ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Heritsch, 2012 IL App (2d) 090719
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KENNETH HERITSCH, Defendant-Appellant.
District & No. Second District
Docket No. 2-09-0719
Filed June 28, 2012
Held Where defendant’s driver’s license was revoked in 1991 for his use of a
(Note: This syllabus car to commit a drug-related felony and he “never got his license back,”
constitutes no part of but his license was revoked again in 2001 because of a DUI, he was
the opinion of the court improperly convicted in 2008 of aggravated driving with a revoked
but has been prepared license, since the statute provides for only one revocation of a driver’s
by the Reporter of license, defendant’s 1991 revocation was not based on a DUI violation,
Decisions for the he was only guilty of driving with a revoked license, and the 2001
convenience of the revocation had no effect where defendant had not been issued a new
reader.)
license; therefore, the cause was remanded for resentencing on the
reduced conviction of driving with a revoked license.
Decision Under Appeal from the Circuit Court of Winnebago County, No. 08-CF-4179;
Review the Hon. Richard A. Lucas, Judge, presiding.
Judgment Affirmed as modified; cause remanded.
Counsel on Thomas A. Lilien and Darren E. Miller, both of State Appellate
Appeal 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.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justice McLaren concurred in the judgment and opinion.
Justice Birkett dissented, with opinion.
OPINION
¶1 After a stipulated bench trial, defendant, Kenneth Heritsch, was convicted of aggravated
driving with a revoked or suspended license (DWLR) (625 ILCS 5/6-303(d-5) (West 2008)).
He was sentenced as a Class X offender (see 730 ILCS 5/5-5-3(c)(8) (West 2008)) to six
years’ imprisonment. Defendant was also convicted of operating an uninsured motor vehicle
(625 ILCS 5/3-707 (West 2008)) but was not separately sentenced for that offense.
Defendant appeals, arguing that his conviction of aggravated DWLR cannot stand, because
the State did not prove the aggravating factor, that defendant’s license had been revoked for
a violation of section 11-501 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501
(West 2008)). We agree with defendant, affirm his conviction of operating an uninsured
motor vehicle, reduce his conviction of aggravated DWLR to DWLR (625 ILCS 5/6-303(a)
(West 2008)), and remand for sentencing on both convictions.
¶2 The indictment against defendant alleged that, on October 18, 2008, he drove on a
highway while his license was revoked (625 ILCS 5/6-303(a) (West 2008)) and that, because
“said revocation [was] for a violation of 625 ILCS 5/11-501,” that is, driving under the
influence of alcohol (DUI), and defendant had at least 14 prior convictions of DWLR, he had
violated section 6-303(d-5) of the Code. Section 6-303(d-5) reads:
“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
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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 arguing that he
could not be convicted of aggravated DWLR as charged. The trial court denied the motion,
and defendant timely appealed.
¶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
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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.” 625 ILCS 5/1-176 (West 2008); see also People v. Suddoth, 52 Ill. App. 2d 355,
359 (1964) (defining “revocation”). A revoked license is terminated from the date of its
revocation. Suddoth, 52 Ill. App. 2d at 358. In the present case, defendant’s driver’s license
had been revoked, or terminated, since 1991.
¶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 no effect because the Secretary had never issued defendant a new license.
¶ 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) (625 ILCS
5/6-303(d-5) (West 2008)), implying that there is only one pertinent triggering event.
Therefore, the 1991 revocation of defendant’s license to which section 6-303(d-5) refers was
not based on a triggering event in section 6-303(d-5). Accordingly, the State proved that
defendant committed only the offense of DWLR and not the offense of aggravated DWLR.
¶ 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
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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 offense. I believe that the motion to withdraw should have been granted because, as I
explain below, defendant’s argument has no merit.
¶ 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 625 ILCS 5/6-303
said revocation being for a violation of 625 ILCS 5/11-501.” The trial court said at trial that
it was a sentencing issue. During the sentencing hearing the court found defendant to be
Class X eligible. Defense counsel filed a motion to reconsider on May 14, 2009. In the
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motion, defendant merely reasserted that he was “not revoked due to driving under the
influence.” Again, there was no authority cited.
