THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH HERITSCH, Defendant-Appellant.
No. 2-09-0719
Appellate Court of Illinois, Second District
June 28, 2012
2012 IL App (2d) 090719
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice McLaren concurred in the judgment and opinion. Justice Birkett dissented, with opinion.
Appeal from the Circuit Court of Winnebago County, No. 08-CF-4179; the Hon. Richard A. Lucas, Judge, presiding.
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Where defendant‘s driver‘s license was revoked in 1991 for his use of a car to commit a drug-related felony and he “never got his license back,” but his license was revoked again in 2001 because of a DUI, he was improperly convicted in 2008 of aggravated driving with a revoked license, since the statute provides for only one revocation of a driver‘s license, defendant‘s 1991 revocation was not based on a DUI violation, he was only guilty of driving with a revoked license, and the 2001 revocation had no effect where defendant had not been issued a new license; therefore, the cause was remanded for resentencing on the reduced conviction of driving with a revoked license.
Judgment Affirmed as modified; cause remanded.
Thomas A. Lilien and Darren E. Miller, both of State Appellate Defender‘s Office, of Elgin, for appellant.
Joseph P. Bruscato, State‘s Attorney, of Rockford (Lawrence M. Bauer and Barry W. Jacobs, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
OPINION
¶ 1 After a stipulated bench trial, defendant, Kenneth Heritsch, was convicted of aggravated driving with a revoked or suspended license (DWLR) (
¶ 2 The indictment against defendant alleged that, on October 18, 2008, he drove on a highway while his license was revoked (
“Any person convicted of a fifteenth or subsequent violation of this Section is guilty of a Class 2 felony, and is not eligible for probation or conditional discharge, 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 under Section 11-501.1 of this Code.”
625 ILCS 5/6-303(d-5) (West 2008).
¶ 3 At defendant‘s trial, the parties stipulated that a police officer would testify that, on October 18, 2008, he stopped defendant‘s car and defendant admitted that he was driving with a revoked license and did not produce proof of insurance. The trial court admitted a copy of defendant‘s driving abstract. Defendant argued that the abstract did not prove his guilt of aggravated DWLR, as it did not show that the revocation was for DUI; rather, it showed that his license had been revoked in 1991 for a controlled-substance offense and had never been reinstated. The trial court held that the issue was for sentencing, not the trial. It found defendant guilty of the two offenses.
¶ 4 At sentencing, the State argued in part that defendant‘s driving abstract showed that the revocation of his license had been for DUI. Defendant countered that the abstract reflected that, in 1991, his license was revoked because he had used a car to commit a drug-related felony and that, since then, he “never got his license back.” Defendant conceded that the abstract also reflected that, on October 11, 2001, his license was revoked because he had recently committed DUI. The basis for each listed revocation was section 6-205(a) of the Code, which, as pertinent here, reads:
“Except as provided in this Section, the Secretary of State shall immediately revoke the license, permit, or driving privileges of any driver upon receiving a report of the driver‘s conviction of ***:
***
2. Violation of Section 11-501 of this Code or a similar provision of a local ordinance relating to the offense of operating or being in physical control of a vehicle while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof;
3. Any felony under the laws of any State or the federal government in the commission of which a motor vehicle was used[.]”
625 ILCS 5/6-205(a)(2) ,(a)(3) (West 2008).
¶ 5 Defendant reasoned that, because his license had been revoked continuously since 1991, it could not have been “re-revoked” for the DUI 10 years later. Thus, the revocation in effect as of October 18, 2008, was not for DUI but for the drug offense, so that defendant was guilty only of Class A misdemeanor DWLR. The trial court, without explanation, rejected this argument, held that defendant was guilty of aggravated DWLR, and sentenced him to six years’ imprisonment. Defendant moved to reconsider the sentence, again
¶ 6 On appeal, defendant contends that the State proved only that he committed DWLR, not that he committed aggravated DWLR. Defendant relies on what he sees as the plain language of section 6-303(d-5) of the Code, as applied to the undisputed facts. He observes that, to obtain a conviction of aggravated DWLR as charged, the State had to prove that he had driven with a revoked license and that the revocation was for DUI. He notes that the evidence is undisputed that, as of October 18, 2008, his license had been revoked continuously since 1991 and that “the revocation” that made this so was based on a drug offense, not DUI. We agree with defendant.
