COURT SUPERVISION AND TRAFFIC OFFENSES. Non-CDL situations

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1 COURT SUPERVISION AND TRAFFIC OFFENSES Non-CDL situations Driver s license sanctions are found in the following provisions: 1. Mandatory revocations and suspensions: 625 ILCS 5/ Discretionary revocations and suspensions: 625 ILCS 5/ The violation code itself. This is rare. Some examples include leaving the scene type-offenses (625 ILCS 5/ et seq); passing a stopped school bus (625 ILCS 5/ (f)); a second violation within two years for a construction zone offense (625 ILCS 5/ (g)). A special note on construction zone supervision: Supervision is not a conviction. (730 ILCS 5/ (f)) However, a supervision disposition is evidence of a violation. The construction zone statute ( ) refers to committing a violation and arguably does not require a conviction. Nonetheless, the Secretary of State will not suspend even if there are multiple supervision dispositions. This statutory language was an IDOT initiative whose language was not properly vetted. 4. Illinois Administrative Code. Driver s license issues are found at 92 Illinois Administrative Code ( IAC ), primarily Section Other than in rare circumstances (eg, 92 IAC Section (b)), the Secretary of State cannot impose suspensions or revocations through administrative fiat. He must have specific statutory authority to do so. The license sanctions under the administrative rules come about in two different fashions: o First, there are immediate action suspensions and revocations as called for by statute. (An example would be a conviction for DUI) o Non-immediate action suspensions and revocations are only imposed based upon accumulated offenses, such as those authorized by 6-206(a)(2), 6-206(a)(33) and 6-206(a)(3). Only after these triggering events appear on the driving record as convictions do the number of points become a consideration. At that juncture, the Illinois Administrative Code (92 IAC ) determines the action (whether there will be just a suspension as opposed to a revocation) and the duration of the suspension if applicable. Page 1 of 6

2 Movers Suspensions for drivers over and under 21 are authorized upon there being the requisite number of offenses against traffic regulations governing the movement of vehicles, aka movers (a)(3) and (a)(36) 92 IAC ( Definitions ) describes movers as those offenses for which points are assigned under the Illinois Offense Table ( ). Therefore, one should review the Offense Table and determine if the violation has any points assigned. If so, it is a mover. A sufficient number of them in the specified time frame will result in driver s license sanctions. It has also been suggested that the movers answer can be found at 625 ILCS 5/ Probationary license: 92 IAC This type of license grants full driving privileges automatically so long as the applicant meets these criteria: Over 21 Fewer than 74 points No prior suspensions or revocations in the past 7 years No mandatory revocations on the record Completion of a driver safety course Vacating a conviction Failing eligibility for a probationary license, the practitioner may wish to attempt to vacate a conviction. It is not unusual for the State s Attorney to agree to do so even beyond thirty days. Note that the Secretary of State mails a warning letter after the second conviction (first conviction for drivers under 21). However, most prosecutors are either unaware of this or do not care and thus are sympathetic to the plea the client didn t know he would be suspended and just sent in the money. Do not let a judge or prosecutor suggest they can t do it after 30 days. The court has authority to grant this relief pursuant to the re-vestment doctrine (Under the narrow terms of that well-established rule, litigants may revest a court which has general jurisdiction over the matter with both personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment during which postjudgment motions must ordinarily be filed (copious citations omitted). People v. Kaeding, 98 Ill. 2d 237, , 456 N.E.2d 11, 14, 74 Ill. Dec. 509, 512 (1983) Page 2 of 6