¶ 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 (625 ILCS 5/6-303(d-5) (West 2008)) and then applies section 1-176 of the Code
(625 ILCS 5/1-176 (West 2008)), concluding that until a new license is issued there can be
only one revocation. That narrow interpretation ignores the clear intent of the legislature and
it is at odds with numerous provisions of the Code, only some of which I will discuss. It must
be remembered that section 6-303(d-5) is a sentencing enhancement. People v. Nunez, 236
Ill. 2d 488, 499 (2010). The State was required to identify “the revocation” in the indictment,
along with the requisite number of convictions. The certified abstract introduced into
evidence established the DUI revocation and the convictions. Defendant never challenged
the abstract’s accuracy. In the absence of such a challenge, the abstract’s contents are deemed
accurate. People v. Meadows, 371 Ill. App. 3d 259, 263 (2007).
¶ 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 (625 ILCS 5/6-205(a)(2) (West 2000)). The abstract reflects that this
revocation remained in effect at the time of the instant offenses. Defendant argues that,
despite these facts, the unambiguous language of the enhanced sentencing provision of
section 6-303(d-5) of the Code (625 ILCS 5/6-303(d-5) (West 2008)) does not apply to him,
because the term “the revocation” as used in the provision refers to a single revocation, and,
since defendant’s driver’s license had been revoked for a non-DUI offense at the time of his
October 11, 2001, DUI revocation, “there was no driver’s license to revoke.” Defendant
reasons that the statute cannot refer to multiple revocations, because that is “only possible
if a revoked driver’s license can subsequently be revoked.” Alternatively, defendant argues
that, if the term “the revocation” as used in section 6-303(d-5) of the Code is ambiguous, the
rule of lenity mandates a finding that the enhanced sentencing provision does not apply to
him and that his conviction should be modified to misdemeanor DWLR and that he should
be sentenced accordingly. Id.
¶ 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
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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 with that
purpose. Id. We also consider the regulations that guide the return of driving privileges
following revocation. These regulations are promulgated by the Secretary of State and have
the force and effect of law. Youle v. Edgar, 172 Ill. App. 3d 498, 503-04 (1988).
¶ 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). 625 ILCS 5/6-303(a), (d-5) (West
2008). Those sections provide, in pertinent part:
“§ 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
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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 625 ILCS 5/6-303 said revocation being for a violation of 625 ILCS 5/11-501.”
(Emphasis added.) The indictment goes on to list defendant’s 14 prior convictions of DWLR,
in violation of section 6-303(d-5) of the Code. 625 ILCS 5/6-303(d-5) (West 2008).
Defendant is correct that he did not have a license to revoke. However, “the term ‘license to
drive’ encompasses two distinct meanings: (1) the physical document itself, and (2) the
abstract or intangible privilege of driving.” People v. Odumuyiwa, 188 Ill. App. 3d 40, 44
(1989).
¶ 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.) 625 ILCS 5/6-303(a) (West 2008). The Secretary of State is mandated to
keep records of “all licenses and permits refused, cancelled, disqualified, revoked, or
suspended and of the revocation, suspension, and disqualification of driving privileges of
persons not licensed under this Chapter, and such records shall note the reasons for such
action.” 625 ILCS 5/6-117(b) (West 2008). The Secretary also maintains records of
convictions reported by the courts. 625 ILCS 5/6-117(c) (West 2008). The courts provide the
Secretary with records of convictions because these records are essential to the performance
of the Secretary’s duties “to cancel, revoke or suspend the driver’s license and privilege to
drive motor vehicles” (emphasis added) (625 ILCS 5/6-204(a) (West 2008)) and “[f]or the
purpose of providing the Secretary of State with records necessary to properly monitor and
assess driver performance and assist the courts in the proper disposition of repeat traffic law
offenders” (emphasis added) (625 ILCS 5/6-204(d) (West 2008)).
¶ 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 625 ILCS 5/6-204(a)(1) (West 2008). Upon
receiving a report of conviction of DUI, the Secretary enters a mandatory revocation of the
“license, permit, or driving privileges” of the defendant. See 625 ILCS 5/6-205(a)(2), 11-
501.1(d) (West 2008). These provisions contain no exceptions or limitations for drivers who
are already revoked when the convictions are reported, and we may not depart, as the
majority does in this case, from the plain language of these provisions by reading into them
“exceptions, limitations, or conditions that conflict with the expressed intent.” (Internal
quotation marks omitted.) People v. Cardamone, 232 Ill. 2d 504, 516 (2009).
