People v. Nunez

Docket No. 108189

SUPREME COURT OF ILLINOIS
2010 Ill. LEXIS 280

 (As appearing in the Illinois State Bar Association Traffic
Laws and Courts Newsletter, June 2010, Vol. 19, No. 4).

The fact that Defendant’s driver’s license was revoked at the time he drove while under the influence is not an element of the DUI offense; rather it was a factor that served to enhance the sentence classification from a misdemeanor to a Class 3 felony DUI. As a matter of law, Defendant’s Driving While License Revoked (DWLR) offense was not a lesser-included offense of aggravated DUI.

FACTS

On the evening of November 22, 2006, a Cook County Deputy Sheriff was located in a parking lot writing parking tickets when a man drove up, exited his car, and inspected the passenger side of the car. Two women then drove up and told the Officer that Defendant had struck their car. The Officer received a call about a hit-and-run and a vehicle that fled the scene. Defendant got back into his car and drove off. The Officer followed and, after Defendant ran several stop signs, the Officer activated his emergency lights and stopped Defendant’s car. Upon the Officer’s request, Defendant stated he did not have his driver’s license. The Officer smelled the odor of cannabis coming from Defendant’s car. When he got out of his car, Defendant stumbled, and his eyes were bloodshot and his speech was slurred. The Officer detected the faint odor of alcohol on Defendant’s breath. It was the Officer’s opinion that Defendant was unable to drive the car due to being under the influence of drugs and alcohol. After receiving his Miranda warnings, Defendant refused to answer any questions and refused to take a breath test. The arresting Officer and another officer searched Defendant’s car and found a half-smoked marijuana cigarette under the driver’s seat. The two women drove up to the scene and identified Defendant as the driver who hit their car.

Following a bench trial in the Circuit Court of Cook County, the trial court entered verdicts of guilty on Count I (aggravated Driving Under the Influence in violation of Sections 11-501(a)(4) and (c-1)(2.1) of the Illinois Vehicle Code) and Count V (Driving While License Revoked in violation of Section 6-303(d) of the Illinois Vehicle Code) of the information. The Trial Court sentenced Defendant to two concurrent terms of two years’ imprisonment.

On appeal, Defendant argued that his conviction for Driving While License Revoked (DWLR) should be vacated under one-act, one-crime principles. The State agreed, citing the decision in People v. King, 66 Ill.2d 551, 566 (1977). Relying on People v. DiPace, 354 Ill.App.3d 104, 115-17 (2004), the appellate court refused the State’s concession, holding that, although the act of driving was involved in both offenses, Defendant was convicted and sentenced based on two separate, but simultaneous, acts. The Supreme Court granted Defendant’s petition for leave to appeal.

ANALYSIS

Writing for the Court, Justice Garman noted that Defendant’s aggravated DUI charge was based on the fact that he committed a violation of Section 11-501 of the Vehicle Code for the third time, during a period in which his driving privileges were revoked, and the revocation was for two previous violations of Section 11-501. These factors elevated the offense to a Class 3 felony. The Driving While License Revoked (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 Section 11-501 of the Vehicle Code and he had been previously convicted of a violation of Section 6-303 of the Vehicle Code.

Defendant advanced two arguments in his appeal. First, Defendant argued, as he did in the appellate court, that his conviction for Driving While License Revoked (DWLR) should be vacated under one-act, one-crime principles. Second, he argued that if the Court rejected his first argument, then the Court should nonetheless find that his conviction for Driving While License Revoked (DWLR) must be vacated because that offense is a lesser-included offense of aggravated DUI.

The Supreme Court observed that the State conceded in the appellate court that both of Defendant’s convictions were based on the same physical act and that, therefore, the conviction for Driving While License Revoked (DWLR) must be vacated. Before the Supreme Court, the State argued, however, that the appellate court was correct in holding that no one-act, one-crime violation occurred and the State also argued that it had not “waived” review of this issue. The Supreme Court agreed that the State was not estopped from making this argument.

Defendant acknowledged that his one-act, one-crime argument was not raised before the trial court and that it was, therefore, forfeited. The Supreme Court noted that the appellate court did not address the issue of forfeiture and simply decided the issue as though it had been properly preserved for review. Defendant asserted that the Supreme Court should address his argument under the plain-error doctrine. The Court agreed, stating that forfeited one-act, one-crime arguments are properly reviewed under the second prong of the plain-error rule because they implicate the integrity of the judicial process. People v. Artis, 232 Ill.2d 156, 161 (2009).

The Supreme Court stated that in People v. Rodriguez, 169 Ill.2d 183, 186 (1996), it clarified the King doctrine (People v. King, 66 Ill.2d 551 (1977)). In a one-act, one-crime analysis, a court must first determine whether a defendant’s conduct consists of one act or several acts. Multiple convictions are improper if they are based on precisely the same physical act. If it is determined that the Defendant committed multiple acts, then the Court proceeds to determine whether any of the offenses are lesser-included offenses. If so, then, under King, multiple convictions are improper.

