Archive for September, 2011

DUI with No Valid Driver License in Illinois is a Felony

September 30th, 2011 at 2:39 pm

— N.E.2d —-, 2011 IL App (2d) 100,243, 2011 WL 4485831 (Ill.App. 2 Dist.)

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Appellate Court of Illinois,
Second District.
The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
James G. ROSENBALM, Defendant–Appellant.

No. 2–10–0243.

Sept. 27, 2011.

Appeal from the Circuit Court of Boone County. Nos. 08–CF–235, 08–DT–123, 08–TR–4095, John H. Young, Judge, Presiding.

OPINION
Justice BIRKETT delivered the judgment of the court, with opinion:

*1 ¶ 1 Following a stipulated bench trial, defendant, James G. Rosenbalm, was convicted of aggravated driving under the influence (625 ILCS 5/11–501(d)(1)(H) (West 2008)). The trial court sentenced him to 24 months’ probation and 480 hours of community service. Defendant appeals, contending that the trial court erred in denying his motion to dismiss. For the reasons that follow, we affirm.

¶ 2 BACKGROUND
¶ 3 Defendant was charged with two counts of aggravated driving under the influence in that on April 19, 2008, he operated a motor vehicle while under the influence of alcohol and while he “did not possess a driver’s license.” 625 ILCS 5/11–501(d)(1)(H) (West 2008). When defendant was arrested, his driver’s license was being held as bond in another case. On September 29, 2007, while being held as bond, defendant’s driver’s license expired. Defendant was unable to renew his driver’s license because of outstanding traffic fines in a number of other cases. See 625 ILCS 5/6–306.6(a) (West 2006) (“Whenever any resident of this State fails to pay any traffic fine, penalty, or cost imposed for a violation of this Code, or similar provision of local ordinance, the clerk may notify the Secretary of State, on a report prescribed by the Secretary, and the Secretary shall prohibit the renewal, reissue or reinstatement of such resident’s driving privileges until such fine, penalty, or cost has been paid in full.”).

¶ 4 Defendant moved to dismiss the charges, arguing that, although his driver’s license was expired when he was arrested, the statute simply required possession of a driver’s license, not possession of a valid driver’s license. The trial court disagreed and denied defendant’s motion.

¶ 5 Following a stipulated bench trial, on November 25, 2009, the trial court found defendant guilty. Over three months later, on March 10, 2009, the trial court sentenced defendant to 24 months’ probation and 480 hours of community service. On the same day, defendant filed a motion entitled “Motion for Appeal,” which requested a new trial based on a number of alleged errors committed by the trial court. (There is no documented ruling on this motion in the record.) On March 24, 2010, defendant filed an amended notice of appeal.

¶ 6 ANALYSIS
¶ 7 On appeal, defendant argues that the trial court erred in denying his motion to dismiss because he possessed a driver’s license under section 11–501(d)(1)(H) of the Illinois Vehicle Code (Code) (625 ILCS 5/11–501(d)(1)(H) (West 2008)), even though his driver’s license was expired at the time of the offense. Defendant has forfeited review of this contention, because he failed to raise it in a timely posttrial motion. See People v. Rodriguez, 408 Ill.App.3d 782, 792 (2011) (the defendant forfeited his contention where he did not both object and raise it in a timely posttrial motion); 725 ILCS 5/116–1(b) (West 2008) (a motion for a new trial must be filed within 30 days following the entry of a finding or the return of a verdict).

*2 ¶ 8 Forfeiture aside, however, defendant’s contention that section 11–501(d)(1)(H) does not require possession of a valid driver’s license is devoid of any merit. The primary goal in statutory construction is to ascertain and give effect to the intent of the legislature. People v. Pullen, 192 Ill.2d 36, 42 (2000). The first step is to examine the language of the statute—“the surest and most reliable indicator of legislative intent.” Pullen, 192 Ill.2d at 42. If the statute does not provide a definition indicating a contrary legislative intent, words in the statute are given their ordinary and commonly understood meanings. People v. Liberman, 228 Ill.App.3d 639, 648 (1992). Where the language is clear, the statute may not be revised to include exceptions, limitations, or conditions that the legislature did not express. People v. Goins, 119 Ill.2d 259, 265 (1988). However, we must assume that the legislature did not intend an absurd or unjust result. Pullen, 192 Ill.2d at 42. 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. See People v. Sass, 144 Ill.App.3d 163, 169 (1986); People v. Manikas, 106 Ill.App.2d 315, 319–20 (1969).