¶ 27 Contrary to the majority’s analysis, the term “the revocation” in section 6-303(d-5) of the
Code (625 ILCS 5/6-303(d-5) (West 2008)) refers not just to the physical license to drive but
also to the “abstract or intangible privilege of driving” (Odumuyiwa, 188 Ill. 2d at 44), as
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well as to the “privilege to obtain a driver’s license or permit” (625 ILCS 5/6-303(a) (West
2008)). While defendant’s driver’s license and privilege to drive were already revoked when
he was convicted of and revoked again for DUI in 2001, the entry of an order of revocation
for DUI on defendant’s driving record resulted in additional obstacles for him in the event
that he ever applied for a new license. Every applicant for a license must state whether his
or her license has “ever been cancelled, suspended, revoked or refused, and, if so, the date
and reason for such cancellation, suspension, revocation or refusal.” 625 ILCS 5/6-106(b)
(West 2008). As our supreme court explained in People v. Turner, 64 Ill. 2d 183, 186-87
(1976):
“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 92 Ill. Adm. Code 1001.430 (2012). When a person, like defendant, has lost his or
her driving privileges for an alcohol-related reason, he or she “must prove he does not have
a current problem with alcohol, he is a low or minimal risk to repeat past abusive behavior
and operate a motor vehicle while under the influence of alcohol, he has complied with all
other standards as specified in the regulations, and the granting of driving privileges will not
endanger public safety or welfare.” Grams v. Ryan, 263 Ill. App. 3d 390, 396 (1994); see 92
Ill. Adm. Code 1001.420(e), 1001.430(c), 1001.440(b) (2012).
¶ 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.” 92 Ill. Adm. Code
1001.440 (2012). Before any driving relief will be granted by the Secretary, an administrative
hearing must be held where the burden is on the petitioner to prove by clear and convincing
evidence that he or she does not have a current problem with alcohol or other drugs and that
he or she is at a low or minimal risk to repeat his or her past abusive behavior. 92 Ill. Adm.
Code 1001.440(b) (2012). According to defendant’s argument and the majority’s
interpretation, he could avoid these requirements because his license was not revoked for
DUI. This interpretation would justify a person in defendant’s position omitting a DUI
revocation from his or her application for a new license. The law provides that an applicant
must disclose “whether any such license has ever been *** revoked *** and, if so, the date
and reason for such *** revocation.” (Emphasis added.) See 625 ILCS 5/6-106(b) (West
2008). The majority observes that its holding “appears to place defendant in a better position
than he would have been had his license not been revoked until 2001” and that “it is up to
the legislature to correct that problem.” Supra ¶ 11. This reasoning is inconsistent with the
principle that in construing a statute we not only consider the “the reason and necessity for
the law, the evils sought to be remedied, and the purpose to be achieved,” but “we also
presume that the General Assembly, in its enactment of legislation, did not intend absurdity,
inconvenience or injustice.” People v. Botruff, 212 Ill. 2d 166, 175 (2004) (citing Pullen, 192
Ill. 2d at 42, and Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504
(2000)).
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¶ 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. 720 ILCS 5/36-1 (West 2008). Section
6-303(g) of the Code provides:
“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 625 ILCS 5/6-303(d) (West 2006). Section 6-303(d) is the sentencing
enhancement provision that elevates driving on a suspended or revoked license or privilege
from a Class A misdemeanor to a Class 4 felony for a person convicted of a second violation
of section 6-303 (id.). At the time of Bloomberg’s offense, subsection (d) read as follows:
“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 (625 ILCS 5/11-501.1 (West 2006)). Bloomberg had previously
been sentenced to a term of court supervision for driving while his license was suspended
(DWLS) in 1998. Bloomberg argued that he should not be sentenced pursuant to section 6-
303(d), but the trial court disagreed and sentenced him pursuant to that section (625 ILCS
5/6-303(d) (West 2006)). On appeal, Bloomberg pointed to the prior version of the statute
“as support for his contention that the trial court’s interpretation improperly allows him to
be sentenced for a felony for his first DWLS conviction following an enhanced suspension
if he had any past DWLS violation, regardless of its basis.” Bloomberg, 378 Ill. App. 3d at
688. The prior version of section 6-303(d) under which Bloomberg had received a sentence
of court supervision required proof that the “original revocation or suspension” was for,
among other things, “a violation of Section *** 11-501 of this Code *** or a statutory
summary suspension under section 11-501.1 of this Code.” 625 ILCS 5/6-303(d) (West
1998). The appellate court agreed with the trial court and found that Bloomberg was properly
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sentenced under the provisions of subsection (d). In doing so, the court said:
“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 rendered superfluous. People v. Gutman, 2011 IL
110338, ¶ 12.