¶ 7 The issue on appeal is primarily one of statutory construction, which raises questions of law that we review de novo. See In re Detention of Hardin, 238 Ill. 2d 33, 40 (2010). Our goal is to ascertain and effectuate the legislature‘s intent, which is best indicated by the language of the statute itself. Id. However, if a statute‘s language is unclear, we may resort to similar statutes or other sources to aid our inquiry. See People v. Masterson, 207 Ill. 2d 305, 329 (2003) (citing Mowen v. Holland, 336 Ill. App. 3d 368, 374 (2003)). One such source includes the maxim of in pari materia, under which two statutes, or two parts of one statute, concerning the same subject must be considered together to produce a ” ‘harmonious whole.’ ” People v. Rinehart, 2012 IL 111719, ¶ 26 (quoting Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992)).
¶ 8 Both parties agree that section 6-303(d-5) of the Code is not ambiguous, and we find no ambiguity. However, section 6-303(d-5) is silent as it pertains to multiple revocations. Therefore, we must look to other statutes in the Code to aid our inquiry. On October 18, 2008, defendant was cited for DWLR. The Code defines “revocation of driver‘s license” as “[t]he termination by formal action of the Secretary of a person‘s license or privilege to operate a motor vehicle on the public highways, which termination shall not be subject to renewal or restoration except that an application for a new license may be presented and acted upon by the Secretary after the expiration of at least one year after the date of revocation.”
¶ 9 Defendant‘s driving abstract reflects another revocation of the same license in 2001, based on his recent commission of DUI. However, a revoked driver‘s license remains revoked until a new license is issued. People v. Morrison, 149 Ill. App. 3d 282, 284 (1986). The Code does not provide any guidance or rules in circumstances, such as here, where the Secretary has imposed additional revocations of an individual‘s driver‘s license for additional offenses committed after the original revocation but where the driver has never applied for a new license or where the Secretary has never issued the driver a new license. Therefore, as applied to the facts of this case, the Secretary‘s 2001 formal administrative sanction of revocation had
¶ 10 Reading section 1-176 in conjunction with sections 6-205(a)(3) and 6-303(d-5) of the Code, the legislative intent becomes clear. Section 1-176 provides for only one revocation of an individual‘s driver‘s license. The reason for defendant‘s 1991 revocation was a drug offense, which triggered subsection (3) of section 6-205(a) of the Code, not subsection (2). Section 6-303(d-5) speaks of ”the revocation or suspension” (emphasis added) (
¶ 11 Our holding appears to place defendant in a better position than he would have been had his license not been revoked until 2001, after he committed DUI. However, we cannot escape the plain language and meaning of section 6-303(d-5), and, even if we could ignore the legislature‘s unambiguous command, it is far from clear that we could construe the statute liberally so as to reach a different conclusion. See People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 81 (2009) (stating that a cardinal rule of statutory construction prohibits courts from rewriting a statute and departing from its plain language by reading into it exceptions, limitations, or conditions not expressed by the legislature (citing In re Michelle J., 209 Ill. 2d 428, 437 (2004))). The State might have been in a better position had the legislature used inclusive language in drafting section 6-303(d-5) of the Code, e.g., “any revocation,” “if the violation was for,” or words to that effect, but it apparently declined to do so, and we decline to rewrite the statute or read beyond the statute‘s plain language. To the extent that the plain meaning of section 6-303(d-5) creates a result that seems unsatisfactory or anomalous, it is up to the legislature to correct that problem.
¶ 12 We note that the trial court ruled that the State needed to prove the enhancing factor not at trial, but only at sentencing. Despite the trial court‘s ruling, section 6-303(d-5) creates an essential element of a distinct offense, aggravated DWLR. Our resolution of this appeal, however, obviates the need to address the propriety of that ruling. See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not render an advisory opinion when it cannot result in appropriate relief to the prevailing party). Accordingly, we affirm defendant‘s conviction of operating an uninsured motor vehicle; reduce his conviction of aggravated DWLR to simple DWLR; and remand the cause for sentencing on the reduced conviction and on the insurance conviction (see People v. Frantz, 150 Ill. App. 3d 296, 300 (1986)).
¶ 13 Affirmed as modified; cause remanded.
¶ 14 JUSTICE BIRKETT, dissenting.
