People v. Smith

2013 IL App (2d) 121164
No. 2-12-1164
Opinion filed November 20, 2013
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellant, )
)
v. ) No. 12-CF-169
)
GEORGE SMITH, ) Honorable
) Timothy Q. Sheldon,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Jorgensen and Hudson concurred in the judgment and opinion.

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
2013 IL App (2d) 121164

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had been entered when his driver’s license had already been revoked.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 Defendant further argued that his license had been revoked for a reason other than those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,

-2-
2013 IL App (2d) 121164

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).1 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

1
At present, each of the prior convictions must also have occurred while the defendant’s

license was suspended or revoked for one of these reasons. See Pub. Act 98-0418, § 5 (eff. Aug. 16,

2013) (amending 625 ILCS 5/6-303(d-2), (d-3), (d-4), (d-5)); Pub. Act 98-0573, § 5 (eff. Aug. 27,

2013) (amending 625 ILCS 5/6-303(d-2), (d-3), (d-4), (d-5)).

-3-
2013 IL App (2d) 121164

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

-4-
2013 IL App (2d) 121164

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 (see State Farm

Mutual Auto Insurance Co. v. McFadden, 2012 IL App (2d) 120272, ¶ 9), we are not bound to do

so. Our supreme court has noted:

-5-
2013 IL App (2d) 121164

“ ‘ “[ S]tare decisis requires courts to follow the decisions of higher courts, but does not bind

courts to follow decisions of equal or inferior courts.” ’ [Citation.] Thus, the opinion of one

district, division, or panel of the appellate court is not binding on other districts, divisions,

or panels. [Citation.]” O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d

421, 440 (2008).

Although we are not obligated to follow Heritsch, it is “a decision from another panel of a court of

equal stature” (In re Marriage of Gutman, 232 Ill. 2d 145, 150 (2008)), and we therefore lack the

power to grant the State’s request to abrogate it (id.).

¶8 The issue on appeal—whether, for purposes of the DWLS law, driving privileges that have

been revoked are subject to statutory summary suspension while the revocation remains in effect—is

principally one of statutory construction. Our supreme court has recently offered the following

summary of the basic principles that guide our analysis:

“It is well settled that issues of statutory construction are questions of law subject to

de novo review. [Citation.] When construing a statute, this court’s primary objective is to

ascertain and give effect to the legislature’s intent, keeping in mind that the best and most

reliable indicator of that intent is the statutory language itself, given its plain and ordinary

meaning. [Citation.] In determining the plain meaning of the statute, we consider the subject

the statute addresses and the legislative purpose in enacting it. [Citation.] This court has

repeatedly held that statutes should be read as a whole and construed so that no part is

rendered meaningless or superfluous. [Citation.] In doing so, we may consider the statute’s

context, reading the provision at issue in light of the entire section in which it appears, and

the Act of which that section is a part. [Citations.]” People v. Lloyd, 2013 IL 113510, ¶ 25.

-6-
2013 IL App (2d) 121164

¶9 When the language of a statute is clear and unambiguous, courts may not depart from the

language by incorporating exceptions, limitations, or conditions that the General Assembly did not

express. Wilkins v. Williams, 2013 IL 114310, ¶ 22. However, “the task of interpreting the language

of a statute cannot always be reduced to ‘the mechanical application of the dictionary definitions of

the individual words and phrases involved,’ ” so courts must take care “not to read statutory language

in an overly literal manner.” People v. Wood, 379 Ill. App. 3d 705, 708-09 (2008) (quoting Whelan

v. County Officers’ Electoral Board, 256 Ill. App. 3d 555, 558 (1994)). To similar effect, our

supreme court has observed that “[a] statute or ordinance must receive a sensible construction, even

though such construction qualifies the universality of its language.” In re Illinois Bell Switching

Station Litigation, 161 Ill. 2d 233, 246 (1994). For these reasons, “[a] literal interpretation is not

controlling where the spirit and intent of the General Assembly in enacting a statute are clearly

expressed, its objects and purposes are clearly set forth, and a literal interpretation of a particular

clause would defeat the obvious intent [citation]; where literal enforcement of a statute will result

in great injustice that was not contemplated by the General Assembly [citation]; or where a literal

interpretation would lead to an absurd result [citation].” Grever v. Board of Trustees of the Illinois

Municipal Retirement Fund, 353 Ill. App. 3d 263, 266-67 (2004).

¶ 10 Pursuant to section 1-176 of the Code, “revocation” of a driver’s license means “[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.” 625 ILCS 5/1-176 (West 2012).