¶ 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
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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 625 ILCS 5/6-303(b) (West 2006). I would also point out that defendant did in fact
attempt to get a new license in 1996. He did so by providing false information on the
application. The Secretary of State then revoked defendant’s driving privileges by entry of
an order of revocation pursuant to section 6-206(a)(9) of the Code, which, like his other
revocations, remained in effect on October 8, 2008, as reflected in defendant’s driving
abstract. 625 ILCS 5/6-206(a)(9) (West 1996). The abstract also reveals that on September
3, 1996, the Secretary of State cancelled defendant’s driving privileges pursuant to section
6-201(a)(5) of the Code. 625 ILCS 5/6-201(a)(5) (West 1996).
¶ 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 625 ILCS 5/6-206(A), 6-303(c-4) (West 2008). Such a reading is clearly at odds with the
legislative intent, which is to keep drunk drivers off the road. See 625 ILCS 5/1-129 (West
2008) (an ignition interlock device prevents a vehicle from starting until analysis of the
driver’s breath shows that his or her blood alcohol level is below a certain level).
¶ 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 convicted
of DWLS or DWLR. The first set of penalties applies to persons who are convicted while
their licenses are suspended or revoked but not for leaving the scene of a personal injury
accident (625 ILCS 5/11-401 (West 2006)), DUI (625 ILCS 5/11-501 (West 2006)), a
statutory summary suspension (625 ILCS 5/11-501.1 (West 2006)), or reckless homicide
(720 ILCS 5/9-3 (West 2006)). See Kennedy, 372 Ill. App. 3d at 308-09. The second set of
penalties applies to persons who have been convicted of DWLS or DWLR and the
suspensions or revocations were the result of violations of section 11-401, 11-501, or 11-
501.1 of the Code, or of section 9-3 of the Criminal Code of 1961. 625 ILCS 5/11-401, 11-
501, 11-501.1 (West 2006); 720 ILCS 5/9-3 (West 2006); Kennedy, 372 Ill. App. 3d at 309.
¶ 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.” 625 ILCS 5/6-303(d-3) (West 2004). The court held that
subsection (d-3) was not ambiguous, referring to section 6-303 of the Code. The court
explained that, “if the legislature had intended to condition a Class 4 felony on the
commission of four or more violations of subsection (d-3), it could have so stated.” Kennedy,
372 Ill. App. 3d at 308.
¶ 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
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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.
625 ILCS 5/6-208(b)(1.5) (West 2008). That section provides as follows:
“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 (625 ILCS 5/6-204 (West 2008))
and the mandatory revocation of licenses by the Secretary of State (625 ILCS 5/6-205 (West
2008)) apply regardless of whether a person is already under a suspension or revocation. See
Stewart v. Ryan, 229 Ill. App. 3d 912, 914 (1992) (an already revoked driver was “again
mandatorily revoked” for DUI).
¶ 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.” 625 ILCS 5/6-303(a) (West 2008).
Defendant’s driving abstract clearly stated that, at the time of his arrest in this case,
defendant’s driving privilege to obtain a license was revoked for DUI and he had been
convicted of violating section 6-303(a) of the Code on at least 14 prior occasions. The
language of section 6-303(a) is in accord with the Code’s definition of “License to Drive,”
which states:
“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.
