§ 1.6 Court Action

• Library: Illinois DUI and Traffic-Related Decisions (2016 Ed.)

§ 1.6 Court Action

§ 1.6-1 Charge Dismissed

§ 1.6-1(a) Improper

People v. Finely, 209 Ill. App. 3d 968, 568 N.E.2d 412, 154 Ill. Dec. 412 (3d Dist. 1991). Defendant was charged with the offense of felony DUI premised upon the fact defendant had committed the offense of DUI on two previous occasions. The trial court dismissed the indictment because in one of the earlier convictions defendant pled guilty without benefit of counsel.

The appellate court agreed that under the holding of Baldasar v. Illinois, 446 U.S. 222 (1980), the prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon 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 convictions could not count for the enhancement of a misdemeanor to a felony DUI charge. The appellate court reversed finding that when defendant was indicted for a DUI offense committed 7/25/89 he had two convictions for DUI. This was sufficient to support a charge for the felony DUI.

People v. Winkler, 248 Ill. App. 3d 954, 188 Ill. Dec. 91 (1st Dist. 1993). A trial court dismissed a felony DUI charge on the basis that one of the DUI convictions relied upon by the State to support the charge had actually resulted with a supervision terminated satisfactorily. The appellate court reversed finding a felony DUI charge must be supported by a showing that a person had committed two violations of DUI. It was not required that the State show it was two convictions.

People v. Sheehan, 168 Ill. 2d 298, 659 N.E.2d 1339, 213 Ill. Dec. 692 (1995). Defendants were charged with aggravated DUI based upon the commission of at least two prior DUI violations. The trial court dismissed the felony charges because the State had used a prior DUI charge for which supervision had been successfully completed. The appellate court affirmed. The Illinois Supreme Court reversed, finding that the term "committed" permits the use of a DUI resulting in supervision as an enhancing offense under the felony DUI statute.

§ 1.6-1(b) Proper

People v. Pacheco, 338 Ill. App. 3d 616, 788 N.E.2d 419 (2d Dist. 2003). Defendant was charged by indictment on 1/18/01 with two counts of aggravated DUI and driving while license was revoked. The offenses allegedly occurred on 8/31/96 and each count of the indictment indicated that a prosecution for the same conduct had been pending against defendant since 1996. Defendant successfully moved to dismiss the charges because they were barred by the applicable statute of limitations. The trial judge found that the felony charge was a separate and distinct offense from the charge that was pending since 1996.

The appellate court affirmed. Sec. 3-7 of the Criminal Code of 1961 must be invoked in the charging document. If an indictment or information shows on its face that the offense was not committed within the period of limitations, facts must be averred which invoke one of the exceptions contained in the statute. Because the indictment only stated that a prosecution was pending for the same conduct and did not specify that the State intended to rely on the previous prosecution as the basis for tolling the statute of limitations, the charges were properly dismissed.

§ 1.6-2 Contempt Order Entered

§ 1.6-2(a) Improper

People v. Iseminger, 202 Ill. App. 3d 581, 560 N.E.2d 445, 148 Ill. Dec. 143 (4th Dist. 1990). At a sentencing hearing for a felony DUI, defendant was questioned by a judge about whether he had consumed cannabis or any other illegal drugs. Defendant's attorney objected and instructed him to not answer the questions without asserting the Fifth Amendment privilege. The trial court found defendant in direct civil contempt and took him into custody. In a motion to require a hearing, defendant for the first time claimed he was entitled to claim the Fifth Amendment privilege and therefore continued to resist answering any of the judge's questions pertaining to drug use. The appellate court first determined that the trial judge may inquire of defendant at a sentencing hearing within reasonable bounds. The direct civil contempt was vacated because the trial court failed to conduct an inquiry as to whether defendant's Fifth Amendment claim was legitimate.

§ 1.6-3 Evidence of Defendant's Previous Violations

Improper

People v. Robinson, 368 Ill. App. 3d 963, 859 N.E.2d 232, 307 Ill. Dec. 232 (1st Dist. 2006). In a bench trial, the trial judge denied defendant's motion in limine to prevent admission into evidence by the State, two previous violation of the DUI statute by the defendant. The trial judge allowed the State to use the previous violations based upon the judge's belief that such evidence was necessary to prove an element of offense of Aggravated DUI.