¶ 15 I respectfully dissent. The initial filing by the Office of the State Appellate Defender in this case was a motion to withdraw as counsel on appeal pursuant to Anders v. California, 386 U.S. 738 (1967). In his memorandum of law in support of his motion to withdraw, counsel argued that it would be frivolous to argue on appeal that defendant was not revoked for DUI in 2001 because, when he was convicted of DUI, he was already revoked for a non-DUI
¶ 16 My colleagues point out that the trial court denied without comment defendant‘s oral motion to be sentenced for a misdemeanor. In fact, the trial court said that it had considered the motion. What my colleagues fail to acknowledge is that, in the trial court, defense counsel did not cite a single case for the proposition that someone whose privilege to drive has been revoked for one reason cannot have it rerevoked for another reason. He could not cite a case because there is no case anywhere in the country that supports this position. The indictment in this case alleged that defendant drove a motor vehicle upon a highway of this state “at a time when his driving privileges were revoked in violation of
¶ 17 The majority fails to distinguish cases cited in the State‘s brief, which I will address. Also, the majority claims that the Code does not provide any guidance or rules for a situation involving a person, like defendant, with multiple revocations who has never applied for or had issued to him a new license. I will demonstrate that just the opposite is true. Finally, the majority fails to apply the first rule of statutory construction, which is to give effect to the intent of the legislature. People v. Smith, 345 Ill. App. 3d 179, 184 (2004).
¶ 18 The majority appears to be stuck on the term “the revocation” in section 6-303(d-5) of the Code (
¶ 19 The majority acknowledges that the Illinois Secretary of State entered a mandatory order of revocation on his driving record on October 11, 2001 as a result of his August 22, 2001, conviction of DUI (
¶ 20 The State agrees with defendant‘s contention that the language of section 6-303(d-5) of the Code is unambiguous. Id. However, the State contends that the plain language of subsection (d-5) does not support defendant‘s view. The State, relying on People v. Kennedy, 372 Ill. App. 3d 306 (2007), argues that “the construction of section 6-303(d-5) urged by the defendant revises the plain language of the statute to include a limitation not expressed by the legislature and would defeat the legislative intent, which is to punish those who repeatedly violate section 6-303 more severely.”
¶ 21 Defendant‘s novel argument fails upon review of the overall statutory scheme and relevant case law. When interpreting a statute, our primary objective is to ascertain and give effect to the legislature‘s intent. People v. Zimmerman, 239 Ill. 2d 491, 497 (2010). Our first step is to examine the language of the statute, which is “the surest and most reliable indicator of legislative intent.” People v. Pullen, 192 Ill. 2d 36, 42 (2000). If a statute does not provide a definition indicating a contrary legislative intent, words in the statute are interpreted according to their plain and ordinary meanings. People v. Liberman, 228 Ill. App. 3d 639, 648 (1992). When the language of a statute is clear, it may not be revised to include exceptions, limitations, or conditions that were not expressed by the legislature. People v. Goins, 119 Ill. 2d 259, 265 (1988). The majority ignores our responsibility to construe the statute as a whole so that no part is rendered meaningless or superfluous. See People v. McClure, 218 Ill. 2d 375, 382 (2006). We are required to construe the statute by interpreting words and phrases in light of other relevant provisions in the statute. The majority completely fails to consider the law‘s purpose, the evils sought to be remedied, and the consequences that would result from construing the statute one way or another. Zimmerman, 239 Ill. 2d at 497. “[W]hen the literal construction of a statute would lead to consequences which the legislature could not have contemplated, the courts are not bound to that construction.” People v. Hanna, 207 Ill. 2d 486, 498 (2003).
¶ 22 “When determining the legislative intent of the criminal penalties associated with driving offenses as they relate to driver‘s license status, our courts have read the licensing provisions together with the penalty provisions.” People v. Rosenbalm, 2011 IL App (2d) 100243, ¶ 8; see People v. Sass, 144 Ill. App. 3d 163, 169 (1986); People v. Manikas, 106 Ill. App. 2d 315, 319-20 (1969). Where a statute is amended, striking words, it is to be concluded that the legislature deliberately intended to change the law. People v. Bradley M., 352 Ill. App. 3d 291, 296 (2004). It should also be presumed that an amendment is made for some purpose, and effect must be given to the amendment in a manner consistent
¶ 23 It is abundantly clear that when he was arrested for DWLR defendant‘s privilege to drive a motor vehicle was revoked for having been convicted of DUI. The analysis should begin with the language of section 6-303(a) of the Code (the offense language) and section 6-303(d-5) of the Code (the felony enhancement factor).
“§ 6-303. Driving while driver‘s license, permit or privilege to operate a motor vehicle is suspended or revoked.
(a) Except as otherwise provided in subsection (a-5), 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 by this Code ***[.]
* * *
(d-5) Any person convicted of a fifteenth or subsequent violation of this Section is guilty of a Class 2 felony, and is not eligible for probation or conditional discharge, if the revocation or suspension was for a violation of Section 11-401 or 11-501 of this Code, or ***[.]” (Emphases added.)