3 RDP, an illusory remedy While a Restricted Driving Permit (RDP) is a theoretical remedy for a short suspension, the Secretary of State gives no priority to deciding these cases and provides the driver with minimal lead time (the amount of lead time is completely arbitrary, as no rule exists) prior to the effective date of the suspension. The reality is that if the suspension is only for three months, the RDP will be useless or nearly so. Perhaps a modest hearing fee to be used solely to staff the Department of Administrative Hearings would be appropriate so that youthful drivers do not lose summer jobs and/or be forced to leave school. The myriad traffic-related prohibitions against supervision There are numerous exceptions to authorized dispositions of court supervision. Keep in mind however that it is the position of the Office of the General Counsel of the Secretary of State that the Secretary is required to accept unauthorized dispositions if the court so orders and the State s Attorney declines to prosecute an appeal. Exceptions to supervision are found at 730 ILCS 5/ Highlights (there are more; read the statute) include: 1. Supervision is not available if the defendant, pursuant to 730 ILCS 5/5-6-1(d), has previously been: convicted of DUI, including out-of-state; granted court supervision for DUI, including an out-of-state equivalents to supervision; convicted of, or granted court supervision for, reckless driving (including out-of-state) where the disposition resulted from a plea agreement, even if the plea agreement did not include a DUI busted down to reckless driving. In sum, we conclude that the plain language of section 5 6 1(d)(3) precludes a sentence of court supervision for driving under the influence of alcohol if the defendant has previously pled guilty to reckless driving under a plea agreement. The phrase plea agreement is not limited or conditioned in any way. Accordingly, there is no requirement for the plea agreement to reduce a charge of driving under the influence of alcohol to reckless driving. People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 189, 902 N.E.2d 667, 673, 327 Ill. Dec. 546, 552 (2009) The statute refers to a guilty plea or a stipulation to the facts supporting a finding of guilty. Perhaps rather than stipulating to the facts, the parties should consider stipulating to the testimony the state would present in support of a reckless driving conviction. This would seem preferable to consuming the court s time by engaging in a pro forma hearing in which Page 3 of 6

4 the only witness would be the officer, reciting facts in support of the charge, with no cross examination by the defendant. 2. Supervision is available only once every ten years for driving while suspended or revoked where the suspension or revocation is DUI-related. 730 ILCS 5/5-6-1(j) 3. Supervision is not available if the court has granted the defendant supervision twice within the prior twelve months, measured from the date of the imposition of the first court supervision sentence to the date of the third (i.e., pending) violation. (730 ILCS 5/5-6-1(k)) DUI supervision does not count as one of the two prior supervisions. 4. Supervision is not available for any speeding ticket where the defendant exceeds the posted limit in an urban area by greater than 25 MPH or in a nonurban area by greater than 30 MPH. (730 ILCS 5/5-6-1(p) and (q)) (Speeding 31 or more over is a Class-B misdemeanor and 40 or more over is a Class-A). 5. The court cannot grant court supervision for speeding in a school zone. (730 ILCS 5/5-6-1(f)) Prosecutors are reluctant to amend to an straight speeding violation. However, a conviction for a school zone speeder does not result in an immediate action suspension. Contrast this to passing a stopped school bus. There is no supervision (730 ILCS 5/5-6-1(f)) and there is a mandatory 90-day suspension. (625 ILCS 5/ (f)) 6. Supervision for a violation of the Liquor Control Act of 1934 (youthful offenders who receive under aged consumption, possession, etc.) results in a suspension for 3 months. (625 ILCS 5/6-206(a)(43)) A conviction results in a suspension for 6 months. (6-206(a)(38) and 92 IAC ) Do not confuse the consumption tickets with a situation in which the youthful offender is found with a form of identification belonging to someone over the age of 21. Even if no ticket is issued and even if the offender is not operating a motor vehicle, the Secretary of State will suspend for 12 months. (625 ILCS 5/6-206(a)(10) and 92 IAC a) 3)) 7. New exception: 730 ILCS 5/5-6-1(r); (PA ) prohibits court supervision for any moving violation that is the proximate cause of the death of another if the defendant has ever received court supervision for any moving violation or ever had a driver s license that was revoked, suspended or canceled. This provision, coupled with 625 ILCS 5/6-205(a)(16), means that if a driver is guilty of committing a moving violation in which someone dies due to the driver s cause, the driver will be revoked automatically if he has ever had supervision in the past. CDL Issues The Uniform Commercial Driver s License ( CDL ) Act is found at 625 ILCS 5/6-500 et. seq. The definitions are important. They trump all other Illinois Vehicle Code definitions. Page 4 of 6