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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 11-501of the
Vehicle Code and he had been previously convicted of a violation of Section 6-303 of
the Vehicle Code on May10, 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
one advanced by defendant here. Odumuyiwa was convicted of both unlawful use of a
driver’s license (Ill. Rev. Stat. 1985, ch. 95½, ¶ 6-301) and DWLS (Ill. Rev. Stat. 1985, ch.
95½, ¶ 6-303). Odumuyiwa argued that, when the Secretary of State suspended his license,
his driver’s license had already been cancelled. Odumuyiwa argued that the “purported
suspension must be regarded as a null act, the license having already been cancelled.”
(Internal quotation marks omitted.) Odumuyiwa, 188 Ill. App. 3d at 42. We agreed with the
State that the Secretary “may suspend a driver’s current driving privilege even after a driver’s
license has been previously cancelled, noting that there is no case law or statutory authority
preventing him from doing so.” (Emphasis added.) Id. at 43. We also said, “we see no reason
why the Secretary, in addition to cancelling a license, may not also suspend a person’s
driving privilege thereby preventing a driver from applying for or reinstating a license during
a specific period of time.” Id.
¶ 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
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(Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-303) and with felony DUI in violation of sections 11-
501(a)(2) and (d)(2) (Ill. Rev. Stat. 1989, ch. 95½, ¶ 11-501(a)(2), (d)(2)). Masten had been
convicted of DUI and revoked for that offense in 1976. He was later convicted of DWLR
three times, the latest being in 1983. On April 7, 1989, Masten pled guilty in Montgomery
County, Illinois, to DUI, but he was never sentenced on that charge. Masten’s driving
abstract revealed that he was under a statutory summary suspension from May 13, 1989,
through November 13, 1989. Masten obtained a Virginia driver’s license on June 9, 1989.
The trial court dismissed the charges because Masten had a Virginia driver’s license, and it
found that since no sentence was imposed on the 1989 DUI he was not eligible for a felony
sentence. The Fifth District Appellate Court reversed the trial court’s dismissal of both
charges. The felony enhancement provision for DWLR under subsection (d) at the time of
Masten’s arrest provided that “[a]ny 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 this Code.” Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-
303(d). The court reiterated that, “[w]hen a defendant’s driver’s license has been revoked,
he is not permitted to drive in Illinois until he obtains a license in compliance with the
Illinois Vehicle Code.” Masten, 219 Ill. App. 3d at 174.
¶ 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 Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-704(2). Unfortunately for Masten, even
though well over a year had passed from the date of the revocation, the compact also
provided that “a party-State may not grant a driver’s license to a person who has a party-
State’s license suspended until the suspension period has ended.” Masten, 219 Ill. App. 3d
at 174; see Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-704(1).
¶ 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
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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 (625
ILCS 5/11-501(a)(2) (West 2004)). The trial court imposed a Class 2 felony sentence. 625
ILCS 5/11-501(c-1)(3) (West 2004). Yaworski was found to be eligible for Class 2
nonprobationable felony sentencing because he committed his fourth DUI when he was
revoked for a violation of section 11-501(a) of the Code. On appeal, Yaworski challenged
the evidence offered to enhance his sentence. Yaworski argued that the State had not proven
the “cause of the revocation.” We held:
“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. 625 ILCS 5/11-501(d)(1)(H) (West 2008). At the time of his arrest,
Rosenbalm’s license was being held as bond in another case and it had expired. He was
unable to renew his license because he had outstanding traffic fines in other cases.
Rosenbalm’s motion to dismiss was denied. After a stipulated bench trial, the trial court
imposed a Class 4 felony sentence. Rosenbalm maintained that he was not eligible for the
felony enhancement because the statute reads, “the person committed the violation while he
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or she did not possess a driver’s license or permit or a restricted driving permit or a judicial
driving permit” (625 ILCS 5/11-501(d)(1)(H) (West 2008)) and at the time of his arrest he
had a driver’s license but it just was invalid because it had expired. Rosenbalm, 2011 IL App
(2d) 100243, ¶ 9. We rejected this argument and upheld Rosenbalm’s conviction. We said,
“[a]lthough, 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.” Id. ¶ 9. We
noted that, contrary to Rosenbalm’s argument (and defendant’s arguments in this case), “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 this permission, not the card, that
a person must possess to legally drive on the roads of Illinois.” Id. ¶ 10.