625 ILCS 5/6-303(a) ,(d-5) (West 2008).
¶ 24 Throughout his brief, defendant maintains that he was charged with and convicted of aggravated DWLR and that, because his license had already been revoked for a non-DUI offense, “it could not be subsequently re-revoked for DUI.” The bill of indictment in this case charged defendant with “Aggravated Driving After Revocation in that he drove a motor vehicle upon a highway in this state at a time when his driving privileges were revoked in violation of
¶ 25 As section 6-303(a) of the Code provides, it is unlawful to drive when your “privilege to do so or the privilege to obtain a driver‘s license or permit is revoked or suspended.” (Emphasis added.)
¶ 26 When a defendant is convicted of DUI, which carries with it the mandatory revocation of the privilege to drive or the privilege to obtain a driver‘s license, the judge hearing the case requires the surrender to the clerk of any license or permit then held by the defendant, and, within five days thereafter, the clerk forwards the license or permit together with a report of conviction to the Secretary of State. See
¶ 27 Contrary to the majority‘s analysis, the term “the revocation” in section 6-303(d-5) of the Code (
“The legislature has established through section 6-208 the procedure to have driving privileges restored. It calls for the disclosure of the revocation or other action taken against the applicant and then provides that the Secretary shall not issue a license until he has investigated the applicant and determined that to grant the privilege of driving on the highways will not endanger the public safety or welfare.”
See also
¶ 28 The “Provisions for Alcohol and Drug Related Revocations, Suspensions and Cancellations” contained in the Illinois Administrative Code require “[a]n alcohol and drug evaluation and the evidence of successful completion of treatment.”
¶ 29 The Criminal Code of 1961, article 36, provides that a vehicle used with the knowledge and consent of the owner in violation of an offense described in subsection (g) of section 6-303 of the Code is subject to seizure and forfeiture.
“The motor vehicle used in a violation of this Section is subject to seizure and forfeiture as provided in Sections 36-1 and 36-2 of the Criminal Code of 1961 if the person‘s driving privilege was revoked or suspended as a result of a violation listed in paragraph (1), (2), or (3) of subsection (c) of this Section or as a result of a summary suspension as provided in paragraph (4) of subsection (c) of this Section.”
625 ILCS 5/6-303(g) (West 2008).
¶ 30 These examples illustrate that the majority‘s interpretation would undermine many of the State‘s efforts to stop drunk drivers from driving while their driver‘s licenses are suspended or revoked. Persons like defendant not only would be able to escape the penalties intended for scofflaws like him, but they could also escape the provisions allowing for seizure and forfeiture of motor vehicles owned by and driven by such persons.
¶ 31 Defendant‘s argument is similar to the argument made by the defendant in People v. Bloomberg, 378 Ill. App. 3d 686 (2008), which addressed an issue involving section 6-303(d) of the Code. See
“Any person convicted of a second violation of this Section shall be guilty of a Class 4 felony and shall serve a minimum term of imprisonment of 30 days or 300 hours of community service, as
determined by the court, 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, a violation of Section 9-3 of the Criminal Code of 1961, relating to the offense of reckless homicide, or a similar out-of-state offense, or a statutory summary suspension under Section 11-501.1 of this Code.” Id.
¶ 32 At the time of his arrest, Bloomberg was serving a statutory summary suspension under section 11-501.1 of the Code (
“All parties agree that under that version of the statute, Bloomberg would not be eligible to be sentenced as a felon because his original suspension was not for an enhanced violation. Amendment of the statute included, in part, deletion of ‘original’ (suspension). By amending the statute in that manner, the legislature intended to broaden the scope of felony sentencing to individuals whose second DWLS occurred while they were suspended for one of the enumerated enhancements, including statutory summary suspension. Because Bloomberg was convicted of DWLS in December 2006, and his license had been suspended, pursuant to section 11-501.1 of the Vehicle Code, the felony sentencing provisions apply to him under a plain reading of the statute. Had the legislature not intended to focus on a party‘s current suspension to determine if it was for an enumerated enhancement, it would not have deleted ‘original’ when amending the statute.” Bloomberg, 378 Ill. App. 3d at 689.
The appellate court in Bloomberg also cited our opinion in People v. Smith, 345 Ill. App. 3d 179, 185 (2004), where we stated that the purpose of section 6-303(d) was to punish repeat offenders more severely than first-time offenders. Bloomberg, 378 Ill. App. 3d at 688.
