Recent DUI cases, September 2003
Recent DUI cases September 2003
VOL. 13, NO. 1
http://www.isba.org/Sections/Traffic/9-03a.htm#gen2
By Thomas M. Moran and James Ahern
One Act, One Crime
In a case in which all of the elements of one offense are included in another, a conviction for only the more serious offense may stand. In People v. Miller, No. 3-01-0988, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(3d Dist. 2003), the defendant was charged with aggravated DUI, driving at a time when his driving privileges were suspended and illegal transportation of alcohol. The trial court found the defendant guilty of all these offenses but the appellate court vacated the defendant's conviction for driving with a suspended license for the reason that all of the elements of driving while license suspended were included in the offense of aggravated DUI. In addition, the appellate court also reversed the defendant's conviction for illegal transportation of alcohol. At trial, the State failed to offer evidence that the empty container was the same brand of beer as the one found in the car or that the empty container had been inside the car.
Seizure
Activation of a police officer's mars lights does not result in a seizure of a motor vehicle. A seizure is effected only when the vehicle begins to yield. Village of Mundelein v. Thompson, No. 2-02-0376, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(2d Dist. 2003).
Detention following traffic stop
When a police officer sees a driver commit a traffic violation, he is justified in detaining the driver briefly. The officer may inquire about the circumstances of the observed violation. Under most circumstances, the officer may also run a quick warrant check of the driver's license. However, the detention must "last no longer then is necessary to effectuate the purpose of the stop."
If the officer detains the driver for longer than necessary to effectuate the purpose of the stop, evidence obtained as a result must be excluded. In People v. Grove, No. 5-01-0958 ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(5 th Dist. 2003), the appellate court held that the officer who stopped the defendant's vehicle was justified in running a computer check on the defendant's driver's license. In Grove, the officer observed that the registration tag on the defendant's license was obscured. A computer check of the license plate indicated that the registration had expired and that the license plate was issued to a car other than the car the defendant was driving. But, following a traffic stop, the defendant produced a registration card which the officer determined was valid for the car the defendant was driving.
Similarly, In People v. Leigh, No. 5-02-0725, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(5 th Dist. 2003), the appellate court reversed the trial court's denial of the defendant's motion to suppress. In this case, the officer stopped the defendant's vehicle for failure to have a rear license plate light. After verifying the defendant's license, registration and proof of insurance, the officer wrote the defendant a warning ticket. After writing the warning ticket, he asked the defendant if there was anything in his truck that would cause a police dog to alert. The defendant told the officer that, while there was nothing in his truck that would cause the dog to alert, his wife's pistol was in the truck. The appellate court said that, while the stop was proper, the officer's questioning about the truck's contents exceeded the permissible scope of the stop.
Search of auto
The Second District Appellate Court has ruled that police were justified in asking for, and receiving, consent to search a vehicle following a traffic stop for reckless driving. Factors which supported the court's decision included the facts that the driver did not have identification, was nervous and shaking, the stop occurred at night, there were four passengers in the vehicle and the officer observed furtive movements. People v. Moore, No. 2-01-1347, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003).
Double jeopardy
Double jeopardy principles would not bar the retrial of a DUI charge where the trial court, out of necessity, declares a mistrial and schedules a new trial. In People v. Bagley, 338 Ill.App.3d 978, 789 N.E.2d 860, 273 Ill.Dec. 686 (2d Dist. 2003), after the jury was sworn, but before the first witness was called, the State located a videotape of the defendant's arrest that was believed to be lost. The State explained that the arresting officer had locked the tape in his filing cabinet instead of placing it in the evidence room and that the State was unaware of this fact until the officer arrived in court to testify. While the defense attorney maintained that the trial court should have excluded the tape, the appellate court disagreed holding that excluding evidence is limited to the most extreme discovery violations. Similarly, a mistrial would be properly declared in the event a jury is unable to reach a verdict. People v. Smith, 338 Ill.App.3d 254, 788 N.E.2d 802, 273 Ill.Dec. 211 (2d Dist. 2003). But, it would not be necessary to declare a mistrial based upon the fact that a juror's mother-in-law had suffered a broken leg and the fact that the jury had deliberated three hours and 15 minutes without reaching a verdict. People v. Largent, 337 Ill.App.3d 835, 786 N.E.2d 1102, 272 Ill.Dec. 268 (4 th Dist. 2002).