-7-
2013 IL App (2d) 121164

¶ 11 If the statutory definition of “revocation”—the “termination *** of a person’s license or

privilege to operate a motor vehicle” (emphasis added) (625 ILCS 5/1-176 (West 2012))—is given

its most literal meaning, the argument that revocation is a singular occurrence might appear to be an

ontological truism: after one’s license or privilege to operate a vehicle is terminated, it no longer

exists and therefore cannot again be terminated. By the same logic, a revoked license could not be

suspended either. It is reasonably clear from examination of the Code as a whole, however, that the

General Assembly did not intend for the term “revocation” to be read so literally. To the contrary,

“revocation” appears to be used, in part, as a term of art that refers to a formal act of the Secretary

and its attendant legal consequences. Thus, section 6-205(a) places no express limitation on the

number of times the Secretary may revoke a driver’s license. Nor does section 6-205(a) expressly

limit revocation to cases where no prior revocation is in effect.

¶ 12 Other Code provisions support our conclusion that the revocation of a driver’s license does

not preclude the future revocation or suspension of the same license. For instance, section 6-

208(b)(1.5) of the Code formerly provided, “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.) 625 ILCS 5/6-208(b)(1.5) (West 2008). The words “most recent”

would have been superfluous if the revocation of a driver’s license were a singular occurrence. See

Heritsch, 2012 IL App (2d) 090719, ¶ 40 (Birkett, J., dissenting). Section 6-205(c)(2) of the Code

provides, “If a person’s license or permit is revoked or suspended due to 2 or more convictions of

-8-
2013 IL App (2d) 121164

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 or the Criminal Code of 2012,

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 restricted driving permit, may not operate a vehicle

unless it has been equipped with an ignition interlock device as defined in Section 1-129.1.”

(Emphasis added.) 625 ILCS 5/6-205(c)(2) (West 2012). To hold that revocation is a singular

occurrence would make this provision meaningless. See Heritsch, 2012 IL App (2d) 090719, ¶ 40

(Birkett, J., dissenting).

¶ 13 Not only is the literal interpretation of “revocation” in conflict with the usage of that term

in sections 6-205(c)(2) and 6-208(b)(1.5), the literal interpretation leads to absurd results. The Fifth

District recognized as much in People v. Masten, 219 Ill. App. 3d 172 (1991). In that case, the

defendant’s Illinois driver’s license was revoked in 1976, and between 1976 and 1983 he was

convicted on three occasions of driving while his license was revoked. In May 1989, the Secretary

ordered the statutory summary suspension of the defendant’s still-revoked driver’s license for a six-

month period. In June 1989, the defendant obtained a Virginia driver’s license. In 1990, the

defendant was charged with DWLR. The trial court dismissed that charge, evidently because the

defendant held a Virginia license at the time of the offense. However, Virginia, like Illinois, was a

party to the Driver’s License Compact (Compact) (see 625 ILCS 5/6-700 through 6-708 (West

2012)), which bars a party state from issuing a license to an individual while a license issued by

another party state is suspended (625 ILCS 5/6-704 (West 2012)). In reversing the dismissal of the

charge, the Masten court reasoned as follows:

-9-
2013 IL App (2d) 121164

“The question before us is whether defendant’s license should be considered ‘suspended’,

thereby rendering the issuance of the Virginia license invalid under the Compact. We

conclude that defendant’s license was in fact ‘suspended’ on June 9, 1989, that defendant’s

Virginia license was invalid under the Compact, and that the trial court improperly dismissed

the driving while license revoked charge. Were we to hold otherwise, it would lead to the

absurd result that one whose license has 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 174-75.

¶ 14 The Masten court “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.” Heritsch, 2012 IL App (2d) 090719, ¶ 50

(Birkett, J., dissenting). That understanding is at least implicit in cases such as People v. Yaworski,

2011 IL App (2d) 090785, ¶ 8 (noting that the abstract of the defendant’s driving record showed that

his license was revoked pursuant to section 6-205(a)(2) of the Code on August 6, 2005, and again

on August 12, 2005, and that “the revocations” (emphasis added) were in effect when the defendant

committed his seventh DUI, thereby enhancing that offense to a Class 2 felony under section 11-

501(c-1)(3) of the Code (625 ILCS 5/11-501(c-1)(3) (West 2004))), and People v. Smith, 162 Ill.

App. 3d 739, 741 (1987) (“At 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.”).

¶ 15 Here, defendant would have us hold, contrary to Masten, that, because of the revocation of

his license, he had no license that could be subject to a statutory summary suspension. By dint of

-10-
2013 IL App (2d) 121164

that reasoning, a driver whose license is revoked and never reissued would have no incentive to

comply with the implied consent law. Such a driver, if arrested for DUI, could, without

consequence, refuse the chemical testing provided for by the implied consent law and could

theoretically apply for a new driver’s license during the period when an otherwise similarly situated

licensed driver would be prohibited from driving. It is inconceivable that the General Assembly

intended such an utterly incongruous result. Moreover, under the analysis that defendant advocates,

a DUI conviction in such a case would not preclude the defendant from immediately applying for

a new license. Such a result “makes a mockery of the law.” Heritsch, 2012 IL App (2d) 090719,

¶ 59 (Birkett, J., dissenting).

