People v. Parmenter
Annotate this Case
No. 3 95 0496
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit
) Bureau County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95 TR 844
)
CHRISTOPHER PARMENTER, ) Honorable
) Terence M. Madsen
Defendant-Appellant. ) Judge, Presiding.
)
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Defendant, Christopher Parmenter, was arrested for driving
under the influence of alcohol (DUI) (625 ILCS 5/11 501(a)(2) (West
1994)) on December 31, 1994, and consented to take a breath test.
The test results showed that defendant's blood-alcohol
concentration (BAC) was .14. Defendant was also served with a
notice of statutory summary suspension of his driver's license
because his BAC was above the legal limit of .10. See 625 ILCS
5/11 501.1 (West 1994).
Defendant filed a petition to rescind the summary suspension
of his license. The trial court denied the petition after a
hearing, and defendant's license was suspended. Defendant then
filed a motion to dismiss the DUI charge, alleging that the summary
suspension created former jeopardy and that a subsequent criminal
prosecution would violate his rights against double jeopardy under
the United States and Illinois constitutions. See U.S. Const.,
amend. V; Ill. Const. 1970, art. I, 10. The trial court denied
the motion to dismiss, and defendant appeals. We affirm and remand
for further proceedings.
The test for a double jeopardy violation requires a
determination of (1) whether the civil action constitutes
"punishment" for purposes of double jeopardy, (2) whether the civil
and criminal proceedings are for the same offense, and (3) whether
the two proceedings are separate. The second proceeding is barred
only if all three questions are answered in the affirmative. In re
P.S., 169 Ill. 2d 260, 272-73, 661 N.E.2d 329, 335-36 (1996).
Recently, the court in People v. Fasbinder, 278 Ill. App. 3d
855, 858-59, 663 N.E.2d 1052, 1055 (1996), rejected a double
jeopardy challenge similar to that raised by the defendant in this
case. Relying on the reasoning in People v. Dvorak, 276 Ill. App.
3d 544, 658 N.E.2d 869 (1995), the Fasbinder court upheld the
validity of utilizing both administrative summary suspension and
criminal DUI proceedings.
In Dvorak, the court stated that "'whether a given civil
sanction constitutes punishment in the relevant sense requires a
particularized assessment of the penalty imposed and the purposes
that the penalty may fairly be said to serve.'" Dvorak, 276 Ill.
App. 3d at 547, 658 N.E.2d at 873, quoting United States v. Halper,
490 U.S. 435, 448, 104 L. Ed. 2d 487, 501, 109 S. Ct. 1892, 1901
(1989). The court noted that Illinois courts had upheld the
suspension of a defendant's professional license after he had been
convicted of related criminal charges. Dvorak, 276 Ill. App. 3d at
551-52, 658 N.E.2d at 876, citing Kaplan v. Department of
Registration and Education, 46 Ill. App. 3d 968, 975, 361 N.E.2d 626, 631 (1977) (suspending a professional license and prosecuting
a criminal charge does not constitute double jeopardy). After
citing decisions in other states that had upheld the use of
administrative license suspensions and criminal DUI prosecutions,
the court found that although the suspension of a driver's license
"may have the incidental effect of deterring impaired drivers", the
summary suspension statute is "fairly characterized as a remedial
civil sanction rather than as punishment for double jeopardy
purposes." Dvorak, 276 Ill. App. 3d at 551, 658 N.E.2d at 875-76.
Thus, the separate administrative and criminal proceedings in this
case did not constitute double jeopardy.
Our supreme court recently found in In re P.S. that the double
jeopardy clause was violated when a defendant was prosecuted for
unlawful possession of a controlled substance (Ill. Rev. Stat.
1991, Ch. 56 1/2, par. 1402(c)) after his car had been forfeited in
a civil proceeding brought under the Drug Asset Forfeiture
Procedure Act (725 ILCS 150/1 et seq. (West 1992)). After
reviewing the analysis used in P.S., the Fasbinder court held that
its categorical approach to the double jeopardy issue would not
apply to the suspension of drivers' licenses because forfeiture
statutes have generally been deemed punitive, while the summary
suspension statute was adopted to promote highway safety.
