delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Kilbride, and Burke concurred in the judgment and opinion.
Justice Garman dissented, with opinion, joined by Justices Thomas and Karmeier.
OPINION
Defendant, Larry J. Van Schoyck, was convicted of driving under the influence of alcohol (625 ILCS 5/11— 501(a)(1) (West 2004)) after a bench trial in the circuit court of Champaign County. The appellate court affirmed the conviction in an unpublished order (No. 4 — 07—0024 (unpublished order under Supreme Court Rule 23)). This court allowed defendant leave to appeal (210 Ill. 2d R. 315), and we now reverse the conviction.
Background
On November 13, 2004, at about 1:17 a.m., defendant received three uniform traffic citations from Champaign County Sheriffs Deputy J.E Reifstock. Defendant was cited for driving under the influence (625 ILCS 5/11— 501(a)(2) (West 2004)), driving with a blood-alcohol content of over 0.081 (625 ILCS 5/11 — 501(a)(1) (West 2004)), and driving on a revoked license (625 ILCS 5/6— 303 (West 2004)). Defendant posted bond several hours later and was released from custody with a December 20, 2004, court date.
The record reveals that the tickets were filed in the circuit court of Champaign County on November 16, 2004, as case Number 04 — DT—688. Defendant appeared in court on December 14, at which time his attorney filed an appearance. Defendant entered a plea of not guilty and demanded a speedy trial, along with a demand for a jury trial.2 The court file sheet indicates that the next court date was set for January 31, 2005.
On January 24, 2005, the State sent defendant a form letter, on which it noted, “No offer pending felony review.” On January 31, 2005, the State filed its appearance in the case and told the trial court that it would file the charge as a felony by the next court date. The court continued the case six times at the State’s request. On each of those dates, the State informed the court that it was seeking to file felony charges against defendant.
On September 19, 2005, the State, over defendant’s objection, dismissed the three citations and recharged defendant, in an information, with driving with a blood-alcohol content over 0.08, noting in the charge the existence of the sentence-enhancing factor (driving on a revoked license), which elevated the DUI offense to a felony.
On November 29, 2005, defendant filed a motion to dismiss, arguing that the State had not tried him within 160 days of his speedy-trial demand, which had been filed on December 14, 2004. The trial court denied the motion. The matter proceeded to trial where defendant was found guilty and then sentenced to six years of imprisonment.
The appellate court affirmed, holding that the trial court did not err in denying the motion to dismiss. Relying on People v. Jackson, 118 Ill. 2d 179 (1987), overruled on other grounds by People v. Stefan, 146 Ill. 2d 324 (1992), the appellate court concluded that defendant’s written demand for a speedy trial, filed before the State had sought felony charges against him, had no effect on defendant’s felony case because the charges were not required to have been joined under the rules of compulsory joinder. No. 4 — 07—0024 (unpublished order under Supreme Court Rule 23).
Analysis
The sole issue in this case is whether defendant’s motion for dismissal, based on the speedy-trial provisions of section 103 — 5(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103 — 5(b) (West 2004)), should have been granted.
The right to a speedy trial, guaranteed to a defendant under both the sixth amendment and the due process clause of the federal constitution (Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967)), and by article I, section 8, of our state constitution (Ill. Const. 1970, art. I, §8), is fundamental. An additional statutory right can also be found in section 103 — 5 of the Code of Criminal Procedure, which specifies periods of time within which an accused must be brought to trial. See 725 ILCS 5/103 — 5 (West 2004). Section 103 — 5(b) mandates that every person on bail or recognizance “shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant.” 725 ILCS 5/103— 5(b) (West 2004). This court has held that the provisions of section 103 — 5 are to be liberally construed in favor of the defendant, and that the State cannot improperly manipulate criminal proceedings or purposefully evade the operation of the section’s provisions. People v. Woolsey, 139 Ill. 2d 157, 169 (1990). In this case, whether defendant’s rights under section 103 — 5(b) were contravened is a pure question of law, which this court reviews de novo. Woolsey, 139 Ill. 2d at 169.