5 (6) Commercial Motor Vehicle: The truck. (22.5) Non-CMV: Everything that is not a CMV. (8) Conviction: Any disposition other than dismissal is a conviction for CDL analysis. Supervision does not help as far as the CDL is concerned. (However, supervision will still have the same protective effect upon base ( regular ) driving privileges). (27) Serious Traffic Violations ( STV ): There are immediate action and nonimmediate STV. A single violation, standing alone, may or may not result in a disqualification (DQ) of the CDL depending upon the offense. Any driver to whom the Secretary of State issues a CDL is a holder of a CDL even if operating a non-cmv at the time of the offense. Immediate action disqualifications committed by any holder of a CDL (regardless of the vehicle being driven) (625 ILCS 5/6-514(a)): (1) Refusing a chemical (blood or breath) test (2) Registering over the legal limit:.04 if operating a CMV.08 if operating a non-cmv (3) Conviction (including supervision) for DUI, leaving the scene, commission of a felony while operating a motor vehicle (4) Driving while base privileges are suspended, revoked or canceled (5) Causing a fatality through the negligent operation of a motor vehicle According to the statute, any CDL DQ must be contested through a Secretary of State administrative hearing. (625 ILCS 5/6-520) However, the Secretary of State will remove a DQ from the driver s record upon receiving a court order to rescind the Statutory Summary Suspension in the case of either a refusal or a positive test. But unless the DUI charge itself is resolved satisfactorily (dismissal or reduction), the driver will suffer a DQ once the DUI disposition is reported to the Secretary of State, even if there was an SSS rescission. Incidentally, the Secretary of State will not double up on the DQs and impose one for an SSS and another for a DUI conviction arising out of the same offense. The total DQ time for a single incident will be 12 months, unless it constitutes a second disqualifying offense, in which case the driver is DQ ed for life. 625 ILCS 5/6-514(b) Non-immediate action STV (625 ILCS 5/6-514(e)) The rules differ here depending upon whether the driver is operating a CMV or a non-cmv: Page 5 of 6

6 RDP If the violations occur while operating a CMV: o Two convictions in a period of 3 years will result in a 2-month DQ o Three convictions in a period of 3 years will cause a DQ for 4 months If the violations occur while operating a non-cmv, there will be no DQ unless the offenses would cause a suspension or revocation of base privileges. The Secretary of State may not issue an RDP for a CDL that is revoked, suspended, canceled or disqualified. 625 ILCS 5/6-205(j) Supervision for drivers under age 21 The GDL and why the youthful driver needs supervision GDL is 625 ILCS 5/6-107 Anyone under age 18 is ineligible for a driver s license and must obtain a GDL. (625 ILCS 5/6-103) A conviction under 6-101(no valid license) or a conviction that requires mandatory revocation under shall make the applicant ineligible for driving privileges prior to the age of 18. (625 ILCS 5/6-107(c)) The GDL includes various restrictions regarding curfews, cellphone usage and number of allowable occupants. During the first 12 months of a GDL, a conviction for any moving offense or for a seat belt violation will extend the GDL restrictions by six months. (625 ILCS 5/6-106(e), (g)) If anyone operating under an Instruction Permit is convicted of a moving violation or a seat belt offense, the driver shall remain in Instruction Permit status for an additional 9 months. (625 ILCS 5/6-106(d)) Obtaining supervision while holding a GDL Drivers under 21 who commit Serious Traffic Violations (625 ILCS 5/ ): o May only receive supervision on one occasion o Must attend traffic safety school in order to receive supervision (730 ILCS 5/5-6- 1(h)) Drivers between ages 18 and 21 who desire supervision must attend traffic safety school if they commit: o Any moving violation o A seat belt violation or o A violation of the GDL (730 ILCS 5/5-6-1(h-1)) Drivers under the age of 18 must also be present with a parent or guardian unless excused by the court. (730 ILCS 5/5-6-1(n)) Page 6 of 6