Fasbinder, 278 Ill. App. 3d at 857-58, 663 N.E.2d at 1054. The
summary suspension statute is an attempt to keep unqualified
persons from posing a special risk of harm to the public. Further,
the government does not receive a financial benefit from the
summary suspension of a defendant's driver's license as it does
from the state's forfeiture provisions. Fasbinder, 278 Ill. App.
3d at 858, 663 N.E.2d at 1054.
Having distinguished P.S., the court in Fasbinder concluded
that the holding in Dvorak was still good law. Fasbinder, 278 Ill.
App. 3d at 858, 663 N.E.2d at 1055; see also People v. Eck, 279
Ill. App. 3d 541, 545, 664 N.E.2d 1147, 1149-50 (1996) (adopting
analysis of "punishment" for double jeopardy purposes used in
Dvorak). We agree, and also find that there is no violation of
defendant's double jeopardy rights in the instant case because the
administrative summary suspension and criminal DUI proceedings
require different elements of proof. Fasbinder, 278 Ill. App. 3d
at 858, 663 N.E.2d at 1054, citing P.S., 169 Ill. 2d at 273, 661 N.E.2d at 336.
The relevant portion of the DUI statute under which defendant
was charged requires the state to prove that he was acting under
the influence of alcohol. 625 ILCS 5/11 501(a)(2). In contrast,
the applicable part of the summary suspension statute only requires
a showing that defendant submitted to a breath test that registered
a BAC of .10 or more. 625 ILCS 5/11 501.1(d). Because the
administrative and criminal proceedings were premised on different
allegations and required different proofs by the state, the double
jeopardy clause was not violated in this case. See P.S., 169 Ill. 2d at 277, 661 N.E.2d at 337.
For the reasons stated, the judgment of the circuit court of
Bureau County is affirmed, and the case is remanded for further
proceedings consistent with this order.
Affirmed and remanded for further proceedings.
HOLDRIDGE, P.J., dissents, and MICHELA, J., concurs.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit
) Bureau County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95 TR 844
)
CHRISTOPHER PARMENTER, ) Honorable
) Terence M. Madsen
Defendant-Appellant. ) Judge, Presiding.
)
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Defendant, Christopher Parmenter, was arrested for driving
under the influence of alcohol (DUI) (625 ILCS 5/11 501(a)(2) (West
1994)) on December 31, 1994, and consented to take a breath test.
The test results showed that defendant's blood-alcohol
concentration (BAC) was .14. Defendant was also served with a
notice of statutory summary suspension of his driver's license
because his BAC was above the legal limit of .10. See 625 ILCS
5/11 501.1 (West 1994).
Defendant filed a petition to rescind the summary suspension
of his license. The trial court denied the petition after a
hearing, and defendant's license was suspended. Defendant then
filed a motion to dismiss the DUI charge, alleging that the summary
suspension created former jeopardy and that a subsequent criminal
prosecution would violate his rights against double jeopardy under
the United States and Illinois constitutions. See U.S. Const.,
amend. V; Ill. Const. 1970, art. I, 10. The trial court denied
the motion to dismiss, and defendant appeals. We affirm and remand
for further proceedings.
The test for a double jeopardy violation requires a
determination of (1) whether the civil action constitutes
"punishment" for purposes of double jeopardy, (2) whether the civil
and criminal proceedings are for the same offense, and (3) whether
the two proceedings are separate. The second proceeding is barred
only if all three questions are answered in the affirmative. In re
P.S., 169 Ill. 2d 260, 272-73, 661 N.E.2d 329, 335-36 (1996).
Recently, the court in People v. Fasbinder, 278 Ill. App. 3d
855, 858-59, 663 N.E.2d 1052, 1055 (1996), rejected a double
jeopardy challenge similar to that raised by the defendant in this
case. Relying on the reasoning in People v. Dvorak, 276 Ill. App.
3d 544, 658 N.E.2d 869 (1995), the Fasbinder court upheld the
validity of utilizing both administrative summary suspension and
criminal DUI proceedings.