¶ 33 After Bloomberg was decided, in 2008 the legislature reinserted the qualifying term “original” into subsection (d), but it did not amend the provision at issue in this case, subsection (d-5). When interpreting the language of subsection (d-5), we view the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation. Each word, clause, and sentence of a statute must be given a reasonable meaning, if possible, and should not be
¶ 34 An amendment to a statute is presumed to have a purpose and it is construed together with the original act to which it relates. People v. Woodard, 175 Ill. 2d 435, 444 (1997). When the legislature enacts an amendment, it is presumed to act with knowledge of prevailing case law, and it can amend a statute if it intends a construction that is “different from that given by a court.” Corwin v. Abbott Laboratories, 353 Ill. App. 3d 848, 851 (2005). Clearly, the legislature recognized that, when it omitted the word “original” from subsection (d), a defendant like Bloomberg with only one prior DWLS violation, no matter the reason for the suspension, would be subject to felony sentencing for only his second violation, an admittedly harsh result. However, subsection (d-5), which does not contain the word “original,” is consistent with the clear intent of the legislature to punish repeat offenders more severely, especially in a case where the offender has a revocation for DUI in effect at the time of the offense, as was the case here.
¶ 35 In the instant case, the majority refuses to look at the Code as a whole to determine legislative intent. Specifically, the majority states that “[t]he Code does not provide any guidance or rules in circumstances, such as here, where the Secretary has imposed additional revocations of an individual‘s driver‘s license for additional offenses committed after the original revocation but where the driver has never applied for a new license or where the Secretary has never issued the driver a new license. Therefore, as applied to the facts of this case, the Secretary‘s 2001 formal administrative sanction of revocation had no effect because the Secretary had never issued a new license.” Supra ¶ 9. The revocation of defendant‘s license or privilege to obtain a license was extended 11 times due to convictions that the majority says “had no effect.” These extensions were the result of the subsequent convictions and new orders of revocation, which were all in effect at the time of defendant‘s arrest in this case. See
¶ 36 Under the majority‘s view, an offender cannot be revoked for DUI if he is already revoked for some other reason. Therefore, he could not be required to have an ignition interlock device and could then avoid prosecution for violating section 303(c-4) of the Code. See
¶ 37 The Appellate Court for the Fourth District explained in Kennedy, 372 Ill. App. 3d 306, that the legislature created in section 6-303 two sets of penalty schemes for persons
¶ 38 In Kennedy, the appellate court rejected the defendant‘s argument that, to be eligible for a Class 4 sentence under subsection (d-3), a defendant must be convicted of “a fourth or subsequent violation” of subsection (d-3), which requires proof of a revocation or suspension 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, a violation *** of the Criminal Code of 1961, relating to the offense of reckless homicide, *** or a statutory summary suspension under Section 11-501.1 of this Code.”
¶ 39 Applying the reasoning in Kennedy to subsection (d-5), if the legislature had intended to limit the application of Class 2 nonprobationable felony sentencing to those individuals whose “original” revocations were for one of the enumerated violations, it could have so stated.
¶ 40 The majority‘s interpretation of the term “revoked” or “revocation” and its definition of “driver‘s license” are in conflict with numerous provisions of the Code and with reported decisions of our appellate and supreme courts. For example, section 6-208(b)(1.5) of the Code deals with persons revoked for reckless homicide who then are convicted of DWLR.
“If the person is convicted of a violation of Section 6-303 of this Code committed while his or her driver‘s license, permit, or privilege was revoked because of a violation of Section 9-3 of the Criminal Code of 1961, relating to the offense of reckless homicide, or a similar provision of a law of another state, the person may not make application for a license or permit until the expiration of 3 years from the effective date of the most recent revocation.” (Emphasis added.) Id.
The majority‘s interpretation would render section 6-205(c)(2) meaningless for repeat DUI offenders who are revoked and then convicted of DUI again after the initial revocation. That section provides, in relevant part:
“If a person‘s license or permit is revoked or suspended due to 2 or more convictions of violating Section 11-501 of this Code or a similar provision of a local ordinance or a similar out-of-state offense, or Section 9-3 of the Criminal Code of 1961, where the use of alcohol or other drugs is recited as an element of the offense, or a similar out-of-state offense, *** that person, if issued a
restricting driving permit, may not operate a vehicle unless it has been equipped with an ignition interlock device as defined in Section 1-129.1.” 625 ILCS 5/6-205(c)(2) (West 2008).
¶ 41 The mandatory reporting requirements for the courts (
¶ 42 The plain and ordinary meaning of the term “revocation” as used in subsection (d-5) refers to the status of the offender‘s “driver‘s license, permit or privilege to do so or the privilege to obtain a driver‘s license or permit.”