¶ 9 Section 11–501(d)(1)(H) of the Code provides that a person commits aggravated driving under the influence when he or she drives under the influence and “the person committed the violation while he or she did not possess a driver’s license or permit or a restricted driving permit or a judicial driving permit or a monitoring device driving permit.” 625 ILCS 5/11–501(d)(1)(H) (West 2008). Although, as defendant contends, the statute does not expressly refer to a valid driver’s license, to read the statute to avoid application of the aggravating factor where a person possesses a revoked, suspended, or expired license would lead to absurd results. See People v. McCarty, 223 Ill.2d 109, 126 (2006) (“In interpreting a statute, we presume the legislature did not intend absurd results.”). Under defendant’s interpretation, a person who drives while under the influence and who has never been issued a driver’s license would be subject to a charge of aggravated driving under the influence, but a person who drives while under the influence but has an expired or suspended license would not be, although the latter person is no more legally entitled to drive than the former. We do not believe that the legislature could have intended such a result.

¶ 10 Moreover, the physical driver’s license card merely represents the permission, i.e., license, that the state has granted a person to drive on the state’s roadways, and it is the permission, not the card, that a person must possess to legally drive on the roads of Illinois. See 625 ILCS 5/6–101(a), (b) (West 2008) (requiring a “valid license or permit” to operate a motor vehicle in Illinois). Thus, the real question is not whether a person was ever issued a driver’s license card, but whether, when the offense was committed, the person possessed permission from the state to drive. If, when the offense was committed, the person’s permission, i.e., license, was revoked, suspended, or expired, then that person did not possess a license to drive.FN1

FN1. We note that the issue presented to us is not whether a person must have the physical driver’s license card in his or her possession at the time of the offense; thus, our decision does not represent a determination that a person commits aggravated driving under the influence when he or she drives while under the influence and does not have his or her driver’s license card in his or her possession at the time of the offense.

*3 ¶ 11 Finally, it is apparent 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 625 ILCS 5/6–117 (West 2008) (records to be kept by the Secretary of State); 625 ILCS 5/6–204 (West 2008) (when courts are to forward license and reports to the Secretary of State). This scheme demonstrates the legislature’s concern that only those possessing valid licenses operate motor vehicles on Illinois roads; such an elaborate scheme would be unnecessary if the legislature were not focused on penalizing those who operate vehicles without valid licenses.

¶ 12 We recognize that our interpretation that section 11–501(d)(1)(H) requires possession of a valid driver’s license renders superfluous section 11–501(d)(1)(G) of the Code (625 ILCS 5/11–501(d)(1)(G) (West 2008)). See People v. Botruff, 212 Ill.2d 166, 175 (2004) (“Each word, clause and sentence of the statute, if possible, must be given reasonable meaning and not rendered superfluous.”). We conclude, however, that in this case it is better to render section 11–501(d)(1)(G) superfluous than to permit the absurd result that would obtain from defendant’s interpretation of section 11–501(d)(1)(H). Moreover, given the extensive history of amendments to this statute and the resulting confusion, it is not at all unreasonable to believe that the overlap between these two subsections is simply an oversight by the legislature in enacting one of its many amendments to this statute. See People v. Maldonado, 402 Ill.App.3d 1068 (2010) (discussing the mass confusion caused by the multitude of amendments made to the driving-under-the-influence statute); People v. Prouty, 385 Ill.App.3d 149 (2008) (same).

¶ 13 CONCLUSION
¶ 14 The judgment of the circuit court of Boone County is affirmed.

¶ 15 Affirmed.

Presiding Justice JORGENSEN and Justice BURKE concurred in the judgment and opinion.

In the below case, the defendant appealed his conviction, arguing that the statute did not require a VALID license; but rather simply a license. Thus he claimed his felony conviction was improper. The appeals court disagreed:
Ill.App. 2 Dist.,2011.
People v. Rosenbalm
— N.E.2d —-, 2011 IL App (2d) 100,243, 2011 WL 4485831 (Ill.App. 2 Dist.)