In Dvorak, the court stated that "'whether a given civil
sanction constitutes punishment in the relevant sense requires a
particularized assessment of the penalty imposed and the purposes
that the penalty may fairly be said to serve.'" Dvorak, 276 Ill.
App. 3d at 547, 658 N.E.2d at 873, quoting United States v. Halper,
490 U.S. 435, 448, 104 L. Ed. 2d 487, 501, 109 S. Ct. 1892, 1901
(1989). The court noted that Illinois courts had upheld the
suspension of a defendant's professional license after he had been
convicted of related criminal charges. Dvorak, 276 Ill. App. 3d at
551-52, 658 N.E.2d at 876, citing Kaplan v. Department of
Registration and Education, 46 Ill. App. 3d 968, 975, 361 N.E.2d 626, 631 (1977) (suspending a professional license and prosecuting
a criminal charge does not constitute double jeopardy). After
citing decisions in other states that had upheld the use of
administrative license suspensions and criminal DUI prosecutions,
the court found that although the suspension of a driver's license
"may have the incidental effect of deterring impaired drivers", the
summary suspension statute is "fairly characterized as a remedial
civil sanction rather than as punishment for double jeopardy
purposes." Dvorak, 276 Ill. App. 3d at 551, 658 N.E.2d at 875-76.
Thus, the separate administrative and criminal proceedings in this
case did not constitute double jeopardy.
Our supreme court recently found in In re P.S. that the double
jeopardy clause was violated when a defendant was prosecuted for
unlawful possession of a controlled substance (Ill. Rev. Stat.
1991, Ch. 56 1/2, par. 1402(c)) after his car had been forfeited in
a civil proceeding brought under the Drug Asset Forfeiture
Procedure Act (725 ILCS 150/1 et seq. (West 1992)). After
reviewing the analysis used in P.S., the Fasbinder court held that
its categorical approach to the double jeopardy issue would not
apply to the suspension of drivers' licenses because forfeiture
statutes have generally been deemed punitive, while the summary
suspension statute was adopted to promote highway safety.
Fasbinder, 278 Ill. App. 3d at 857-58, 663 N.E.2d at 1054. The
summary suspension statute is an attempt to keep unqualified
persons from posing a special risk of harm to the public. Further,
the government does not receive a financial benefit from the
summary suspension of a defendant's driver's license as it does
from the state's forfeiture provisions. Fasbinder, 278 Ill. App.
3d at 858, 663 N.E.2d at 1054.
Having distinguished P.S., the court in Fasbinder concluded
that the holding in Dvorak was still good law. Fasbinder, 278 Ill.
App. 3d at 858, 663 N.E.2d at 1055; see also People v. Eck, 279
Ill. App. 3d 541, 545, 664 N.E.2d 1147, 1149-50 (1996) (adopting
analysis of "punishment" for double jeopardy purposes used in
Dvorak). We agree, and also find that there is no violation of
defendant's double jeopardy rights in the instant case because the
administrative summary suspension and criminal DUI proceedings
require different elements of proof. Fasbinder, 278 Ill. App. 3d
at 858, 663 N.E.2d at 1054, citing P.S., 169 Ill. 2d at 273, 661 N.E.2d at 336.
The relevant portion of the DUI statute under which defendant
was charged requires the state to prove that he was acting under
the influence of alcohol. 625 ILCS 5/11 501(a)(2). In contrast,
the applicable part of the summary suspension statute only requires
a showing that defendant submitted to a breath test that registered
a BAC of .10 or more. 625 ILCS 5/11 501.1(d). Because the
administrative and criminal proceedings were premised on different
allegations and required different proofs by the state, the double
jeopardy clause was not violated in this case. See P.S., 169 Ill. 2d at 277, 661 N.E.2d at 337.
For the reasons stated, the judgment of the circuit court of
Bureau County is affirmed, and the case is remanded for further
proceedings consistent with this order.
Affirmed and remanded for further proceedings.
HOLDRIDGE, P.J., dissents, and MICHELA, J., concurs.
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