Double jeopardy--Compulsory joinder
The charge of squealing of tires is not a lesser included offense of reckless driving and it is not necessary that these charges be brought in a single prosecution. People v. Garcia, ___ Ill.App.3d ___, 788 N.E.2d 1201, 273 Ill.Dec. 1201(5 th Dist. 2003). In Garcia, the defendant pleaded guilty to a ticket for illegal squealing or screeching of tires. Following his guilty plea, the State filed a reckless driving charge. The appellate court ruled that the trial court properly denied the defendant's motion to dismiss on double jeopardy grounds.
Conduct of judge
Repeated interruptions of defense counsel by the trial judge while defense counsel attempted to make a closing argument may be the basis of the reversal of the defendant's conviction for a criminal offense. People v. Stevens, ___ Ill.App.3d ___, 790 N.E.2d 52, 273 Ill.Dec. 910 (1 st Dist. 2003).
Chain of custody of blood sample
In the prosecution of a DUI case, the State must establish a chain of custody when a blood sample is drawn under section 11-501.2 upon the request of a law enforcement officer and then delivered to the officer. However, in the event a blood test is conducted in the regular course of providing medical treatment, it is not necessary that the State establish a chain of custody. Instead, lab reports of blood tests obtained in the regular course of providing medical treatment are admissible in DUI prosecutions under the business records exception to the hearsay rule. 625 ILCS 5/11-501.4 People v. Henderson, ___ Ill.App.3d ___, 789 N.E.2d 774, 273 Ill.Dec. 600 (3d Dist. 2003).
Privacy of medical records
Defense counsel should be aware of the provisions of 42 USC section 290dd-2(a), which prohibit disclosure of hospital records, except as authorized by court order, to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient. Following the passage of this amendment of the U.S. Code, the U.S. Department of Health and Human Services has issued the regulation "Standards for Privacy of Individually Identifiable Health Information" which apply to health information created or maintained by health care providers. Yet to be decided by an Illinois court of review is whether the privacy provisions of the U.S. Code or the regulations of the Department of Human Services will preclude the use of a hospital blood test, taken for treatment purposes, may be used by the State in the prosecution of a DUI or reckless homicide charge.
Instruction cannot create mandatory presumption
In 1991, in an attempt to assist the prosecution in reckless homicide cases where the defendant is alleged to have been under the influence, the General Assembly amended Section 9-3(b) of the Illinois Criminal Code, 720 ILCS 5/9-3(b) to provide:
"If you find from your consideration of all the evidence that the defendant was under the influence of alcohol at the time of the alleged violation, such evidence shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary."
In People v. Pomykala, 203 Ill.2d 198, 784 N.E.2d 784, 271 Ill.Dec. 230 (2003), the Illinois Supreme Court affirmed the appellate court's decision which revised the defendant's conviction for reckless homicide. The Supreme Court held that section 9-3(b) created an unconstitutional mandatory presumption of recklessness. It should be noted that, when this Senate Bill was introduced in 1991, the Illinois State Bar Association opposed the bill arguing that it would create an impermissible mandatory presumption.
Supervision
Section 5-6-1 of the Code of Corrections (730 ILCS 5/5-6-1), authorizes the circuit court to enter an order of supervision for a person charged with a misdemeanor except that section 5-6-1(d)(1) provides, in pertinent part, that supervision may not be granted to a person convicted of a violation of section 11-501 of the Illinois Vehicle Code "...or a similar provision of a local ordinance or any similar law or ordinance of another state..." In People v. Hamalainen, No. 2-02-0004, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003), the defendant argued that his previous Wisconsin conviction for driving with a prohibited BAC is not similar to the Illinois statute for the reasons that the Wisconsin law is punishable only by fine and not jail time and, in Illinois, the prohibited BAC 0.08 whereas, in Wisconsin, the prohibited BAC is 0.10. The appellate court held that the trial court properly denied the defendant's request for supervision for the reason that the two statutes are "similar" under section 5-6-1(d) of the Code of Corrections.