¶ 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 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).” Id. ¶ 11. We also said that the
“elaborate scheme would be unnecessary if the legislature were not focused on penalizing
those who operate vehicles without valid licenses.” Id. ¶ 11. Likewise, this scheme would
be unnecessary if the legislature were not focused on penalizing repeat offenders more
severely than first-time offenders. Under the majority’s analysis, the courts, the circuit court
clerks, and the Secretary of State were engaged in a colossal waste of time and effort carrying
out their mandated responsibility to record defendant’s convictions of DUI and DWLR,
because those convictions have no bearing on his punishment. He will, for all time, be a first-
time offender. Such a reading is clearly inconsistent with the legislative intent.
¶ 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]
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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 625 ILCS 5/6-700 et seq. (West 2008). I agree with the analysis by the
appellate court in Fielding and would adopt it here. In Fielding, the defendant was first
revoked in 1981, with the revocation set to terminate in 1984. Less than a month after the
revocation began, Fielding was convicted of DUI. Pursuant to statute, his license was
revoked for another year. Like the defendant in this case, Fielding continued to rack up
DWLR convictions, each of which extended the revocation. Similarly, in this case
defendant’s revocation was automatically extended by the Secretary of State upon receipt of
each notice of conviction for a period of one year “from the date of such conviction.” 625
ILCS 5/6-303(b-3) (West 2008).
¶ 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
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Secretary of State.” 625 ILCS 5/2-123(g)(6) (West 2008); see Meadows, 371 Ill. App. 3d at
261.
¶ 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 (625
ILCS 5/6-303(d) (West 2004)) could not serve as a predicate for armed violence. However,
the court affirmed Lucas’s DWLR conviction with a sentencing enhancement due to prior
convictions. Lucas, 231 Ill. 2d at 183.
¶ 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 support the majority’s conclusion that “the Secretary’s 2001
formal administrative sanction of revocation had no effect.” Supra ¶ 9.
¶ 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.) 625 ILCS 5/6-208(b) (West 2008).
A person, like defendant in this case, who has been revoked for DUI must prove that “he
does not have a current problem with alcohol, he is a low or minimal risk.” Grams, 263 Ill.
App. 3d at 396. The burden is on the applicant for a new license to prove “by clear and
convincing evidence” that he is entitled to be granted driving privileges. Id. The applicant’s
total driving record may be considered in determining an application for reinstatement.
Grams, 263 Ill. App. 3d at 398; Caracci v. Edgar, 160 Ill. App. 3d 892, 897 (1987). The
majority’s analysis is inconsistent with decades of precedent holding that the proper method
of showing a revocation of a defendant’s driver’s license (privilege to drive) and the reasons
for such action is by introducing a certified copy of the defendant’s driving abstract. See
People v. Prano, 44 Ill. App. 2d 273 (1963); People v. Wallace, 9 Ill. App. 3d 129 (1973);
Smith, 162 Ill. App. 3d at 742; 625 ILCS 5/2-108, 3-303(f), 6-117(b) (West 2008).
¶ 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 (625 ILCS 5/1-176, 6-208(a) (West
2008)), never expired because defendant continued to commit offense after offense,
including his 2001 DUI, which is reflected in his driving abstract by “Type of Action 94
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(immediate action conviction)” on August 22, 2001, and “Type of Action 01 (mandatory
revocation)” for that offense on October 11, 2001. Morrison then clearly supports the
common and ordinarily understood meaning of the term “revocation.” Contrary to the
majority’s conclusion, defendant’s 2001 DUI conviction and revocation clearly had an effect
on the period during which defendant could not apply for a new license. In other words,
defendant’s privilege to obtain a license was now terminated for DUI as well as the other
reasons noted on his abstract.
¶ 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.
¶ 66 At his sentencing hearing, defendant offered, as a reason for driving in violation of the
law, that he had to get to work. The court succinctly summarized the rationale behind the
penalty scheme for recidivist revoked drivers:
“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. 625 ILCS 5/6-303(d-5) (West 2008). I respectfully believe that
the majority is in error in holding otherwise.
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People v. Heritsch
Court: Appellate Court of Illinois
Date filed: 2012-06-28
Citations: 2012 IL App (2d) 90719
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