dissenting:
Because I believe that the summary suspension procedure of sections 11—501.1 and 6—208.1(a)(4) of the Illinois Vehicle Code (625 ILCS 5/11—501(a) (West 1992)) constitutes punishment for the same offense as the DUI charge, I would reverse the trial court and grant defendant’s motion to dismiss the DUI charge. I must, therefore, respectfully dissent.
The issue here is whether a summary suspension constitutes punishment. I believe that it does. Whether a given civil, criminal or administrative sanction constitutes punishment "requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.” (Emphasis added.) United States v. Halper, 490 U.S. 435, 448, 104 L. Ed. 2d 487, 501, 109 S. Ct. 1892, 1901 (1989). When determining whether a particular sanction constitutes punishment, "it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” Halper, 490 U.S. at 447 n.7, 104 L. Ed. 2d at 501 n.7, 109 S. Ct. at 1901 n.7.
Since the purposes of the sanction and not the nature of the proceedings determine whether double jeopardy applies, I do not believe that the administrative nature of a license suspension or revocation proceeding is relevant to the determination that a particular sanction constituted punishment. Nor do I believe that whether a license to drive is a privilege, a property interest, or a fundamental right is relevant. The deprivation of any of these, even for a relatively short period of time, if for the purposes of punishment, would, in my opinion, constitute prior jeopardy. We must therefore confine our analysis to the purposes of the sanction in order to determine whether double jeopardy applies.
The two traditional purposes of punishment are retribution and deterrence. Halper, 490 U.S. at 448, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902. Thus, civil sanctions that serve either retributive or deterrent purposes are punishment, as we have come to understand the term. Halper, 490 U.S. at 448, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902. However, a sanction that is predominantly remedial in purpose, but has come punitive aspects, would not constitute punishment for double jeopardy purposes. See Halper, 490 U.S. at 443, 104 L. Ed. 2d at 498, 109 S. Ct. at 1899. The ultimate question, therefore, is whether the summary suspension statute is predominantly remedial, with some punitive aspects, and therefore not former jeopardy, or whether the statute has the twin goals of remediation and punishment and therefore is former jeopardy for purposes of invoking the constitutional protection against double jeopardy. I believe that the latter is the case.
I disagree with the majority’s conclusion that a summary suspension procedure is predominantly remedial and for the purpose of getting drivers likely to commit DUI off the road. I likewise disagree with the holdings in People v. Dvorak, 276 Ill. App. 3d 544 (1995), and People v. Fasbinder, 278 Ill. App. 3d 855, 663 N.E.2d 1052, upon which the majority relies.
While it is true that one of the purposes of the summary suspension statute is to remediate the public safety, the statute also has an express punitive purpose that cannot be ignored. Section 6—206.1 of the Code states, in part:
"It is hereby declared a policy of the State of Illinois that the driver who is impaired by alcohol or other drugs is a threat to the public safety and welfare. Therefore, to provide a deterrent to such practice and to remove problem drivers from the highway, a statutory summary driver’s license suspension is appropriate.” (Emphasis added.) 625 ILCS 5/6—206.1 (West 1992).
As Justice Green stated in his special concurrence to People v. Fasbinder:
"The foregoing language clearly states that the summary suspension procedure has two purposes. One is to deter people from driving while intoxicated and the other is to remove 'problem drivers from the highway.’ Any other interpretation ignores the use of the word 'and.’ The majority opinion is not clear as to the meaning it gives to that language. To the extent it interprets the wording to mean 'to provide a deterrent to such practice by removing problem drivers from the highway,’ I am in disagreement.” 278 Ill. App. 3d at 860.
Unlike Justice Green, however, I do not share the opinion that the predominant purpose of the summary suspension statute is remedial. Rather, I believe that the punitive purpose of the statute, i.e., to deter people from driving while intoxicated by imposing a summary suspension, is as much an intended purpose of the summary suspension statute as the purpose of removing potential problem drivers from the roads. I must seriously question the primacy of the goal of getting drivers likely to commit DUI off the road, when the suspension does not take effect until 45 days after the individual is notified of the suspension of his or her license. 625 ILCS 5/11—501.1(g) (West 1992).
Under the double jeopardy analysis articulated by the Supreme Court in Halper, and unchanged by the recent decision in United States v. Ursery, 518 U.S. 267, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), an in personam action that imposes a sanction for a punitive purpose is former jeopardy.
While we may wish to ignore the obvious punitive purpose of the summary suspension statute in order to deter drunk driving, I believe that we cannot do so without abandoning the constitutional protection against double jeopardy. I do not mean to say that potentially dangerous drivers cannot be removed from the road. The summary suspension statute can and should be used where it is the most effective and appropriate method for making the roads safer and punishing a person driving under the influence. If, on the other hand, it would be more effective for the protection of the public and more appropriate punishment for an individual alleged to be driving under the influence to be prosecuted under the criminal statute, the State’s Attorney can choose to effectuate the twin goals of remediation and punishment through a criminal proceeding. We cannot ignore what is to me an obvious violation of our constitutional protection against double jeopardy in order to punish those who violate our laws and endanger our safety.