While section 5-6-3.1 of the Unified Code of Corrections does not set forth a minimum supervision period, trial courts do not have discretion to place defendants on supervision which terminated instanter. The purpose of having a period of supervision is to permit a meaningful opportunity to observe the conduct of the offender over some reasonable period of time. By terminating the supervision instanter, the trial court frustrates the legislative intent and denies the State and the court opportunity to insure to the public that the defendants' conduct did not warrant criminal records. People v. Bresley, No. 2-02-0451, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003)
Submission to warrantless searches as a condition of probation
In People v. Johns, No. 4-02-0748, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (4 th Dist. 2003), following a stipulated bench trial on the charges of DUI and driving while license revoked, the trial court sentenced the defendant to 24 months probation. One of the conditions of probation provided that the defendant "... submit to warrentless searches of [her] person, property, residence, motor vehicle and effects at the request of [her] probation officer or law enforcement authorities and consent to the use of anything seized as evidence in court proceedings." Pursuant to a request by the probation office, law enforcement officers conducted "a random probation check" of the defendant's residence. While the defendant was not present, the officer conducting the search claimed that the defendant's son, who the officer believed to be 16 or 17 years old gave permission to conduct the search. Three used pipes were found in the defendant's bedroom, one of which was tested and found to contain cocaine. While the trial court denied the defendant's motion to suppress, the appellate court reversed the trial court and found that reasonable suspicion was required to justify the search of the dresser drawer in the defendant's bedroom.
Imposition of extended-term sentence for
aggravated DUI
Notwithstanding the fact that section 11-501(d)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501 (d)(2)) provides that a person found guilty of aggravated DUI, if sentenced to a term of imprisonment, shall be sentenced to not less than one year and not more than three years, this would not preclude imposition of an extended-term sentence when a defendant is convicted of any felony, after having been previously convicted of the same or similar class felony or greater class felony when such conviction occurred within 10 years after the previous conviction. In People v. McCormick, No. 1-01-3628, ___ Ill.App.3d ___, 791 N.E.2d 112, 274 Ill.Dec. 316 (1 st Dist. 2003), the defendant was found guilty of aggravated DUI and felony driving with a revoked license. The trial court sentenced the defendant to five years in prison, citing his 1997 class 2 felony conviction for possessing a stolen motor vehicle as the basis for the extended term. The appellate court affirmed the trial court.
Appeal by municipality
When a municipality brings an appeal pursuant to Supreme Court Rule 604(a), the jurisdictional statement should include the fact that the prosecution has written authority from the State's Attorney to prosecute a violation of the Illinois Vehicle Code. Failure to include such statement by a municipality in the appeal of a trial court's order suppressing evidence in a DUI prosecution will deprive the appellate court authority to consider the appeal. Village of Mundelein v. Thompson, No. 2-02-0376, ___Ill.App.3d___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003).
Summary suspension cases
Informant
An informant's tip to police must bear some indicia of reliability to provide a sufficient basis for a Terry-type seizure. But if information comes from a named witness, a minimum of corroboration or verification of the reliability of the information is required. In Village of Mundelein v. Thompson, No. 2-02-0376, ___ Ill.App.3d ___, ___ N.E. 2d ___, ___ Ill.Dec. ___ (2d Dist. 2003), the appellate court reversed the trial court's order rescinding the defendant's summary suspension. In this case, a male caller called the Mundelein Police Department to report that he was "following a guy in a van who seemed to be drunk" and that the van was "all over the road." He described the van and provided its full license plate number.
Time of filing petition to rescind
Section 2-118.1 (b) of the Vehicle Code provides in pertinent part:
"Within 90 days after the notice of statutory summary suspension [is] served * * *, the person may make a written request for a judicial hearing in the circuit court venue." 525 ILCS 5/2-118.1(b)
In People v. Rodriguez, ___ Ill.App.3d ___, 791 N.E.2d 707, 274 Ill.Dec. 615 (2d Dist. 2003) the appellate court held that a statute which allowed a party who had voluntarily dismissed an action to refile it up to one year later did not apply to actions to rescind a license suspension.