“License to drive. Any driver‘s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident‘s driving privilege as defined herein.” (Emphasis added.)
625 ILCS 5/1-138 (West 2008).
¶ 43 Defendant had multiple revocations and suspensions in effect at the time of the instant offenses. In Gruchow v. White, 375 Ill. App. 3d 480 (2007), the Fourth District explained that construing the term “license” to include driving privileges “complies with Illinois‘s ‘strong public policy *** to keep repeat drunk drivers off the roads.’ ” Id. at 485-86 (quoting Girard v. White, 356 Ill. App. 3d 11, 19 (2005)).
¶ 44 Nunez, 236 Ill. 2d 488, involved a defendant who was convicted of both DWLR and aggravated DUI. Our supreme court held that DWLR was not a lesser-included offense of aggravated DUI and that convictions of both offenses did not violate the “one-act, one-crime” principle. Notably, the court said:
“[D]riving privileges were revoked, and the revocation was for two previous violations of section 11-501, one violation occurring on November 20, 1999, and the other violation occurring on January 26, 2002. This elevated the offense to a Class 3 felony. This DWLR charge was based on the fact that defendant drove his vehicle at a time when his driver‘s license was revoked for a previous violation of 11-501 of the Vehicle Code and he had been previously convicted of a violation of Section 6-303 of the Vehicle Code on May 10, 2000.” (Emphasis added.) Id. at 492.
Although the issues were different, the facts in Nunez clearly reflect multiple entries of orders of revocation notwithstanding that the defendant was already revoked.
¶ 45 In Odumuyiwa, 188 Ill. App. 3d 40, this court addressed an argument very similar to the
¶ 46 The language in Odumuyiwa applies with even greater force to persons, like defendant, who are convicted of DUI even though they are already revoked. Such revocations, unlike the cancellation/suspension situation in Odumuyiwa, are mandatory for a reason. As in the case with all battles to reduce drunk driving, complete and accurate records are crucial for both the administrative functions of the Secretary of State and, more importantly, for appropriate sentencing.
¶ 47 Defendant‘s argument, which the majority accepts, is also similar to the argument advanced by the defendant in People v. Masten, 219 Ill. App. 3d 172 (1991). On March 7, 1990, Masten was arrested for and charged with felony DWLR in violation of section 6-303 (
¶ 48 The Masten court explained that the Driver‘s License Compact, to which both Illinois and Virginia are parties, was incorporated in the Code and that under the compact a “party-State may not grant a license to a person who has a party-State‘s license currently revoked unless one year has passed from the date of revocation and the application is permitted by law.” Id.; see
¶ 49 Because Masten was under a statutory summary suspension when he obtained the Virginia license, the appellate court held that the Virginia license was invalid under the compact and Masten remained revoked for the 1976 DUI when he was arrested on March 7, 1990. The court observed that, “[w]ere we to hold otherwise, it would lead to the absurd result that one whose license had been previously revoked could avoid the effect of the summary suspension by obtaining a license in a foreign State as defendant did in this case.” Masten, 219 Ill. App. 3d at 175.
¶ 50 The court in Masten understood what is obvious from the Code and the case law. A revoked driver can be suspended; a suspended driver can be revoked; and a revoked driver can be revoked again and again, as defendant was in the instant case. As the Fourth District Appellate Court explained in Sass, 144 Ill. App. 3d 163:
“Finally, we note in passing the defendant‘s misguided contention that because only his license or permit was revoked under section 6-205(a)(2), and not his privilege to drive in the State of Illinois, he was therefore legally permitted to drive within this State by virtue of a valid foreign license. It is a matter of common knowledge that the operation of a motor vehicle is a privilege, and not a right. A driver‘s license, though, is issued in recognition of that privilege. The privilege to drive, and the license which is given so that the privilege may be exercised, are by no means separate and divisible.” (Emphases in original.) Id. at 170.
Defendant‘s argument and the majority‘s analysis in this case suffer from the same type of flawed logic as the defendants in Masten and Sass.
¶ 51 Although the majority and defendant put a new twist on an old theme, it is obvious from a review of the case law in our state that we recognize and give effect to suspension and revocation orders entered against persons who are already suspended or revoked. In People v. Yaworski, 2011 IL App (2d) 090785, the defendant was convicted of felony DUI (
“However, the full abstract plainly shows that on August 6, 2005, and again on August 12, 2005, defendant‘s license was revoked pursuant to section 6-205(a)(2) of the Code, which provides that, upon receipt of a report of a driver‘s DUI conviction, the Secretary of State shall immediately revoke the driver‘s license.
