People v. Harrison

Decision Date11 March 1992
Docket NumberNo. 5-91-0074,5-91-0074
Citation225 Ill.App.3d 1018,588 N.E.2d 1256,168 Ill.Dec. 12
Parties, 168 Ill.Dec. 12 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Charles HARRISON III, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

William R. Haine, State's Atty., Edwardsville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Gerry R. Arnold, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellant.

Daniel M. Kirwan, Deputy Defender, E. Joyce Randolph, Asst. Defender, Office of the State Appellate Defender, Mt. Vernon, for defendant-appellee.

Justice WELCH delivered the opinion of the court:

The People of the State of Illinois appeal from the order of the circuit court of Madison County entered February 1, 1991, dismissing the felony indictment against defendant, Charles Harrison III, for driving under the influence of alcohol (hereinafter "DUI").

Defendant was initially charged with felony DUI on July 25, 1989. A preliminary hearing was held on case No. 89-CF-681 on July 6, 1990. Officer Dennis Kaid testified at the preliminary hearing that he had stopped defendant's vehicle on July 25, 1989, and noticed a strong odor of alcohol about defendant's person and an open can of beer on the car floor. When asked for his driver's license, defendant responded that it was suspended. Defendant was placed under arrest and transported to the police station where he was asked to perform certain field sobriety tests.

Defendant was unable to satisfactorily perform these tests and Officer Kaid determined that defendant was unfit to drive because he was under the influence of alcohol. Officer Kaid charged defendant with driving under the influence and asked defendant to submit to the breathalyzer test. Defendant was given the "warning to motorist" and Miranda warnings before voluntarily taking the breathalyzer test. Defendant received a 0.21 score on the breathalyzer test.

Officer Kaid testified that his records indicated that defendant was arrested and convicted twice in 1986 for DUI. He also testified that defendant was represented by counsel for each of those convictions. On cross-examination Officer Kaid admitted that both convictions were entered on August 1, 1986. Officer Kaid testified that in addition to the two DUI cases which resulted in convictions in 1986, information from the Secretary of State's office indicated that defendant's driver's license had been revoked for DUI on April 5, 1985, in another jurisdiction. The assistant State's Attorney also asked the court to take judicial notice of defendant's conviction in 1983, apparently for DUI, but did not know whether defendant had been represented by counsel in either the 1983 or the 1985 case. The court would not consider evidence of the 1983 or 1985 DUI convictions without evidence that defendant had been represented by counsel in those cases.

Defendant also argued at the hearing that he could not be charged with felony DUI because the two 1986 convictions, in which he had been represented by counsel, occurred on the same day. Defendant contended that the language in the felony DUI statute (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501(d)(1)) was analogous to language in the second or subsequent offenses statute (Ill.Rev.Stat.1989, ch. 38, par. 33B-1) and the habitual criminal statute (Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3(c)(8)) and therefore this case would only support a misdemeanor charge. The court noted that the subsequent offenses and habitual criminal statutes required that an accused commit a crime, be convicted, then commit a second crime, be convicted, and then commit a third crime before the accused could be charged as a subsequent offender and that the legislative intent was to punish recidivism. The People argued, however, that the plain language of the DUI statute indicates that when an accused has twice been convicted of DUI and is charged with another DUI following those convictions, the charge is a Class 4 felony. The People noted that the two convictions in 1986 resulted from offenses committed on two separate occasions.

The court ruled that probable cause was lacking for the felony offense of DUI, although the court believed that defendant could be prosecuted for the misdemeanor offense of DUI, and the court dismissed the felony charge against defendant. This court dismissed the People's appeal of the circuit court's July 6, 1990, ruling. People v. Harrison (December 14, 1990), No. 5-90-0491 (unpublished summary order).

A Madison County grand jury indicted defendant on November 15, 1990, charging defendant with felony DUI for the offense committed on July 25, 1989, in case No. 90-CF-1140. Defendant moved to dismiss the indictment because defendant had previously been charged with the same offense in 89-CF-681, a preliminary hearing had been held thereon, a finding of no probable cause was made by the court on July 6, 1990, and this finding was res judicata with respect to case No. 90-CF-1140. Following hearing of defendant's motion on February 1, 1990, the court ordered that the argument from the preliminary hearing in case No. 89-CF-681 and the report of proceedings in that case be incorporated into the record in the instant case. The circuit court ordered dismissal of the indictment on February 4, 1991, based on its finding at the preliminary hearing on case No. 89-CF-681 that two simultaneous convictions could not count as two convictions for the enhancement of a misdemeanor to a felony DUI charge.