Miscellaneous traffic cases
Request for identification from passenger following traffic stop
In People v. Gonzalez, 204 Ill.App.2d 220, 789 N.E.2d 260, 273 Ill.Dec. 360 (2003), the Illinois Supreme Court was called upon to decide whether, following a traffic stop, police may request identification from a passenger in the vehicle. In this case, after the defendant produced paper identification, the officer ran a computer check which indicated that the defendant was a gang member who had a long criminal record and was on parole at the time. Because of this information, the officer, fearing that the defendant had a weapon, searched the defendant and discovered a small amount of cocaine. In an opinion authored by Justice Fitzgerald, the court held that the officer's request for identification from the passenger who was lawfully detained, did not render his detention unreasonable under the fourth amendment to the U.S. Constitution or article 1, section 6 of the Illinois Constitution. The court observed that the defendant was under no obligation to answer or comply with the officer's request.
Speeding
Illinois State Police currently use a speed measuring device known as a Lidar laser unit. In People v. Canulli, #4-01-0094, ___ Ill.App.3d ___, ___ N.E. 2d ___, ___Ill.Dec. ___ (4 th Dist. 2003), the defendant's conviction for traveling 80 mph in a 65 mph zone was reversed without remand for the reason that no Illinois court had addressed the admissibility of Lidar laser evidence to measure the speed of vehicles. The appellate court observed that, before a trial court may admit evidence of a new scientific theory, evidence must be introduced to establish that the methodology or scientific principle is sufficiently established to have gained general acceptance. See Frye v. United States, 293 F.1013 (DC CIR. 1923).
Overweight vehicles
Section 11-207 of the Vehicle Code, 625 ILCS 5/11-207 bars municipalities from enacting any ordinance in conflict with the provisions of the Illinois Vehicle Code. Section 11-207 further provides that municipalities may adopt additional traffic regulations which are not in conflict with the Illinois Vehicle Code,..."but such regulations shall not be effective until signs giving reasonable notice thereof are posted." In City of Decatur v. Page, ___ Ill.App.3d ___, 789 N.E.2d 1269, 273 Ill.Dec. 837 (4 th Dist. 2003), the defendant's conviction for operating an overweight vehicle was reversed because of the failure of the city to post signs alerting motorists of the city's weight restrictions.
http://www.isba.org/Sections/Traffic/9-03a.htm#gen2
By Thomas M. Moran and James Ahern
One Act, One Crime
In a case in which all of the elements of one offense are included in another, a conviction for only the more serious offense may stand. In People v. Miller, No. 3-01-0988, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(3d Dist. 2003), the defendant was charged with aggravated DUI, driving at a time when his driving privileges were suspended and illegal transportation of alcohol. The trial court found the defendant guilty of all these offenses but the appellate court vacated the defendant's conviction for driving with a suspended license for the reason that all of the elements of driving while license suspended were included in the offense of aggravated DUI. In addition, the appellate court also reversed the defendant's conviction for illegal transportation of alcohol. At trial, the State failed to offer evidence that the empty container was the same brand of beer as the one found in the car or that the empty container had been inside the car.
Seizure
Activation of a police officer's mars lights does not result in a seizure of a motor vehicle. A seizure is effected only when the vehicle begins to yield. Village of Mundelein v. Thompson, No. 2-02-0376, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(2d Dist. 2003).
Detention following traffic stop
When a police officer sees a driver commit a traffic violation, he is justified in detaining the driver briefly. The officer may inquire about the circumstances of the observed violation. Under most circumstances, the officer may also run a quick warrant check of the driver's license. However, the detention must "last no longer then is necessary to effectuate the purpose of the stop."
If the officer detains the driver for longer than necessary to effectuate the purpose of the stop, evidence obtained as a result must be excluded. In People v. Grove, No. 5-01-0958 ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(5 th Dist. 2003), the appellate court held that the officer who stopped the defendant's vehicle was justified in running a computer check on the defendant's driver's license. In Grove, the officer observed that the registration tag on the defendant's license was obscured. A computer check of the license plate indicated that the registration had expired and that the license plate was issued to a car other than the car the defendant was driving. But, following a traffic stop, the defendant produced a registration card which the officer determined was valid for the car the defendant was driving.
