People v. Kerr

• Decision Date: 05 April 1990
• Docket Number: No. 4-88-0858,4-88-0858
• Citation: People v. Kerr, 552 N.E.2d 1329, 196 Ill.App.3d 207, 142 Ill.Dec. 588 (Ill. App. 1990)
• Parties: , 142 Ill.Dec. 588 The PEOPLE of the State of Illinois, Plaintiff, v. Albert M. KERR, Defendant-Appellee (Jim Edgar, Secretary of State, State of Illinois, Appellant).
• Court: Appellate Court of Illinois

Page 1329

552 N.E.2d 1329

196 Ill.App.3d 207, 142 Ill.Dec. 588

The PEOPLE of the State of Illinois, Plaintiff, v. Albert M. KERR, Defendant-Appellee (Jim Edgar, Secretary of State, State of Illinois, Appellant).

No. 4-88-0858.

Appellate Court of Illinois Fourth District.

April 5, 1990.

Neil F. Hartigan, Atty. Gen., Chicago, Robert J. Ruiz, Sol. Gen., Eve Moran, Asst. Atty. Gen., for appellant.

No appearance for appellee.

Justice STEIGMANN delivered the opinion of the court.

The Secretary of State (Secretary) appeals a circuit court order directing the Secretary to issue a judicial driving permit (JDP) to defendant, Albert M. Kerr. Specifically, the Secretary claims that the circuit court exceeded statutory limitations when it directed issuance of a JDP to the defendant because he was not a first offender as defined by the Illinois Vehicle Code (Code) (Ill.Rev.Stat.1987, ch. 95 1/2, par. 1-100 et seq.).

We agree and reverse.

Defendant was arrested and charged with driving under the influence of alcohol (DUI) on April 20, 1983. (Ill.Rev.Stat.1983, ch. 95 1/2, par. 11-501(a)(2).) On June 8, 1983, defendant was placed on court supervision.

On May 20, 1988, defendant was again arrested and charged with DUI. On testing, he had a blood-alcohol level of 0.19, whereupon the officer gave defendant immediate notice of a summary three-month suspension and, therefore, his license was confiscated. (Ill.Rev.Stat.1987, ch. 95 1/2, pars. 11-501.1(f), (f-1), (g).) On June 3, 1988, the circuit clerk filed a confirmation of statutory suspension letter from the Secretary, notifying defendant he was not a first offender and imposing a 12-month suspension effective July 5, 1988, with a provisional reinstatement date of July 5, 1989.

On October 24, 1988, defendant pleaded guilty to the DUI charge and the circuit court placed him on one year's court supervision. The court further directed the Secretary to issue a JDP to defendant, although the record on appeal does not contain a petition therefor. Subsequently, the Secretary returned the order, requesting that the circuit court reassess the issuance of the JDP. The Secretary had determined defendant was ineligible because his record indicated he was not a first offender as defined in section 11-500 of the Code. (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-500.) The court considered the Secretary's request, but concluded defendant was a first offender under section 11-500 and, on November 2, 1988, issued its final order directing the Secretary to issue a JDP to defendant effective that date through July 5, 1989, coinciding with the provisional reinstatement date for defendant's driver's license stated in the Secretary's confirmation letter. The Secretary issued the JDP to defendant on the following day, and this appeal followed.

At the outset, we note that defendant, as appellee, has not filed a brief in this court. However, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493, we will address the merits of the appeal because the record is simple and the issues are clear. People v. Meece (1987), 162 Ill.App.3d 658, 660, 114 Ill.Dec. 50, 51, 515 N.E.2d 1321, 1322.

We are aware that this case may appear moot, given the expiration date for the JDP has passed. We conclude, however, that this case falls within the public-interest exception to the mootness doctrine because the issue is likely to recur. Also, due to the short duration of the action involved, this issue would ordinarily become moot before it could be resolved by an appellate court. Meece, 162 Ill.App.3d at 660, 114 Ill.Dec. at 51, 515 N.E.2d at 1322 (and cases cited therein); People v. Anderson (1988), 167 Ill.App.3d 308, 310, 118 Ill.Dec. 80, 81, 521 N.E.2d 148, 149; People v. Moffat (1989), 192 Ill.App.3d 326, 328, 139 Ill.Dec. 372, 373-74, 548 N.E.2d 757, 758-59.

I. THE STATUTORY SCHEME, RESTRICTING

JDP ISSUANCE TO "FIRST OFFENDERS"

The issuance of a JDP is governed by section 6-206.1 of the Code (Ill.Rev.Stat.1987, ch. 95 1/2, par. 6-206.1), as amended effective September 21, 1989, by Public Act 86-929 (1989 Ill.Legis.Serv. 4854, 4860-64, 4868 (West)). That section declares the policy of this State of removing impaired drivers from the roads, but recognizes certain limited circumstances in which the granting of a JDP may be appropriate "to relieve undue hardship." (Ill.Rev.Stat.1987, ch. 95 1/2, par. 6-206.1(B)(a).) The legislature balanced these concerns by strictly limiting the issuance of JDPs to "first offenders" (Ill.Rev.Stat.1987, ch. 95 1/2, par. 6-206.1(B)(a)), as that term is defined under section 11-500 of the Code (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-500).