7 UPDATE ON DISCOVERY OF VIDEOTAPES Kladis People v. Kladis, 2011 IL , 960 N.E.2d 1104, 355 Ill. Dec. 933 Five days after her arrest and 25 days prior to the first appearance, Defendant filed a Petition to Rescind the SSS and also served on the state a notice pursuant to Supreme Court Rule 237 (b) requesting production of all in-custody videotapes. At the first appearance, the videotape was not present. The arresting officer testified that he had activated his dash camera prior to making the stop and described what the camera captured, namely, the substance of the arrest. The hearing was continued to a later date but not before defense counsel requested discovery pursuant to People v. Schmidt, 56 Ill.2d 572, 309 N.E.2d 557 (1974). When the parties returned to court at the later date, the state advised the court that the video had been destroyed only hours prior to the first appearance, in accordance with departmental policy. The state did not dispute that it had received defendant s Rule 237 notice prior to destruction of the video. The court then granted defendant leave to move for sanctions as provided for under Rule 219. At a later hearing the court entered a sanction that precluded the state from providing any evidence of what occurred beginning five seconds prior to the time the tape would have started and ending at the time the defendant was removed from the scene (when the tape would have stopped automatically upon activation of the squad lights). The SSS hearing proceeded and the court rescinded. The state ultimately abandoned its appeal of the sanction order in connection with that proceeding. The trial court subsequently extended its ruling in the SSS case to the criminal case and entered identical sanctions as it had with regards to the SSS. The state filed a certificate of impairment and notice of appeal. The state argued on appeal that the sanctions should not have extended to the criminal prosecution, asserting that Schmidt limited misdemeanor discovery to a list of witnesses, any confession and any evidence tending to negate the defendant s guilt. The Supreme Court rejected that argument. In its narrowest sense, the holding is that videotapes are an essential piece of evidence in a DUI prosecution. The court also refused to accept the state s contention that the ruling effectively precluded the state from prosecuting the case. The Supreme Court held that the sanction was narrowly tailored and that the state could still have presented evidence of defendant s intoxication beyond what appeared on the video, but chose not to do so. Page 1 of 3

8 More broadly, though, the Supreme Court appears to be saying what defense attorneys have argued for years this is not 1974 and DUI is no longer a traffic offense with an extra wrist slap thrown in for good measure. Defense counsel should take advantage of the expansive language of Kladis to seek discovery of items such as source codes for breath test machines and uncertainty measurements for blood tests. Post-Kladis case law People v. Schroeder, 2012 IL App (3d) , 969 N.E.2d 987, 360 Ill. Dec. 942 Defendant was charged with an overweight truck violation. He raised, among other things, a Kladis motion due to the absence of a video. The court denied the motion because the defendant waited until the middle of the motion to suppress hearing to request the video. People v. White, 2013 IL App (4th) U, 2013 WL , appeal pending (May 2013) In this Rule 23 order, the defendant s Kladis motion in a vehicular hijacking case was denied because he failed to request preservation of a CD of a statement he gave. People v. Walker, 2013 IL App (4th) U, 2013 WL In another Rule 23 decision, defendant, who was charged with DWS, unsuccessfully asserted a Kladis motion. The court held that the defendant failed to provide evidence that a video in fact had existed and then had subsequently been destroyed. Rather, the lack of a video was due to a technical glitch that resulted in the video s never being made. Furthermore, there was no evidence that the video would have exonerated defendant. Case law summary: Preserving your Kladis rights requires a timely request (In fact, in a footnote, the Supreme Court suggested the better practice would be to make the preservation request in both the administrative and criminal proceedings). Second, be certain the record includes a general description of what the video would have shown had it been preserved. Third, be prepared to demonstrate that the video in fact at one time existed and was not lost due to a technological problem. Finally, expect the court to issue a narrowly tailored sanction if you satisfy the first three requirements. Statutory updates 20 ILCS 2610/30(b) State police are required to equip all squad cars with devices that capture both video and audio and to preserve the recordings for at least 90 days. Page 2 of 3

9 720 ILCS 5/14 3(h 15) Whenever a law enforcement agency makes an in-squad video and audio recording in connection with either law enforcement or investigative duties, that recording must be retained for a minimum period of 90 days. Its contents are evidence in any criminal, civil or administrative proceeding. People v. Wachholtz, 2013 IL App (4th) , 988 N.E.2d 765, 370 Ill. Dec. 567 (Interpreting 720 ILCS 5/14 3(h 15)) Defendant charged with DWR and drug possession. Defendant moved to suppress, as the DVD of the arrest was recycled. Motion denied as suppression would have been too severe of a sanction given Defendant failed to show how the DVD would have assisted in his defense. Page 3 of 3

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