Similarly, In People v. Leigh, No. 5-02-0725, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___(5 th Dist. 2003), the appellate court reversed the trial court's denial of the defendant's motion to suppress. In this case, the officer stopped the defendant's vehicle for failure to have a rear license plate light. After verifying the defendant's license, registration and proof of insurance, the officer wrote the defendant a warning ticket. After writing the warning ticket, he asked the defendant if there was anything in his truck that would cause a police dog to alert. The defendant told the officer that, while there was nothing in his truck that would cause the dog to alert, his wife's pistol was in the truck. The appellate court said that, while the stop was proper, the officer's questioning about the truck's contents exceeded the permissible scope of the stop.
Search of auto
The Second District Appellate Court has ruled that police were justified in asking for, and receiving, consent to search a vehicle following a traffic stop for reckless driving. Factors which supported the court's decision included the facts that the driver did not have identification, was nervous and shaking, the stop occurred at night, there were four passengers in the vehicle and the officer observed furtive movements. People v. Moore, No. 2-01-1347, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003).
Double jeopardy
Double jeopardy principles would not bar the retrial of a DUI charge where the trial court, out of necessity, declares a mistrial and schedules a new trial. In People v. Bagley, 338 Ill.App.3d 978, 789 N.E.2d 860, 273 Ill.Dec. 686 (2d Dist. 2003), after the jury was sworn, but before the first witness was called, the State located a videotape of the defendant's arrest that was believed to be lost. The State explained that the arresting officer had locked the tape in his filing cabinet instead of placing it in the evidence room and that the State was unaware of this fact until the officer arrived in court to testify. While the defense attorney maintained that the trial court should have excluded the tape, the appellate court disagreed holding that excluding evidence is limited to the most extreme discovery violations. Similarly, a mistrial would be properly declared in the event a jury is unable to reach a verdict. People v. Smith, 338 Ill.App.3d 254, 788 N.E.2d 802, 273 Ill.Dec. 211 (2d Dist. 2003). But, it would not be necessary to declare a mistrial based upon the fact that a juror's mother-in-law had suffered a broken leg and the fact that the jury had deliberated three hours and 15 minutes without reaching a verdict. People v. Largent, 337 Ill.App.3d 835, 786 N.E.2d 1102, 272 Ill.Dec. 268 (4 th Dist. 2002).
Double jeopardy--Compulsory joinder
The charge of squealing of tires is not a lesser included offense of reckless driving and it is not necessary that these charges be brought in a single prosecution. People v. Garcia, ___ Ill.App.3d ___, 788 N.E.2d 1201, 273 Ill.Dec. 1201(5 th Dist. 2003). In Garcia, the defendant pleaded guilty to a ticket for illegal squealing or screeching of tires. Following his guilty plea, the State filed a reckless driving charge. The appellate court ruled that the trial court properly denied the defendant's motion to dismiss on double jeopardy grounds.
Conduct of judge
Repeated interruptions of defense counsel by the trial judge while defense counsel attempted to make a closing argument may be the basis of the reversal of the defendant's conviction for a criminal offense. People v. Stevens, ___ Ill.App.3d ___, 790 N.E.2d 52, 273 Ill.Dec. 910 (1 st Dist. 2003).
Chain of custody of blood sample
In the prosecution of a DUI case, the State must establish a chain of custody when a blood sample is drawn under section 11-501.2 upon the request of a law enforcement officer and then delivered to the officer. However, in the event a blood test is conducted in the regular course of providing medical treatment, it is not necessary that the State establish a chain of custody. Instead, lab reports of blood tests obtained in the regular course of providing medical treatment are admissible in DUI prosecutions under the business records exception to the hearsay rule. 625 ILCS 5/11-501.4 People v. Henderson, ___ Ill.App.3d ___, 789 N.E.2d 774, 273 Ill.Dec. 600 (3d Dist. 2003).
Privacy of medical records
Defense counsel should be aware of the provisions of 42 USC section 290dd-2(a), which prohibit disclosure of hospital records, except as authorized by court order, to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient. Following the passage of this amendment of the U.S. Code, the U.S. Department of Health and Human Services has issued the regulation "Standards for Privacy of Individually Identifiable Health Information" which apply to health information created or maintained by health care providers. Yet to be decided by an Illinois court of review is whether the privacy provisions of the U.S. Code or the regulations of the Department of Human Services will preclude the use of a hospital blood test, taken for treatment purposes, may be used by the State in the prosecution of a DUI or reckless homicide charge.