As noted by our supreme court in People v. Pine (1989), 129 Ill.2d 88, 97, 134 Ill.Dec. 365, 367, 542 N.E.2d 711, 713, the legislative scheme for issuance of JDPs vested the circuit court with authority to grant relief to first offenders from a statutory summary suspension (see Ill.Rev.Stat.1985, ch. 95 1/2, par. 6-206.1). However, with regard to non-first-time DUI offenders, the Secretary of State retained the authority to hold hearings and grant hardship relief or reinstatement, when appropriate, after a suspension or a revocation has been imposed. (Ill.Rev.Stat.1985, ch. 95 1/2, pars. 6-205, 6-208; Pine, 129 Ill.2d at 97, 134 Ill.Dec. at 367, 542 N.E.2d at 713.) At issue in this case is whether the defendant is a "first offender" as so defined.

A. Statutory "First Offender" Provision As Originally Enacted

Upon review of section 11-500 and the appeals it has generated, we conclude that the legislature intended to delineate several categories of persons disqualified from first-offender status. To assist our analysis, we have inserted brackets in the following quote from section 11-500 of the Code, as originally enacted:

"For the purposes of interpreting Sections 6-206.1 and 6-208.1 of this Code, 'first offender' shall mean any person who [1 ] has not had a previous conviction or [2 ] court assigned supervision for violating Section 11-501, or a similar provision of a local ordinance, or [3 ] a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Code within the last 5 years; or any person who [4 ] has not had a driver's license suspension for Section 11-501.1 after January 1, 1982, or [5 ] a previous statutory summary suspension as provided in this Code, except in cases where [a ] the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and [b ] was subsequently found not guilty of violating Section 11-501, or a similar provision of a local ordinance." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-500.)

Under this version of section 11-500, the "within the last five years" clause applies to each of the first three categories.

We note in passing that in Public Act 86-929 the legislature amended provisions regarding the issuance of JDPs, including section 11-500, effective September 21, 1989. (1989 Ill.Legis.Serv. 4854, 4865 (West).) As the amended section is inapplicable to this case, we make no comment upon it.

B. Litigation Over "First Offender" Status Under Section 11-500, As Originally Enacted

In People v. Meyer (1988), 166 Ill.App.3d 1030, 117 Ill.Dec. 893, 520 N.E.2d 1244, this court affirmed the denial of a defendant's petition for a JDP, finding the defendant was not a first offender within the meaning of section 11-500 of the Code. There, the defendant stipulated that on December 13, 1982, he was placed on court supervision for a DUI offense. On January 26, 1987--within five years of being placed on court-assigned supervision--he was again arrested for DUI.

Two of the other appellate districts have had occasion to consider the issuance of JDPs to persons who had been placed on court-assigned supervision for DUI within the previous five years. The Second District Appellate Court did so in People v. Duff (1989), 181 Ill.App.3d 324, 130 Ill.Dec. 187, 537 N.E.2d 8 (defendant, arrested for DUI on December 12, 1983, was placed on court-assigned supervision for DUI on January 11, 1984, and again arrested for DUI on April 17, 1988) and, although in dictum, did so again in People v. Brom (1989), 189 Ill.App.3d 910, 912, 137 Ill.Dec. 300, 301, 545 N.E.2d 1061, 1062 (defendant, arrested for DUI on May 8, 1983, was placed on court-assigned supervision on August 30, 1984, and was again arrested for DUI on August 20, 1988). The Third District Appellate Court did so in People v. Pence (1989), 191 Ill.App.3d 96, 138 Ill.Dec. 127, 546 N.E.2d 1182 (defendant, arrested for DUI on October 11, 1982, was placed on court-assigned supervision on December 21, 1982, and again arrested for DUI on December 12, 1987), People ex rel. Edgar. v. Curley (1989), 188 Ill.App.3d 37, 135 Ill.Dec. 520, 543 N.E.2d 1088 (defendant, arrested for DUI on December 23, 1982, was placed on court-assigned supervision on April 28, 1983, and again arrested for DUI on January 3, 1988), and People v. Thompson (1988), 172 Ill.App.3d 894, 122 Ill.Dec. 626, 526 N.E.2d 1389 (defendant was placed on court-assigned supervision for DUI on April 18, 1984, and again arrested for DUI on January 15, 1987).

C. JDP Issuance to Defendant Kerr

In the present case, defendant was arrested for DUI on April 20, 1983, and was placed on court supervision on June 8, 1983. He was arrested again for DUI on May 20, 1988--clearly within five years of being placed on court-assigned supervision, though more than five years from the date of the prior DUI arrest. Thus, consistent with the decision of this court in Meyer--and with those of the Second District in Duff and dictum in Brom, and with those of the Third District in Pence, Curley, and Thompson--defendant was not a "first offender" under section 11-500 as originally enacted. In particular, the majority opinion in ...