Legislative efforts to crack down on driving under the influence (DUI) were strengthened by three decisions handed down by the Illinois Supreme Court on October 5. Two involved challenges to the constitutionality of the Illinois Vehicle Code (found in Illinois Revised Statutes, 1985, chapter 95 1/2).

In one a driver whose license had been summarily suspended for DUI under sec. 11-501.1 of the code applied in circuit court for limited driving privileges under a judicial driving permit (JDP). The circuit court dismissed the petition on the ground that the code violates the principle of separation of powers by assigning an administrative function to the judiciary, since the secretary of state issues drivers' licenses.

The high court, however, reiterated its earlier position that the separation of powers is not intended to be absolute. Here it said, "We cannot say that the issuance of a JDP by a circuit court either confers undue power to one branch of government, usurps the executive branch's powers or unduly burdens the judicial branch with a nonjudicial function."

The court pointed out the difference between the secretary's power to impose restrictions on applicants for a license and the courts' power to grant a restricted JDP to a driver whose license has been suspended for DUI. Sec. 2-118(b) of the code establishes six factors that the court should consider in making its decision. The court also said that there is a difference between the secretary's authority to grant a restricted permit to a driver whose license has been revoked and a court's granting of a JDP when a license has been suspended. Justice Daniel P. Ward wrote this opinion; the case was People v. Ingraham (Docket No. 63830).

In another case the circuit court found the code unconstitutional because sec. 2-118(b) limits the hearing to the six issues Ward cited in Ingraham. saying that this would preclude questions on the validity of breath and blood tests. The high court pointed out that sec. 11-501.2 sets standards for tests and that a defendant can accordingly raise the issue of noncompliance at a recision hearing. In this case. People v. Hamilton (Docket No. 63605), the Supreme Court reversed the lower decision unanimously; Justice Howard C. Ryan wrote the opinion.

In the third case the defendant, the driver of a car which hit a tree, pleaded guilty to DUI. His passenger had died in the accident. About three weeks before the sentencing date the state dropped the DUI charge and the defendant was subsequently indicted for two counts of reckless homicide. The second count charged that his reckless act consisted of DUI. The defendant moved to dismiss on grounds of double jeopardy, and both circuit and appellate courts agreed. The Supreme Court did not, pointing out that at least one commentator has seen confusion in the Illinois Supreme Court's decisions on double jeopardy.

Ryan, explaining the confusion and the court's decision, said that "the double jeopardy test focuses on the proof necessary to prove the elements of the offense, rather than the actual evidence presented at trial," following the U.S. Supreme Court in Blockburger v. United States ((1932). 284 U.S. 299, 76 L. Ed. 306, 52 S.Ct. 180).

The principle here is: "If the defendant has been convicted of a lesser included offense, he may not be thereafter prosecuted for the greater offense." Although this defendant waived the right to a jury trial by pleading guilty, "jeopardy attaches when the plea is accepted by the court": conviction for DUI "does not establish an essential element of reckless homicide, that is, a reckless act." Ryan said. "It may be that the proof that will be used to establish the reckless homicide charge . . . will be that the defendant operated the motor vehicle while under the influence of alcohol. That, however, does not constitute double jeopardy."

The court unanimously reversed the lower courts in People v. Jackson (Docket No. 63960). remanding the case back to Kankakee circuit court.

(Justice Joseph P. Cunningham did not participate in the three DUI decisions.)

Illinois' Drug Paraphernalia Control Act (found in Illinois Revised Statutes, 1985, chapter 56 1/2, sections 2101 through 2107) was found unconstitutional October 5 by the Illinois Supreme Court because it flunked the test for precision.

One section defined drug paraphernalia as "materials of any kind which are peculiar to and marketed for" drug use, and another defined it as "any item which that person [the seller] knows or . . . reasonably should have known, to be drug paraphernalia." In the opinion written by Justice Thomas J. Moran the court explains: the legislative intention of the former definition was "to remove any uncertainty as to what constitutes drug paraphernalia by defining it with reference to the seller's marketing intentions"; the latter's use of "reasonably should have known" causes a contradiction and therefore the vagueness that voided the law. As the court put it: "[T]he marketing of an item is necessarily an intentional act and therefore it is logically impossible for one to negligently market an item for a particular use."

The decision was unanimous (Justice Joseph P. Cunningham not taking part) in People v. Monroe (Docket Nos. 63723. 63724 cons.).

The Illinois Supreme Court affirmed the constitutionality of sections of the Criminal Code establishing the offenses of criminal sexual assault and aggravated criminal sexual assault enacted by the 83rd General Assembly (Illinois Revised Statutes, 1985, ch. 38, sees. 12-13, 12-14). These replaced earlier statutes covering rape and deviate sexual assault. According to Justice Daniel P. Ward's opinion, the purpose was "to recodify the sexual offenses into a comprehensive statute with uniform statutory elements that would criminalize all sexual assaults without distinguishing between the sex of the offender or the victim and the type of sexual act proscribed."

In one 1985 case in Marion County and three cases in 1985 and 1986 from Fayette County the circuit courts had held the statute to be so vague in its definition of the offenses as to violate guarantees of due process in both the U.S. and Illinois constitutions. The Supreme Court consolidated the cases and upheld the constitutionality of the new statute.

The criminal act in the new statute centers on sexual penetration by use or threat of force, and the defendants claimed that the definition of force is so broad as to make it impossible to determine "the nature of the force that is required for the commission of the offense." They argued that the new statute would thus proscribe sexual acts between two consenting adults. The Supreme Court disagreed. Ward said that the General Assembly did not intend a new definition of force but rather "to retain the common law definition of force found in both of the repealed offenses."

Unlike the previous statutes, the new language does not raise the issue of nonconsent of the victim. Ward explained: "Although the prosecution is not required to prove nonconsent formally, it is obvious that if the prosecution shows that there was an act of sexual penetration by force, that evidence demonstrates that the act was nonconsensual. To prove the element of force is implicitly to show nonconsent."

Aggravated criminal sexual assault occurs when there is "bodily harm" to the victim. Ward countered the defendants' charges of vagueness here by saying that '"bodily harm' has a well-known legal meaning" and that "courts will assume that that is the meaning intended by the legislature."

Justices Ben Miller and Joseph F. Cunningham did not participate in People v. Haywood (Docket Nos. 63082, 63539, 63540, 63541 cons.). 

F. Mark Siebert