Instruction cannot create mandatory presumption
In 1991, in an attempt to assist the prosecution in reckless homicide cases where the defendant is alleged to have been under the influence, the General Assembly amended Section 9-3(b) of the Illinois Criminal Code, 720 ILCS 5/9-3(b) to provide:
"If you find from your consideration of all the evidence that the defendant was under the influence of alcohol at the time of the alleged violation, such evidence shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary."
In People v. Pomykala, 203 Ill.2d 198, 784 N.E.2d 784, 271 Ill.Dec. 230 (2003), the Illinois Supreme Court affirmed the appellate court's decision which revised the defendant's conviction for reckless homicide. The Supreme Court held that section 9-3(b) created an unconstitutional mandatory presumption of recklessness. It should be noted that, when this Senate Bill was introduced in 1991, the Illinois State Bar Association opposed the bill arguing that it would create an impermissible mandatory presumption.
Supervision
Section 5-6-1 of the Code of Corrections (730 ILCS 5/5-6-1), authorizes the circuit court to enter an order of supervision for a person charged with a misdemeanor except that section 5-6-1(d)(1) provides, in pertinent part, that supervision may not be granted to a person convicted of a violation of section 11-501 of the Illinois Vehicle Code "...or a similar provision of a local ordinance or any similar law or ordinance of another state..." In People v. Hamalainen, No. 2-02-0004, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003), the defendant argued that his previous Wisconsin conviction for driving with a prohibited BAC is not similar to the Illinois statute for the reasons that the Wisconsin law is punishable only by fine and not jail time and, in Illinois, the prohibited BAC 0.08 whereas, in Wisconsin, the prohibited BAC is 0.10. The appellate court held that the trial court properly denied the defendant's request for supervision for the reason that the two statutes are "similar" under section 5-6-1(d) of the Code of Corrections.
While section 5-6-3.1 of the Unified Code of Corrections does not set forth a minimum supervision period, trial courts do not have discretion to place defendants on supervision which terminated instanter. The purpose of having a period of supervision is to permit a meaningful opportunity to observe the conduct of the offender over some reasonable period of time. By terminating the supervision instanter, the trial court frustrates the legislative intent and denies the State and the court opportunity to insure to the public that the defendants' conduct did not warrant criminal records. People v. Bresley, No. 2-02-0451, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003)
Submission to warrantless searches as a condition of probation
In People v. Johns, No. 4-02-0748, ___ Ill.App.3d ___, ___ N.E.2d ___, ___ Ill.Dec. ___ (4 th Dist. 2003), following a stipulated bench trial on the charges of DUI and driving while license revoked, the trial court sentenced the defendant to 24 months probation. One of the conditions of probation provided that the defendant "... submit to warrentless searches of [her] person, property, residence, motor vehicle and effects at the request of [her] probation officer or law enforcement authorities and consent to the use of anything seized as evidence in court proceedings." Pursuant to a request by the probation office, law enforcement officers conducted "a random probation check" of the defendant's residence. While the defendant was not present, the officer conducting the search claimed that the defendant's son, who the officer believed to be 16 or 17 years old gave permission to conduct the search. Three used pipes were found in the defendant's bedroom, one of which was tested and found to contain cocaine. While the trial court denied the defendant's motion to suppress, the appellate court reversed the trial court and found that reasonable suspicion was required to justify the search of the dresser drawer in the defendant's bedroom.
Imposition of extended-term sentence for
aggravated DUI
Notwithstanding the fact that section 11-501(d)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501 (d)(2)) provides that a person found guilty of aggravated DUI, if sentenced to a term of imprisonment, shall be sentenced to not less than one year and not more than three years, this would not preclude imposition of an extended-term sentence when a defendant is convicted of any felony, after having been previously convicted of the same or similar class felony or greater class felony when such conviction occurred within 10 years after the previous conviction. In People v. McCormick, No. 1-01-3628, ___ Ill.App.3d ___, 791 N.E.2d 112, 274 Ill.Dec. 316 (1 st Dist. 2003), the defendant was found guilty of aggravated DUI and felony driving with a revoked license. The trial court sentenced the defendant to five years in prison, citing his 1997 class 2 felony conviction for possessing a stolen motor vehicle as the basis for the extended term. The appellate court affirmed the trial court.
