing the charge to a misdemeanor. We reverse and remand.
¶2 The indictment originally alleged that on or about January 25, 2012, "defendant operated a motor vehicle upon a road in North Aurora, Illinois at a time when the defendant's driver's license was suspended or revoked for a violation of Illinois Compiled Statutes Chapter 625, Act 5, Section 11-501 and after having fourteen or more prior violations for the offense of driving while license was revoked or suspended." The State was later permitted to amend the indictment to allege that defendant was driving while a statutory summary suspension of his license (see 625 ILCS 5/11-501.1 (West 2012)) was in effect. Defendant moved to dismiss the charge. At the hearing on the motion, defendant submitted the abstract of his driving record to show that the statutory summary suspension had been entered when his driver's license had already been revoked. Relying on People v. Heritsch, 2012 IL App (2d) 090719, defendant argued that the statutory summary suspension was therefore a nullity. Defendant further argued that his license had been revoked for a reason other than those enumerated in section 6-303(d-5) as prerequisites for enhancing the charged offense to a felony. The trial court agreed, but instead of dismissing the charge, the trial court ordered the indictment amended so as to reduce the charged offense to a misdemeanor.
¶3 Section 6-303(a) of the Code (625 ILCS 5/6-303(a) (West 2012)) provides, in pertinent part, that "any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person's driver's license, permit or privilege to do so or the privilege to obtain a driver's license or permit is revoked or suspended as provided by this Code or the law of another state, except as may be specifically allowed by a judicial driving permit issued prior to January 1, 2009, monitoring device driving permit, family financial responsibility driving permit, probationary license to drive, or a restricted driving permit issued pursuant to this Code or under the law of another state, shall be guilty of a Class A misdemeanor." At the time of the alleged offense in this case, subsections (d-2), (d-3), (d-4), and (d-5) provided for escalating penalties, based on the number of prior convictions, "if the revocation or suspension was for a violation of Section 11-401 or 11-501 of this Code, or a similar out-of-state offense, or a similar provision of a local ordinance, or a statutory summary suspension or revocation under Section 11-501.1 of this Code." 625 ILCS 5/6-303(d-2), (d-3), (d-4), (d-5) (West 2012). Section 11-401 pertains to the duties of a motorist involved in an accident involving death or personal injuries, and section 11-501 creates the offense of driving under the influence of alcohol or drugs (DUI). 625 ILCS 5/11-401, 11-501 (West 2012). Under section 6-205(a) of the Code (625 ILCS 5/6-205(a) (West 2012)), the Secretary of State (Secretary) "shall immediately revoke the license, permit, or driving privileges of any driver upon receiving a report of the driver's conviction" of a violation of section 11-401 or 11-501. Section 11-501.1, the so-called "implied consent law, " provides that a motorist operating a vehicle on a public highway in Illinois is deemed to have consented that, if arrested for DUI, he or she will submit to chemical testing to determine his or her blood alcohol level. If the motorist refuses to undergo testing, or submits to testing that reveals a blood alcohol level of 0.08 or more, his or her driving privileges will be summarily suspended. Under section 6-303(d-5), a driver whose license is revoked for one of the specified reasons is guilty of a Class 2 felony, and is ineligible for probation or conditional discharge, if he or she has 14 or more prior convictions of driving with a suspended or revoked license. 625 ILCS 5/6-303(d-5) (West 2012).
¶4 In reducing the DWLS charge in this case from a Class 2 felony to a Class A misdemeanor, the trial court relied on the decision of a divided panel of this court in Heritsch. In Heritsch, the defendant's conviction of driving while his license was revoked (DWLR) was enhanced to a Class 2 felony under section 6-303(d-5). The offense occurred in 2008. The defendant's license had been revoked for the first time in 1991, but not for any of the reasons that result in an enhanced sentence under section 6-303(d-5). Rather, it had been revoked because the defendant had used a motor vehicle to commit a drug-related felony. The defendant did not obtain a new driver's license after the revocation. However, the abstract of the defendant's driving record showed that, in 2001, the defendant had violated section 11-501 of the Code–i.e., he had committed the offense of DUI–and that the Secretary had revoked his license for that reason. Because the 1991 revocation could not be the basis for an enhanced sentence under section 6-303(d-5), the validity of the defendant's felony conviction depended on whether he was eligible for an enhanced sentence on the basis that his license had been revoked in 2001 for DUI. The Heritsch majority concluded that he was not eligible for enhanced sentencing on that basis. The majority reasoned, in essence, that, after the defendant's license had been revoked in 1991, there was no license that could be revoked when the defendant committed DUI in 2001. Therefore, according to the majority, "the Secretary's 2001 formal administrative sanction of revocation had no effect." Heritsch, 2012 IL App (2d) 090719, ¶9. The Heritsch majority's reasoning would apply with equal force to the statutory summary suspension of a previously revoked driver's license.
¶5 Here, the State raises both procedural and substantive challenges to the trial court's ruling. According to the State, the ruling was procedurally infirm because the trial court: (1) had no authority to modify the charge and (2) should have considered only whether the indictment, on its face, properly charged a felony DWLS. With respect to the latter point, the State insists that the trial court erred by considering whether the abstract of defendant's driving record refuted the allegations. Substantively, the State argues that, even if defendant's license had been revoked prior to the statutory summary suspension of the license, the revocation did not vitiate the statutory summary suspension. In other words, the State challenges the proposition that a motorist's driving privileges, having once been revoked, cannot thereafter (unless restored through the issuance of a permit or a new license, or in some other manner) be suspended or "re-revoked." The State recognizes that this argument is contrary to Heritsch. The State contends, however, that Heritsch was decided incorrectly and should be abrogated.
¶6 As discussed below, we agree with the State's substantive argument. In our view, when a motorist's driving privileges are subject to statutory summary suspension under the implied consent law, the suspension is valid notwithstanding any prior revocation or suspension of the motorist's driving privileges. Such a suspension may therefore be the basis for an enhanced penalty for violating section 6-303(a) while the suspension is in effect. Before we explain this conclusion, we note that a narrower decision on procedural grounds would be inappropriate under the circumstances of this case. Were we to reverse the trial court's decision solely on the basis that the indictment was valid on its face or that the trial court had no power to modify the indictment, there would be a significant likelihood that the substantive issue would arise on remand. Thus, regardless of our views on the procedural issue, it would be appropriate to consider the State's substantive challenge to the trial court's ruling. Moreover, because we agree with the State's substantive challenge, the procedural issues are purely academic, so we need not address them.
¶7 We further note that, although the trial court was required to follow Heritsch (seeState Farm Mutual Auto Insurance Co. v. McFadden, 2012 IL App (2d) 120272, ¶9), we are ...