625 ILCS 5/6-205(a)(2) (West 2004). The abstract also indicates that the revocations remained in effect. Accordingly, the argument is without merit.” (Emphases added.) Yaworski, 2011 IL App (2d) 090785, ¶ 8.
The majority makes no attempt to acknowledge Yaworski, a recent case from our district, or to explain the fact that in that case we specifically referred to the concept of multiple revocations.
¶ 52 In People v. DiPace, 354 Ill. App. 3d 104 (2004), our court upheld the defendant‘s convictions of felony DUI and felony DWLR. One of DiPace‘s arguments on appeal was that the State “failed to establish at sentencing that at the time of his arrest his license had been revoked for driving under the influence, as required under the aggravated version of both statutes.” Id. at 115. In rejecting DiPace‘s argument, we stated:
“However, the presentencing report in this case reveals not only defendant‘s prior driving-under-the-influence convictions, but also the fact that at the time of his arrest his license was revoked due to those prior driving-under-the-influence convictions.” (Emphasis added.) Id.
¶ 53 This court recently addressed an argument that is somewhat similar to defendant‘s argument. In Rosenbalm, 2011 IL App (2d) 100243, the defendant was charged with two counts of aggravated DUI in that when he committed the offense of DUI he did not possess a valid driver‘s license.
¶ 54 In Rosenbalm, we recognized that “the legislature has taken great effort to establish an elaborate scheme under which the Secretary of State is charged with maintaining records of who possesses valid driver‘s licenses in Illinois. See
¶ 55 In People v. Smith, 162 Ill. App. 3d 739 (1987), the defendant was convicted of felony DWLR. The appellate court, in affirming Smith‘s conviction, observed that, “[a]t trial, the State introduced as evidence three separate orders of revocation, certified by the Secretary of State, all of which were for driving under the influence of intoxicating liquor and all of which were in effect on February 3, 1986.” Id. at 741.
¶ 56 Consistent with the reasoning in Smith, Senator Dan Cronin, the sponsor of the law at issue in this case, explained the policy behind its creation on the Senate floor:
“This bill simply says that–it simply provides for a penalty enhancement. Penalty enhancement after a certain number of convictions for the offense of driving on a revoked driver‘s license is currently a Class 4. In this case, if the offender is guilty of–if the offender is guilty of driving on a revoked license, a person convicted of a fifth, sixth, seventh, eighth or ninth offense of driving on a revoked or–driver‘s license or permit is guilty of a Class 4. It provides that a person convicted of a tenth, eleventh, twelfth, thirteenth, fourteenth offense–sounds a little goofy, but it happens every day in our courts, unfortunately–is guilty of a Class 3 felony, and a person that‘s convicted of a fifteenth or subsequent offense–sixteenth, seventeenth and so forth–would be guilty of a Class 2 felony. These are the very serious, most dangerous drivers, who we just are–are so frustrated and all of us have tried very hard here to figure out a way to get them off the roads. They are–they are just driving time bombs just waiting and–to–to wreck [sic] havoc and to ruin people‘s lives. We got to get ‘em off the road, these repeat offenders, and the only thing we can do in this bill is to make the penalties more severe and keep ‘em locked up.” 94th Ill. Gen. Assem., Senate Proceedings, May 11, 2005, at 96 (statements of Senator Cronin).
¶ 57 In this case, defendant‘s “permission” was revoked in 1991, but he continued to ignore the law and racked up an amazing number of convictions, including DUI, which was added to the “cause” for his revocation in 2001. He should not be allowed to escape the plain and ordinary meaning of section 6-303(a) of the Code; his “privilege” to drive or “privilege to obtain a driver‘s license” was revoked for DUI as well as for the other violations reflected in the orders of revocation entered on his driving abstract by the Secretary of State.