Appeal by municipality
When a municipality brings an appeal pursuant to Supreme Court Rule 604(a), the jurisdictional statement should include the fact that the prosecution has written authority from the State's Attorney to prosecute a violation of the Illinois Vehicle Code. Failure to include such statement by a municipality in the appeal of a trial court's order suppressing evidence in a DUI prosecution will deprive the appellate court authority to consider the appeal. Village of Mundelein v. Thompson, No. 2-02-0376, ___Ill.App.3d___, ___ N.E.2d ___, ___ Ill.Dec. ___ (2d Dist. 2003).
Summary suspension cases
Informant
An informant's tip to police must bear some indicia of reliability to provide a sufficient basis for a Terry-type seizure. But if information comes from a named witness, a minimum of corroboration or verification of the reliability of the information is required. In Village of Mundelein v. Thompson, No. 2-02-0376, ___ Ill.App.3d ___, ___ N.E. 2d ___, ___ Ill.Dec. ___ (2d Dist. 2003), the appellate court reversed the trial court's order rescinding the defendant's summary suspension. In this case, a male caller called the Mundelein Police Department to report that he was "following a guy in a van who seemed to be drunk" and that the van was "all over the road." He described the van and provided its full license plate number.
Time of filing petition to rescind
Section 2-118.1 (b) of the Vehicle Code provides in pertinent part:
"Within 90 days after the notice of statutory summary suspension [is] served * * *, the person may make a written request for a judicial hearing in the circuit court venue." 525 ILCS 5/2-118.1(b)
In People v. Rodriguez, ___ Ill.App.3d ___, 791 N.E.2d 707, 274 Ill.Dec. 615 (2d Dist. 2003) the appellate court held that a statute which allowed a party who had voluntarily dismissed an action to refile it up to one year later did not apply to actions to rescind a license suspension.
Miscellaneous traffic cases
Request for identification from passenger following traffic stop
In People v. Gonzalez, 204 Ill.App.2d 220, 789 N.E.2d 260, 273 Ill.Dec. 360 (2003), the Illinois Supreme Court was called upon to decide whether, following a traffic stop, police may request identification from a passenger in the vehicle. In this case, after the defendant produced paper identification, the officer ran a computer check which indicated that the defendant was a gang member who had a long criminal record and was on parole at the time. Because of this information, the officer, fearing that the defendant had a weapon, searched the defendant and discovered a small amount of cocaine. In an opinion authored by Justice Fitzgerald, the court held that the officer's request for identification from the passenger who was lawfully detained, did not render his detention unreasonable under the fourth amendment to the U.S. Constitution or article 1, section 6 of the Illinois Constitution. The court observed that the defendant was under no obligation to answer or comply with the officer's request.
Speeding
Illinois State Police currently use a speed measuring device known as a Lidar laser unit. In People v. Canulli, #4-01-0094, ___ Ill.App.3d ___, ___ N.E. 2d ___, ___Ill.Dec. ___ (4 th Dist. 2003), the defendant's conviction for traveling 80 mph in a 65 mph zone was reversed without remand for the reason that no Illinois court had addressed the admissibility of Lidar laser evidence to measure the speed of vehicles. The appellate court observed that, before a trial court may admit evidence of a new scientific theory, evidence must be introduced to establish that the methodology or scientific principle is sufficiently established to have gained general acceptance. See Frye v. United States, 293 F.1013 (DC CIR. 1923).
Overweight vehicles
Section 11-207 of the Vehicle Code, 625 ILCS 5/11-207 bars municipalities from enacting any ordinance in conflict with the provisions of the Illinois Vehicle Code. Section 11-207 further provides that municipalities may adopt additional traffic regulations which are not in conflict with the Illinois Vehicle Code,..."but such regulations shall not be effective until signs giving reasonable notice thereof are posted." In City of Decatur v. Page, ___ Ill.App.3d ___, 789 N.E.2d 1269, 273 Ill.Dec. 837 (4 th Dist. 2003), the defendant's conviction for operating an overweight vehicle was reversed because of the failure of the city to post signs alerting motorists of the city's weight restrictions.
Posted: Sun - September 28, 2003 at 04:08 PM
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