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MACON, CHAMPAIGN COUNTIES CREDITING HIGH-TECH SOBRIETY WITH DOUBLE DIGIT DROPS IN DUIs

September 13th, 2011 at 1:19 pm

Below is a story which suggests that SRAMx is the sole reason for a drop in DUI arrests in Illinois counties. The real reason that DUI arrests have decreased is the economy. Restaurants are closing, and even the ones that remain open are struggling due to a significant drop in customers. There are many counties in Illinois that have also had the same decrease in DUIs even though they do not use SCRAM technology as vigorously. Given that fact, it appears once again that prosecutors are falsely claiming credit for something they do not deserve. When the economy returns to its former self, you will see a rise in the arrests. Will prosecutors accept blame then?

Here is the story below:

Prosecutors in Macon and Champaign counties are crediting a focus on Hard Core Drunk Drivers (HCDDs) and the use of technology for record drops in DUI arrest rates since 2008—a reduction that’s nearly four times that of the state’s average.

From 2008 to 2010, Macon County DUI arrests have dropped 30.6%, while Champaign County saw a 29.8% drop during the same time frame. Illinois statewide saw an 8.3% decrease in roughly the same time period. According to Macon County States Attorney Jack Ahola, his county has had no reduction in DUI enforcement efforts during that period, and he’s crediting the implementation of a 24/7 continuous alcohol monitoring program with helping to change the trend of repeat DUIs in his county.

“Drunk drivers, and in particular the hard core, repeat offenders, put our community at incredible risk,” says Ahola. “We just aren’t tolerating it anymore.” The numbers for Macon County show 1,057 DUI arrests in 2008, 1,061 in 2009 and 734 in 2010. To date for 2011, there are 437 arrests, on pace for 655 for the year. Since 2008, both Macon and Champaign counties have been utilizing SCRAMx alcohol monitors. SCRAMx is an ankle bracelet system that actually tests an offender’s sweat every 30 minutes to ensure compliance with court-ordered sobriety. “If they aren’t drinking, they aren’t drinking and driving. And we put them on SCRAMx long enough to get them sober long-term, not just while they’re under our supervision,” says Ahola. DUI offenders in the area are wearing SCRAMx monitors for periods that are double the national average, a fact officials believe is contributing to the behavior change that’s driving the significant drop in DUI arrests.“When they’re sober long enough, they begin to make different choices. We’re clearly seeing the results in our year-to-year DUI arrest numbers” adds Ahola.

Bob Nienhouse, president of CAM Systems, which manages SCRAMx and other electronic monitoring programs throughout the Midwest, agrees. “Research has clearly shown that the longer the period of sobriety, the more likely it is you’ll have long-term behavior change with alcohol and drug-addicted individuals,” says Nienhouse. “We now see Hard Core Drunk Driver programs requiring 365 days of sobriety, enforced with SCRAMx monitoring, while offenders go through treatment and other court-ordered interventions.” Nienhouse credits the success in Champaign and Macon counties to the implementation of comprehensive, tough and well-managed DUI programs that send a signal to the community that DUIs are not going to be taken lightly.

“Nearly 75% of their SCRAMx clients are fully compliant while they’re monitored. The high compliance rate and the fact that, to our knowledge, no SCRAMx offender in this area has been re-arrested for a DUI, demonstrates that these jurisdictions are moving in the right direction,” he says. According to the Century Council, Hard Core Drunk Drivers are defined as drivers with two or more DUI arrest or a high Blood Alcohol Content (BAC) at the time of arrest. They account for more than 40% of all drunk driving convictions every year in the U.S.

An added benefit of the area’s sobriety programs is that offenders are required to pay for all or a significant portion of their daily monitoring fees. “These counties are seeing results from solid monitoring and offender accountability, and it’s at no cost to taxpayers,” adds Nienhouse. To-date, more than 3,600 offenders have been monitored statewide with SCRAMx.

SCRAMx first became available to the criminal justice system in 2003. To- date the system has monitored more than 190,000 offenders in 48 states. The technology is used to monitor repeat, Hard Core Drunk Drivers, as well as domestic violence offenders and as a supervision tool in family courts.