The Supreme Court observed that the appellate court relied on DiPace, a 2004 decision from the Second District. In that case, the defendant was convicted of a Class 2 felony DUI and a Class 4 felony DWLR. On appeal, the defendant argued that he could not be convicted of both offenses because they were each based on the single physical act of driving. The appellate court rejected this argument, noting that there was nothing criminal in driving, per se. According to the appellate court, it was a Defendant’s culpable physical act–one that will support an offense–that is the “act” for one-act, one-crime purposes. DiPace, Supra, at 116.

In the matter before the Court, Defendant argued that DiPace was wrongly decided. Defendant argued that the only physical act involved in both of his offenses was the driving of his car. The State argued that it was not just the act of driving, but rather the act of driving plus the “acts” of being intoxicated and having no valid driver’s license that constituted the multiple acts underlying Defendant’s offenses.

The Court then reviewed Section 11-501(b-1)(2) of the Vehicle Code, and concluded that this Section controlled the disposition of this case. Section 11-501(b-1)(2) provides:

Any penalty imposed for driving with a license that has been revoked for
a previous violation of subsection (a) of this Section shall be in addition
to the penalty imposed for any subsequent violation of subsection (a).

Justice Garman stated that the plain language of Section 11-501(b-1)(2) of the Vehicle Code mandated that the penalty for Defendant’s Driving While License Revoked (DWLR) conviction be in addition to the penalty for his aggravated Driving Under the Influence conviction. The Court noted that Defendant was convicted of DWLR based on the fact that he drove his vehicle at a time when his driver’s license was revoked for a previous violation of section 11-501(a). In addition to the DWLR offense, Defendant violated section 11-501(a)(4) by driving his vehicle while he was under the influence of a drug or combination of drugs to a degree that rendered him incapable of driving safely. While other factors enhanced the offense to aggravated DUI, the Supreme Court, citing People v. Van Schoyck, 232 Ill.2d 330, 337 (2009), observed that there is only one offense of driving under the influence.

Justice Garman concluded that the legislature had expressly provided that the penalty for Defendant’s conviction for DWLR shall be in addition to the penalty for his conviction for aggravated DUI.

The Court next addressed Defendant’s second argument, that his conviction for DWLR must be vacated because it is a lesser-included offense of aggravated DUI. Defendant argued that all of the elements of DWLR were included in the offense of aggravated DUI.

Citing People v. Jones, 149 Ill.2d 288, 293 (1992) the Supreme Court noted that a lesser-included offense is one that is composed of some, but not all, of the elements of the greater offense and which does not have any element not included in the greater offense.

The State argued, and the Supreme Court agreed, that DWLR is not a lesser-included offense of aggravated DUI. The Supreme Court then discussed its decision in Van Schoyck, in which it addressed the question of whether there are two different DUI offenses, one a misdemeanor and one a felony. In Van Schoyck, the Supreme Court held that under the plain language of the DUI statute, there was only one offense of driving under the influence. In Van Schoyck, the Court noted that the statute designates any violation of subsection (a) as a misdemeanor. Subsection (c) of the statute contains a list of factors that enhance the misdemeanor to various different classes of felonies. In the matter at bar, the Court concluded that the enhancing factors that elevated Defendant’s offense to a felony did not create a new offense, but merely served to enhance the punishment. The Court noted, citing People v. Quigley, 183 Ill.2d 1, 10 (1998), the Court previously found that the essential and underlying criminal act is the same for misdemeanor and felony DUI, i.e., driving under the influence of alcohol or drugs. In Van Schoyck, the Court also observed that Section 111-3(c) of the Criminal Code of 1961 specifically provides that when the State seeks an enhanced sentence through the use of a prior conviction, the fact of the conviction and the State’s intention to seek the enhanced penalty are not elements of the offense.

Defendant argued that Van Schoyck was inapplicable. Defendant acknowledged that his prior convictions for Driving Under the Influence and Driving While License Revoked were sentence enhancements and not elements of the aggravated DUI offense. Defendant argued, however, that proof that he drove with a revoked license was an element of both his offenses. He asserted that Section 111-3 of the Criminal Code did not apply because revocation of a driver’s license is “a civil sanction, not a criminal conviction.”

The Supreme Court rejected Defendant’s argument and concluded that Defendant’s reliance on People v. Lavariega, 175 Ill.2d 153 (1997), was misplaced. Lavariega addressed summary suspension, which the Supreme Court held is a civil proceeding. The present case involved a criminal proceeding. In the matter at bar, Defendant drove while his driver’s license was revoked. Defendant was not subject to summary suspension. The Supreme Court determined that the revoked status of Defendant’s driver’s license at the time he drove while under the influence of drugs was not an element of the DUI offense; rather, it was a factor that served to enhance the sentence classification for the DUI from a misdemeanor to a Class 3 felony. The Supreme Court ruled that as a matter of law, Defendant’s DWLR offense was not a lesser-included offense of aggravated DUI.

RULING

The Supreme Court held that Defendant was properly convicted of both aggravated DUI and DWLR, and that DWLR is not a lesser-included offense of aggravated DUI. The Supreme Court affirmed the appellate court’s judgment.


David B. Franks
Lake in the Hills, Illinois

Experience counts.  Results matter.

FRANKS & RECHENBERG, P.C.
1301 Pyott Road, Suite 200
Lake in the Hills, IL 60156
Phone: 847-854-7700
Fax: 847-854-7848

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