¶ 58 My research of other states has located only one case in which a defendant argued, as defendant here does, that an “order purporting to revoke his driver‘s license was invalid because he had no license to revoke when the order was issued.” Fielding v. State, 733 P.2d 271 (Alaska Ct. App. 1987). The State of Alaska is a member of the Nonresident Violator Compact. See
¶ 59 In the instant case, defendant‘s abstract reveals 11 extensions of revocation. The abstract also reveals that defendant was revoked for DUI on October 11, 2001, and that the order of revocation remained in effect at the time of his arrest in this case. The legislature clearly intended that an order of revocation for DUI would be given effect by our courts even though the offender has already been revoked for other reasons at the time of the DUI. In Fielding, the appellate court rejected the defendant‘s argument and held that the revocation was valid, “even though, when it is ordered, the defendant technically no longer has a license to revoke.” Fielding, 733 P.2d at 272. Likewise, here defendant‘s DUI revocation was valid and must be given effect, even though technically he had no valid license to revoke. This is because it is the abstract privilege to drive that was revoked and not merely the physical license. Defendant should not be allowed to avoid the statutorily prescribed punishments for aggravated DWLR, or the steps for reissuance of a driver‘s license as it relates to a DUI revocation, merely because he was initially revoked for a non-DUI offense. I believe that such a result makes a mockery of the law and is an improper interpretation of the statute.
¶ 60 It is a matter of common knowledge that entry of suspension and revocation orders on a driving record depend upon previous misconduct in the operation of a motor vehicle. See People v. Archibald, 3 Ill. App. 3d 591, 594 (1972). Also, the majority and defendant do not dispute the accuracy of the information contained in his driving abstract. The abstract is “prima facie evidence of facts therein stated,” including “proof of prior conviction or proof of records, notices, or orders recorded on individual driving records maintained by the Secretary of State.”
¶ 61 I maintain, as the defendant in People v. Lucas, 231 Ill. 2d 169, 177 (2008), argued, that “the only difference among legal driving, misdemeanor driving while license revoked, and driving while license revoked, subsequent offense, is the state of the driver‘s record.” The Illinois Supreme Court agreed with Lucas. It held that a subsequent DWLR offense (
¶ 62 The majority cites two cases, which were not cited by either party, to support its interpretation of the term “revocation.” See People v. Suddoth, 52 Ill. App. 2d 355 (1964); People v. Morrison, 149 Ill. App. 3d 282 (1986). I agree with the analysis in both of these cases. These cases merely demonstrate that a revoked license remains revoked until an application for a new license is made and it is acted upon by the Secretary of State. However, these cases do not in any way
¶ 63 The majority misses the point of Suddoth and Morrison, which is that the restoration of one‘s driving privileges is not automatic. Unlike a suspension, where privileges can be reinstated after the suspension period has expired and upon payment of a fee, a revocation requires a person to demonstrate to the Secretary that “after a review or investigation of such person, *** to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare.” (Emphasis added.)
¶ 64 In this case, the revocation for DUI in 2001, according to defendant‘s driving abstract, clearly shows the entry of a DUI conviction and a mandatory revocation for that offense, which remained in effect on the date of the offenses in this case. In People v. Morrison, 149 Ill. App. 3d 282, 284 (1986), the court observed that, “[f]rom the above statutory and case law, it is apparent that the revocation period is the time period when a person may not apply for a new license.” (Emphasis added.) Here, defendant was originally revoked in 1991 for using a motor vehicle in the commission of a felony. The original order of revocation, which would have expired one year from the date of revocation (
¶ 65 Neither the majority nor defendant cites any cases or any other authority that would entitle this court to disregard the information contained in his driving abstract, namely, that he was convicted of and revoked for DUI in 2001 and that said revocation remained in effect at the time of the instant offenses.
“THE DEFENDANT: I arranged myself a ride to work every day, sir, up until that day.
THE COURT: Look, you know, there‘s this theory about what‘s the big deal I was only driving a car, I am not hurting anybody, I am going to work, I am supporting my children. That‘s a lot of bologna [sic], absolute bologna [sic].
THE DEFENDANT: I understand that, sir.
THE COURT: It‘s a continuing flagrant violation of the law. People are of the opinion what are you getting excited about people driving revoked and suspended. You are a potential predator on the roadway. You crack up your car, you crack up people. They are totally innocent.
THE DEFENDANT: I understand that, sir.
THE COURT: But you, you shouldn‘t even be behind the wheel, but you are. The potential is there for great bodily harm, death, substantial damage, personally and property-wise. So it‘s not a poo-poo type of offense. Are you running around with a gun or a knife? Absolutely not. No one is suggesting that for one moment. But you have the potential, and we see it day in and day out here. People truly being hurt on account of offenders such as yourself, and it‘s a blight on this community, a plague on this community.”
¶ 67 For the foregoing reasons, I believe that defendant was properly revoked for DUI in 2001, notwithstanding that his license or privilege to drive was previously revoked for a non-DUI offense, and the State properly relied upon “the revocation” in order to enhance defendant‘s sentence where his driving abstract revealed at least 14 prior convictions of violations of section 6-303 of the Code.