¶ 16 Our conclusion also finds support in our decision in People v. Odumuyiwa, 188 Ill. App. 3d

40 (1989). In that case, the defendant was convicted of DWLS. The record showed that the

defendant’s license had been cancelled about two weeks before it was suspended. The defendant

argued that, because the cancelled license was no longer in force, the suspension of the license was

a null act. We disagreed, seeing “no reason why these two actions [the cancellation and the

suspension of the defendant’s license] by the Secretary should be considered mutually exclusive or

logically inconsistent.” Id. at 45.

¶ 17 During the pendency of this appeal, our General Assembly amended section 6-303. See Pub.

Act 98-0418, § 5 (eff. Aug. 16, 2013); Pub. Act 98-0573, § 5 (eff. Aug. 27, 2013). Among other

things, the General Assembly added subsection (a-10), which provides:

“A person’s driver’s license, permit, or privilege to obtain a driver’s license or permit may

be subject to multiple revocations, multiple suspensions, or any combination of both

simultaneously. No revocation or suspension shall serve to negate, invalidate, cancel,

-11-
2013 IL App (2d) 121164

postpone, or in any way lessen the effect of any other revocation or suspension entered prior

or subsequent to any other revocation or suspension.” Pub. Act 98-0418, § 5 (eff. Aug. 16,

2013); Pub. Act 98-0573, § 5 (eff. Aug. 27, 2013).

Defendant argues that the amendment is presumed to change the law as it previously existed and that

the amendment represents the General Assembly’s “tacit acceptance of the [Heritsch] majority’s

interpretation of the statute, insofar as the legislature took efforts to correct what it perceived to be

a defect in the statute.” To accept that reasoning, however, would create a catch-22 for the General

Assembly; it is clear that, had the General Assembly amended section 6-303 without adding

subsection (a-10), or other language to that effect, defendant would have been able to argue that the

failure to amend the statute represented legislative acquiescence in the Heritsch majority’s

interpretation. See, e.g., People v. Downs, 371 Ill. App. 3d 1187, 1191 (2007) (“It is axiomatic that

where a statute has been judicially construed and the construction has not evoked an amendment,

it will be presumed that the legislature has acquiesced in the court’s exposition of the legislative

intent.”). Thus, although amendatory acts are ordinarily presumed to change the law, “that

presumption is overcome where the nature of [the] amendment suggests that its drafters intended to

interpret or clarify the original statute.” Friedman v. Krupp Corp., 282 Ill. App. 3d 436, 444 (1996).

The nature of the amendment in this case suggests clarification of the General Assembly’s

preexisting intent and a repudiation of the interpretation adopted by the Heritsch majority.

¶ 18 We note that the General Assembly has had occasion in the past to clarify its intent with

regard to section 6-303’s sentencing scheme. Prior to August 10, 2001, section 6-303(d) provided,

“Any person convicted of a second or subsequent violation of this Section shall be guilty of a Class

4 felony if the original revocation or suspension was for a violation of Section 11-401 or 11-501 of

-12-
2013 IL App (2d) 121164

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.”

(Emphases added.) 625 ILCS 5/6-303(d) (West 2000). The General Assembly deleted the

emphasized words when it amended the statute to add subsections (d-1) through (d-3) (which

provided further escalation of the penalties for repeat offenders). See Pub. Act 92-340, § 5 (eff. Aug.

10, 2001). In People v. Bloomberg, 378 Ill. App. 3d 686 (2008), the court relied on the deletion of

the word “original” to uphold a Class 4 felony conviction for a motorist whose first violation of

section 6-303 did not occur while his license was suspended or revoked for one of the specified

reasons. The Bloomberg court rejected the defendant’s argument that its reading led to an unjust and

absurd result. Id. at 688-89. Thereafter, however, the General Assembly promptly restored the word

“original” to section 6-303(d) (see Pub. Act 95-991, § 5 (eff. June 1, 2009)), recognizing 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.” Heritsch, 2012 IL App (2d) 090719, ¶ 34

(Birkett, J., dissenting). Section 6-303(d-5), in contrast, has never expressly conditioned the penalty

on the reason for the “original” revocation or suspension. This distinction between section 6-303(d)

and section 6-303(d-5) makes it all the more clear that: (1) in cases of multiple revocations or

suspensions, the latter provision was always meant to apply without regard to the reason for the

“original” revocation or suspension and (2) the recent amendment of section 6-303(d-5) was a

reaction to Heritsch’s erroneous interpretation of that provision.

-13-
2013 IL App (2d) 121164

¶ 19 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and

the cause is remanded for further proceedings.

¶ 20 Reversed and remanded.

-14-