The People argue on appeal that the circuit court erred in dismissing the indictment charging felony DUI because an indictment may not be dismissed prior to trial on the basis that there may be insufficient evidence to support the charge. Our review of the record, however, indicates that the court in the instant case made its finding of no probable cause for felony DUI because of its interpretation of the felony DUI statute. As such the court was finding as a matter of law that the charge or indictment did not state an offense for felony DUI because the two prior convictions stated in the charge in case No. 89-CF-681 and the indictment in case No. 90-CF-1140 occurred on the same date. Section 114-1(a)(8) of the Code of Criminal Procedure of 1963 provides that upon written motion of defendant prior to trial the court may dismiss the indictment, information or complaint where the charge does not state an offense. (Ill.Rev.Stat.1989, ch. 38, par. 114-1(a)(8).) The People also argue that the circuit court erred in dismissing the indictment for felony DUI where the two prior violations of the DUI statute which enhanced the charged offense to a felony occurred at different times in 1986 even though the defendant pleaded guilty to both charges on the same date. Our determination then of both issues raised on appeal requires an interpretation of the felony DUI statute, an issue of first impression, according to our perusal of Illinois case law. Because we believe the circuit court erred in interpreting the felony DUI statute to require that the two prior convictions for DUI not be entered on the same day in order to sustain a charge of felony DUI, we reverse.

Section 11-501 of the Illinois Vehicle Code provides, in pertinent part, that a person shall not drive or be in actual physical control of any vehicle within this State while the alcohol concentration in such person's blood or breath is 0.10 or more. (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501(a).) Paragraph 11-501(d)(1) of the Illinois Vehicle Code provides that every person convicted of committing a violation of this section shall be guilty of a Class 4 felony if such person committed a violation of paragraph (a) for the third or subsequent time. It is this latter subsection of section 11-501 that we refer to as the felony DUI statute.

The court's interpretation of the felony DUI statute was apparently based on the language in certain enhanced-penalty criminal statutes and the case law interpreting them and the court's finding that the felony DUI statute is also an enhanced-penalty statute. This court has stated that a statute which imposes additional punishment upon conviction for a second or subsequent conviction is highly penal and must be strictly construed and that such "enhanced penalty" statutes are enacted as a warning to a first offender of the consequences of a second conviction. (People v. Phillips (1978), 56 Ill.App.3d 689, 695, 14 Ill.Dec. 161, 166, 371 N.E.2d 1214, 1219.) In Phillips we were asked to interpret section 408 of the Controlled Substances Act which provided:

" § 408. (a) Any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

(b) For purposes of this Section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this Act or under any law of the United States or any State relating to controlled substances." (Ill.Rev.Stat.1975, ch. 56 1/2, par. 1408.)

The issue on appeal in Phillips was whether the defendant therein could be treated as a second or subsequent offender where his two convictions occurred on the same day for violations which occurred within a four-day period. This court concluded that the words "convicted of a second or subsequent offense" prior to the fixing of penalties in section 408 did not contemplate the accumulation of a number of offenses within a four-day period but instead contemplated increased punishment for a person who after conviction did not reform but persisted in committing other offenses of a similar character. We held that sentencing of enhanced penalties under section 408 could only occur where the defendant was convicted of a narcotics violation charge, then committed another...

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6 cases
  • People v. Sheehan
    • United States
    • Illinois Supreme Court
    • December 21, 1995
    ...used in felony DUI statute permits use of prior DUI offenses resulting in supervision); but cf. People v. Harrison (5th Dist.1992), 225 Ill.App.3d 1018, 1024, 168 Ill.Dec. 12, 588 N.E.2d 1256 (although use of DUI offense resulting in supervision as enhancing offense was not at issue, court ......
  • People v. Halerewicz, 4–12–0388.
    • United States
    • United States Appellate Court of Illinois
    • October 31, 2013
    ...statutes are enacted as a warning to a first offender of the consequences of a second conviction.” People v. Harrison, 225 Ill.App.3d 1018, 1022, 168 Ill.Dec. 12, 588 N.E.2d 1256, 1258 (1992). ¶ 36 In sum, general violations of section 11–501, specifically nonaggravated DUIs, may be used to......
  • People v. Tinkham
    • United States
    • United States Appellate Court of Illinois
    • August 23, 1994
    ...of two prior DUI convictions in order to enhance a subsequent conviction to aggravated DUI. (People v. Harrison (1992), 225 Ill.App.3d 1018, 1024, 168 Ill.Dec. 12, 15-16, 588 N.E.2d 1256, 1259-60; People v. Masten (1991), 219 Ill.App.3d 172, 175-76, 161 Ill.Dec. 770, 772-73, 579 N.E.2d 27, ......
  • Gaskill v. Robert E. Sanders Disposal Hauling
    • United States
    • United States Appellate Court of Illinois
    • August 25, 1993
    ...and generally, the language of the statute itself is the best indicator of that intent. (People v. Harrison (1992), 225 Ill.App.3d 1018, 1024, 168 Ill.Dec. 12, 15-16, 588 N.E.2d 1256, 1259-60.) It is not the province of the courts to inject provisions not found in a statute. (In re Objectio......
  • Request a trial to view additional results
1 books & journal articles
  • § 1.6 Court Action
    • United States
    • Illinois DUI and Traffic-Related Decisions Section 1 Felony Driving Under the Influence of Alcohol
    • Invalid date
    ...a subsequent conviction. However, the trial court erred in dismissing the indictment and the cause was remanded. People v. Harrison, 225 Ill. App. 3d 1018, 588 N.E.2d 1256, 168 Ill. Dec. 12 (5th Dist. 1992). A trial court dismissed a felony DUI charge finding that two simultaneous convictio......

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