The parties do not dispute that section 103 — 5 applies to those charged with DUI offenses, but disagree as to how many charges were involved in this case and to which of those charges defendant’s December 14 speedy-trial demand applied. According to defendant, there is only “one charge involved, to-wit: driving under the influence of alcohol in violation of 625 ILCS 11/ 501(a)(1).” Defendant argues that the dismissal of the citation which alleged defendant drove with a blood-alcohol content over 0.08 and the refiling of that same charge in the information constituted a “continuation of the same case” to which his original speedy-trial demand should apply.
According to the State, however, there were four different charges in the case, three misdemeanors and one felony. The State maintains that defendant’s speedy-trial demand pertained only to the misdemeanor charges and not to the subsequent felony charge.
To resolve the parties’ contentions, this court must consider two specific statutory schemes: the provisions of the Illinois Code of Criminal Procedure which address how charges are to be brought in criminal prosecutions and section 11 — 501 of the Illinois Vehicle Code, which addresses the offense of driving under the influence (DUI).
Section 11 — 501 of the Vehicle Code
Section 11 — 501 of the Vehicle Code makes it a crime to drive under the influence of drugs or alcohol. 625 ILCS 5/11 — 501 (West 2004). Section 11 — 501(a) provides:
“A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11 — 501.2;
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, or intoxicating compound listed in the Use of Intoxicating Compounds Act.” 625 ILCS 5/11 — 501(a) (West 2004).
The statute designates a violation of any of the above as a Class A misdemeanor. Subsection (c) of section 11 — 501 then provides a list of factors which enhance the misdemeanor to various different classes of felonies. 625 ILCS 5/11 — 501(c) (West 2004). At the time of defendant’s arrest, subsection (c — 1)(1) of section 11 — 501 provided that a violation of section 11 — 501(a)(1) while on a revoked license upgraded the offense to a Class 4 felony.
Under the plain language of the statute, there is only one offense of driving under the influence. People v. Quigley, 183 Ill. 2d 1, 11-12 (1998). Subsection (a) sets forth the elements for the offense and classifies the offense as a Class A misdemeanor. The enhancing factors in subsection (c) do not create a new offense, but rather serve only to enhance the punishment. Quigley, 183 Ill. 2d at 11. In Quigley, this court discussed the operation of section 11 — 501(d), stating:
“ [Aggravated DUI occurs when an individual commits some form of misdemeanor DUI, in violation of paragraph (a), and other circumstances are present. The legislature added aggravating factors that change the misdemeanor DUI to a Class 4 felony. The essential and underlying criminal act, however, remains the same: driving while under the influence.” Quigley, 183 Ill. 2d at 10.
Section 11 — 501 therefore operates just as any other statute which initially sets forth the elements of the offense, and then, in a separate section, provides sentencing classifications based on other factors. See People v. Green, 225 Ill. 2d 612 (2007) (robbery statute); People v. Robinson, 232 Ill. 2d 98 (2008) (involuntary manslaughter statute).
Article 111 of the Code of Criminal Procedure
Article 111 of the Code of Criminal Procedure governs how criminal offenses are to be charged. Section 111 — 1 sets forth three different methods of prosecution: complaint, indictment, and information. 725 ILCS 5/111 — 1 (West 2002). Section 111 — 2 provides that all felonies be prosecuted by either information or indictment. 725 ILCS 5/111 — 2(a) (West 2002). When a misdemeanor DUI is charged by way of uniform traffic ticket, “the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead, unless he specifically requests that a verified complaint be filed.” 725 ILCS 5/111 — 3(b) (West 2002).
Subsection (c) of section 111 — 3 governs how the State is to seek enhanced sentences for offenses and provides in relevant part:
“When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial.” 725 ILCS 5/111 — 3(c) (West 2002).