The appellate court reversed and remanded the matter for a new trial. The court noted that the evidence was closely balanced; the only witness to establish that defendant was under the influence of alcohol was the police officer. Defendant called two witnesses that testified that he was not intoxicated. The erroneous admission of the defendant's previous violations of the DUI statute was considered highly prejudicial in light of the appellate court not being able to assume the trial judge did not consider the improper evidence because of the judge's erroneous impression the previous violations were elements of the offense that defendant was on trial for.

§ 1.6-4 Failure to Comply with Supreme Court Rule 431(b)

People v. Schaefer, 398 Ill. App. 3d 963, 924 N.E.2d 1176, 338 Ill. Dec. 650 (2d Dist. 2010). Following a jury trial on felony and misdemeanor charges, defendant was convicted of aggravated DUI, transportation of open alcohol, improper lane usage, and resisting and obstructing a peace officer. He was sentenced to 36 months probation. On appeal, defendant claimed the trial court failed to question the potential jurors in accordance with Supreme Court Rule 431(b).

During jury selection the trial court asked jurors if they had a problem with the first and second principles. The first and second principles are that the defendant is presumed innocent of the charges against him or her and before the defendant can be convicted, the State must prove the guilt of the defendant beyond a reasonable doubt. Neither the trial court of the State asked potential jurors whether the jurors understood and accepted the third and fourth principles. The third and fourth principles are that the defendant is not required to offer any evidence on his or her behalf and the failure of a defendant to testify cannot be held against him or her.

The appellate court reversed and remanded the matter for a new trial except for the improper lane usage charge, which was reversed outright. The failure of the trial court to ask the jurors their acceptance and understanding of the Zehr principle was so serious that defendant was denied a substantial right and thus was denied a fair trial.

§ 1.6-5 Failure to Instruct on Prior Inconsistent Statement

Improper

People v. Eggert, 324 Ill. App. 3d 79, 754 N.E.2d 474, 257 Ill. Dec. 816 (2d Dist. 2001). In a jury trial for the charge of aggravated DUI, the arresting officer testified to observing the defendant weaving across the lane and that defendant refused field sobriety and breathalyzer tests. Counsel for defendant was able to impeach the officer by having him admit that his written police report failed to mention what he had testified to regarding his observation and the tests. At the jury instruction conference, defense counsel tendered Illinois Pattern Instruction, Criminal, No. 3.11 (4th ed. 2000) regarding the believability of a witness. The trial court refused to give the jury this instruction. Defendant was found guilty of aggravated DUI and driving while license was revoked.

The appellate court reversed and remanded the matter for a new trial on the aggravated DUI charge on the grounds that the omissions by the officer of his observations and that defendant refused to take tests impeached the officer. The failure of the trial court to instruct the jury regarding the inconsistency was an abuse of discretion. The omissions in the police report related to matters material to the issue of whether defendant drove his vehicle under the influence of alcohol and credibility of the arresting officer was essential since the State's case was based solely upon his testimony.

§ 1.6-6 Motion for Continuance Denied Properly

People v. Curry, 2013 IL App (4th) 120724, 990 N.E.2d 1269, 371 Ill. Dec. 891. Defendant was charged with Aggravated DUI. An attorney filed his appearance and at some point the matter was set for a jury trial. On the day the matter was set for trial, the defendant sought a continuance. Information brought to the attention of the trial judge was that defendant had retained another attorney, however the newly retained attorney indicated to the prosecutors that he would only file an appearance if the matter was continued. The State suggested to the judge the defendant was manipulating the system. The trial judge denied the continuance and took the position, the other attorney should have been in court to make the motion to continue. A jury heard the evidence and reached verdicts of guilty on Aggravated DUI, driving with expired registration, and improper lane usage. Defendant appealed claiming the trial judge denied him his right to counsel of his own choosing.

The appellate court affirmed the conviction. The court noted the original attorney hired by the defendant was allowed to supplement the motion for a continuance. The facts revealed there was an absence of new counsel who stood "ready, willing, and able to make an unconditional entry of appearance on defendant's behalf." The trial judge did not abuse its...