DuPage County DUI No Refusal Weekend Challenged

September 9th, 2011 at 2:42 pm

Below is the press release issued by the prosecutors of DuPage, claiming that the County ‘enjoys’ having their citizen’s rights abused. The State’s Attorney is quoted as saying: “Our office has received overwhelmingly positive feedback from the police departments throughout the County, and we will likely organize this type of initiative again in the near future in hopes of discouraging people from drinking and driving.”

It is not against the law to drink and drive in Illinois. It is the duty of the prosecutors to PROTECT persons who engage in lawful activities; not to harass them.

Ramsell & Associates will be representing and defending any persons whose rights were wrongfully violated. If you or a loved one were arrested, stopped, or otherwise ticketed, call us at 630-665-8780 to determine your rights.

In fact, it appears as if the program was illegallly run. The
press release states: “A licensed phlebotomist was on hand to draw the
arrestee’s blood for chemical testing following the issuance of a search
warrant.”
In a non-sterile environment? That by itself is illegal. Cathee
Tankersley, the director of the Phoenix College Law Enforcement Phlebotomy
course, would probably agree that it’s a good idea to draw blood in a sterile
environment. According to her textbook, health care facilities are required by
OSHA to disinfect the areas where blood is drawn once every eight hours. Why?
Because it’s important that patients not be put at risk of contracting
bacterial and other infections, like HIV and Hepatitis B and C. “

In several other Phlebotomy websites, it states:

Quality control is also very important for hospital phlebotomists, since it’s essential
that they don’t allow a sample to become contaminated. They must make sure that
all of their equipment has been sanitized, and that they are able to draw blood
from the patient in a sterile environment. Since contamination of the blood
sample could result in inaccurate laboratory test results, the job of a
phlebotomist is absolutely essential.

Here is what the US Supreme Court said in Schmerber v. California, when they approved
of warrantless blood draws for alcohol:

“We are thus not presented with the serious questions which would arise if a search
involving use of a medical technique, even the most rudimentary sort, were made
by other than medical personnel or in other than a medical environment-for
example, if it were administered by police in the privacy of the stationhouse.
To tolerate searches under these conditions might be to invite an unjustified
element of personal risk of infection or pain.”

Here is the press release:

DuPage County Enjoys Successful “No Refusal”

Labor Day Weekend

 

One arrestee had been arrested five previous times for
DUI

 

WHEATON
DuPage County State’s Attorney Robert B. Berlin and DuPage County Sherriff John
Zaruba announced today that the DuPage County Labor Day No Refusal Weekend was
an overwhelming success.
The County-wide “No Refusal Weekend,” was designed to combat the increasing
number of arrestees who refuse to submit to a breathalyzer following an arrest
for Driving Under the Influence. To further that goal, search warrants were
sought for anyone pulled over and arrested for DUI who refused to submit to a
breathalyzer in DuPage County over Labor Day Weekend. A licensed phlebotomist
was on hand to draw the arrestee’s blood for chemical testing following the
issuance of a search warrant.
A total of six search warrants were issued over the weekend for arrestees who
refused the breathalyzer. Of the six arrestees, only one was a first time
suspected DUI offender. In addition, of the six arrestees, three were third
time offenders, two had three DUI arrests in 2011 alone and three had suspended
or revoked licenses for a prior DUI.
In one case a warrant was issued for an arrestee who had been arrested five
previous times for DUI.  Of this arrestee’s five prior DUI arrests, he had
only one disposition of court supervision in 2001. This arrestee also refused
all field sobriety testing in addition to refusing the breathalyzer.
“A five-time repeat DUI offender with only one guilty finding on his record is
a person who clearly thinks that the DUI laws don’t apply to him,” Berlin said.
“This is someone who is a clear danger to our community.”
Throughout the No Refusal initiative, approximately 70 DUI arrests were made
across DuPage County. Approximately 90% of those arrestees submitted to the
breathalyzer without the issuance of a search warrant. This percentage is much
higher than Illinois average of approximately 50% during a non-initiative time
frame.
“When you look at the statistics of the Labor Day DUI arrests, there is no
denying the positive impact our No Refusal weekend had on the community,”
Berlin said. “Our office has received overwhelmingly positive feedback from the
police departments throughout the County, and we will likely organize this type
of initiative again in the near future in hopes of discouraging people from
drinking and driving.”

Posted in Illinois DUI Laws

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