Application
In this case, defendant faced conviction for the offense of DUI on two possible bases: driving with a blood-alcohol content over 0.08 and driving while intoxicated. These two charges were brought by complaint pursuant to section 111 — 3(b) of the Code. After the filing of the tickets with the circuit court and after defendant’s speedy-trial demand, the State desired that, upon conviction, defendant be sentenced as a Class 4 felon under section 11 — 501(c—1)(1) (driving while on a revoked license due to a previous DUI). To this end, the State was required to upgrade the misdemeanor to a felony, and felonies can only be charged by information or indictment (725 ILCS 5/111 — 2(a) (West 2002)). The State therefore dismissed the two pending DUI charges against defendant and recharged defendant, in an information, with driving with a blood alcohol content over 0.08, noting in the charge the existence of the sentence-enhancing factor (driving on a revoked license), which elevated the DUI offense to a felony.
Under section 111 — 3(c), a prior conviction such as the revoked license in this case is not an element of the underlying offense. People v. DiPace, 354 Ill. App. 3d 104, 114 (2004). Thus, the information did not charge anything new. The information merely elevated the misdemeanor DUI, initially charged by way of a traffic citation, to a felony. Under section 111 — 3(c), the information is a request for an enhanced sentence, which the legislature has defined as a “sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense.” 725 ILCS 5/111 — 3(c) (West 2004); DiPace, 354 Ill. App. 3d at 114. Although the information amounted to a new way of charging the DUI offense, it did not allege a different offense than did the previously dismissed ticket. Since the offenses alleged in both the ticket and the information were the same, compulsory joinder principles, the subject of cases like People v. Jackson, 118 Ill. 2d 179 (1987), overruled on other grounds by People v. Stefan, 146 Ill. 2d 324 (1992), do not apply to this case. The appellate court incorrectly concluded that compulsory joinder principles rendered defendant’s speedy-trial demand inapplicable to the refiled charge.
The State has the discretion not only to decide what charges to bring, but to decide whether charges should be dismissed. People v. Rhodes, 38 Ill. 2d 389, 396 (1967). The State may not avoid a speedy-trial demand by dismissing a charge only to refile the identical charge for the identical offense based on the identical acts. People v. Fosdick, 36 Ill. 2d 524 (1967). Defendant contends that, in this case, the State improperly used its power of dismissal to avoid the effect of his speedy-trial demand.
The voluntary dismissal of criminal charges before trial is, in effect, a nolle prosequi. People v. Guido, 11 Ill. App. 3d 1067, 1069 n.2 (1973), citing Commonwealth v. Brandano, 359 Mass. 332, 334-35, 269 N.E.2d 84, 86-87 (1971). The effect of a nolle prosequi is “to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense.” People v. Watson, 394 Ill. 177, 179 (1946). Although the State may refile dismissed charges before jeopardy attaches, its ability to do so may be complicated by speedy-trial concerns. For that reason, voluntary dismissal and the subsequent refiling of identical charges do not toll the statute. Fosdick, 36 Ill. 2d at 528-29.
We hold, therefore, that defendant’s speedy-trial demand filed with respect to the offenses charged by complaint was applicable to the same offense refiled by the State in its information. As noted, defendant filed his written demand for a speedy trial on December 14, 2004, and the 160-day period was thus set to expire on May 23, 2005. The parties have agreed that no amount of delay from December 14, 2004, until May 23, 2005, was attributable to defendant. Defendant’s trial, which took place on November 29, 2005, was outside the limitations set forth in section 103 — 5(b) (725 ILCS 5/103 — 5(b) (West 2004)). The circuit court therefore incorrectly denied defendant’s motion to dismiss.
Conclusion
For the reasons set forth above, the judgments of the circuit court and the appellate court are reversed.
Appellate court judgment reversed;
circuit court judgment reversed.
Defendant’s Breathalyzer test showed his blood-alcohol content to be 0.197.
The certificate of service indicates that the demands for a speedy trial and jury trial were mailed to the State’s Attorney’s office on that same date.