DUI Case Summary: People v. Barwan, et al

954 N.E.2d 427, 2011 IL App (2d) 100689 (2011)

The trial court improperly assessed the evidentiary support for the allegations contained in the indictments, that the present offense was each defendant’s third DUI “violation”, rather than assessing the legal sufficiency of each indictment.  The trial court erred when it considered the pending status of defendants’ second DUI cases in granting defendants’ motions to dismiss.

Three unrelated cases, involving the same issue, were consolidated for decision. Each of three defendants were charged by indictment with driving under the influence of alcohol (DUI) pursuant to 625 ILCS 5/11-501(a)(2), and aggravated DUI as a repeat offender pursuant to 625 ILCS 5/11-501(d)(2)(B), a Class 2 Felony.  The charges constituted the third DUI case for each defendant, as each previously had been convicted of DUI and each had a second DUI case pending before the Trial Court.  In each case, the defendant moved to dismiss the aggravated DUI charge pursuant to 725 ILCS 5/114-1(a) (8) for failure to state an offense and denial of due process.  The defendants argued that although he previously had been convicted of one DUI, his second DUI charge was still pending and, therefore, did not constitute a “violation” under the statute.  Each defendant argued that the Prosecution impermissibly used the second prior pending DUI charge to elevate the third pending DUI offense to aggravated DUI.  The Trial Court granted the motions, dismissing the felony charge in each indictment, finding that, although the term “violation” had broader meaning than the term “conviction”, a “violation” did not include a pending charge.  The Trial Court later denied the State’s motions to reconsider.  In each case, the State filed a certificate of impairment and appealed pursuant to Illinois Supreme Court Rule 604(a) (1).  On appeal the State argued that the Trial Court erred in dismissing the aggravated DUI charges against the defendants.  The State argued that the Trial Court erred in assessing information beyond the indictments that had no bearing on the sufficiency of the indictments, and the term “violation” in the aggravated DUI statute included pending DUI charges.

Writing for the Court, Justice Jorgensen cited People v. Sheehan, 168 Ill.2d 298, 303, 213 Ill.Dec. 692 (1995): “The purpose of a motion to dismiss for failure to state an offense is to challenge the sufficiency of the allegations in the complaint, not the sufficiency of the evidence”. The Appellate Court noted that a reviewing Court must determine whether the complaint complies with the statutory requirements that a charge be in writing, that it set forth the nature and elements of the offense, and that it allege the provision violated, the name of the accused, and the date and county of commission.  See 725 ILCS 5/111-3(a).

The Appellate Court reviewed de novo the dismissal of a charge for failure to state an offense, citing People v. Soliday, 313 Ill.App.3d 338, 342, 246 Ill.Dec. 154 (2000), and also assessed de novo an issue of statutory construction, citing People v. Taylor, 221 Ill.2d 157, 162, 302 Ill.Dec. 697 (2006).

            The Appellate Court analyzed and relied upon Sheehan for guidance.  In Sheehan, the Supreme Court addressed whether an aggravated DUI charge was properly dismissed where the State had alleged as one of the two required enhancing offenses a prior DUI violation that resulted in a sentence of Court Supervision.  In Sheehan, the Supreme Court held that the term “committed” (Ill.Rev.Stat.1991, Ch. 95 ½, par. 11-501(d) (1) (now 625 ILCS 5/11-501(d) (1) (A)) permits the use, as an enhancing offense under the felony DUI statute, of a prior DUI violation resulting in a sentence of court supervision.  The Appellate Court noted that the Supreme Court rejected a defendant’s argument that the term “committed” in the felony DUI provision is limited to formal judgments of conviction.  The Supreme Court specified that one commonly-used definition of “commit” is ” ‘[t]o perpetrate, as a crime; to perform as an act.’ ”  The Supreme Court concluded that the term “committed,” which is not defined by statute, has, in its ordinary sense, a broader scope than the term “convicted”.

            The Sheehan Court also rejected defendant’s argument that the supervision statute’s provision that successful completion of a term of supervision is deemed “without adjudication of guilt” precludes the use as an enhancing offense of a charge for which supervision was imposed and completed.  According to the Sheehan Court, the fact that “one who successfully completes a term of supervision is not adjudicated guilty does not mean that he or she did not commit the offense for which supervision was imposed”.  The Sheehan Court noted that charges resulting in supervision have been treated as “prior committed offenses” for purposes of imposing subsequent penalties.  The Sheehan Court noted that a person who has received a sentence of court supervision for DUI is no longer considered a first offender.

            The Sheehan Court also criticized the appellate court’s analysis, noting that the Appellate Court, in addressing issues concerning proof of prior offenses, had considered questions that were improper in an appeal from an order dismissing the charges for failure to state an offense.

            In the matter at bar, the State argued that the Trial Court’s rulings ran counter to Sheehan and that the Trial Court “transgressed” the boundaries of information it could assess in ruling on a motion to dismiss.  The State maintained that the indictment complied with all of the statutory requirements: the indictments alleged as to each defendant that he had previously committed the offense of DUI on two prior occasions, on the relevant dates and counties in violation of the felony DUI statute (625 ILCS 5/11-501(d) (2) (B)).  The indictments further stated that the aggravated DUI was a Class 2 felony.  The State maintained that, by having the defendants’ second DUI cases pending on its call, the Trial Court impermissibly took into consideration that the cases had not yet proceeded to adjudication.

            The State also relied on Soliday.  In Soliday, the defendant was charged with criminal damage to property.  The defendant moved to dismiss the charge, asserting that he could not be found guilty of the offense, because the dog was his property and not the property of another.  The defendant attached a copy of a written agreement, between himself and a rescue group, that obligated him to satisfy various conditions and provided that violations would result in the return of the dog to the rescue group.  The Trial Court granted the defendant’s motion to dismiss.  The Appellate Court reversed, holding that the dismissal was improper because the information sufficiently pleaded the offense.  The Appellate Court noted that “neither a trial court nor an appellate court can evaluate the evidence that the parties might present at trial when determining whether dismissal under section 114-1(a) (8) of the Procedural Code is appropriate”.  The Appellate Court rejected the defendant’s claim because whether, under the agreement, the rescue group maintained a property interest in the dog was a factual issue.

            In the matter at bar, defendants did not dispute that the term “violation” is broader than the term “conviction”, but they argued it would be unprecedented for a prior pending charge to be used to enhance a misdemeanor DUI charge to a felony.  Defendants argued that Sheehan was distinguishable because, in that case, the prior charge that resulted in a sentence of court supervision necessarily meant that the defendant had either pleaded guilty or been found guilty of DUI.  In the matter at bar, however, their second prior DUI cases were still pending and they had not pleaded guilty to, or been found guilty of, the offenses.  Each defendant argued that he could not be found to have “committed a prior violation” (625 ILCS 5/11-501(d)(1)(A)) until a proceeding had taken place at which he was found guilty or he was otherwise found to have actually committed the prior offense.  Each defendant argued that to hold otherwise would subject him to a recidivist enhancement without affording the procedural due process rights to the safeguards of a trial, a guilty plea, or even a bond forfeiture proceeding.

            Addressing the State’s argument that the Trial Court impermissibly looked beyond the language of the indictments, defendants argued that Sheehan held only that a prior DUI offense that resulted in a sentence of court supervision could be considered a prior committed offense for purposes of enhancing a misdemeanor DUI charge to an aggravated DUI charge.  Defendants argued that they had not been found guilty of their second DUI charges, and the State could not justifiably charge them with aggravated DUI based on the pending DUI charges.

            The Appellate Court concluded that the Trial Court erred when it considered the pending status of defendants’ second DUI cases in granting defendants’ motions to dismiss.  The Appellate Court noted that the Trial Court assessed whether the allegations that defendants had committed DUI’s on two prior occasions were negated by the fact that the second DUI cases were still pending.  The Appellate Court concluded that the Trial Court improperly assessed the evidentiary support for the allegations contained in the indictments that the present DUI offense was each defendant’s third “violation”, rather than assessing the legal sufficiency of each indictment.

            The Appellate Court did not address whether the term “violation” encompasses a pending DUI charge, “because any determination would be speculative as to the nature and extent of the proof to be made by the State at the time of sentencing”.  The Appellate Court expressed no opinion as to whether the term “violation” encompasses a pending DUI charge.  The Appellate Court concluded only that the Trial Court’s consideration of the circumstances of each defendant’s second prior DUI violation and its finding that a pending DUI does not constitute a violation were “premature and impermissible in the context of assessing defendants’ motions to dismiss”.

            The Appellate Court reversed the judgments of the circuit court of Boone County, and remanded the causes.

David B. Franks
Lake in the Hills, IL