People v. Quigley

Annotate this Case
People v. Quigley, No. 82750 (6/18/98)

Docket No. 82750--Agenda 15--September 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL
QUIGLEY, Appellant.
Opinion filed June 18, 1998.

JUSTICE NICKELS delivered the opinion of the court:
Defendant was charged with two driving under the influence (DUI)
offenses, one a misdemeanor and the other a felony, in separate prosecutions
based on the same incident. The misdemeanor charge was dismissed on speedy-
trial grounds. In this appeal, we determine what effect, if any, this dismissal has
on the subsequent prosecution of the remaining, felony DUI charge. The circuit
court of Winnebago County ruled that the State could proceed on the felony
charge, and the appellate court affirmed (No. 2--95--1643 (unpublished order
under Supreme Court Rule 23)). We allowed defendant's petition for leave to
appeal (166 Ill. 2d R. 315).

BACKGROUND
The underlying factual allegations are relatively simple. On August 27,
1994, defendant was involved in a multiple-vehicle collision while driving his car
on Route 251 in or near the Village of Machesney Park. An individual in one of
the other vehicles was injured as a result of the collision, suffering a broken ankle.
A deputy sheriff of Winnebago County responded to the scene and asked
defendant to perform field sobriety tests and a breathalyzer test. Defendant failed
the field sobriety tests. The breathalyzer test revealed that defendant's blood-
alcohol content (BAC) was 0.14.
Although the underlying allegations are straightforward, the circuit court
proceedings are somewhat convoluted. Defendant was initially charged with two
ordinance violations of DUI. Defendant filed a speedy-trial demand in connection
with both of these ordinance violations.
Nearly three months later, on November 23, 1994, a grand jury indicted
defendant for aggravated DUI under section 11--501(d)(3) of the Illinois Vehicle
Code. This statute provides:
"(d) Every person convicted of committing a violation of this
Section shall be guilty of aggravated driving under the influence of alcohol
or drugs or a combination of both which shall be a Class 4 felony if:
* * *
(3) such person in committing a violation of paragraph (a) was
involved in a motor vehicle accident which resulted in great bodily harm
or permanent disability or disfigurement to another, when such violation
was the proximate cause of such injuries." (Emphasis added.) 625 ILCS
5/11--501(d)(3) (West 1992).
Section 11--501(d)(3) requires, as a predicate for aggravated DUI, a violation of
paragraph (a). Section 11--501(a) provides, in pertinent part:
"(a) A person shall not drive or be in actual physical control of any
vehicle within this State while:
1. the alcohol concentration in such person's blood or breath is 0.10
or more based on the definition of blood and breath units in Section 11--
501.2;
2. under the influence of alcohol ***." 625 ILCS 5/11--501(a)
(West 1992).
The indictment alleged aggravated DUI based on the violation of section 11--
501(a)(2). The felony charge was docketed as case 94--CF--2699.
On December 15, 1994, the ordinance charges against defendant were
dismissed. On that date, the State filed an information against defendant charging
him with a misdemeanor violation of section 11--501(a)(1), driving while having
a BAC of 0.10 or more.[fn1] The misdemeanor charge was docketed as case 94--
TR--39335.
The record states that the misdemeanor "file [was] to be set with [the]
felony charge." The misdemeanor and felony DUI charges were consolidated or
intended to be consolidated. On January 6, 1995, however, the circuit court
dismissed the felony charge of aggravated DUI. The reason for this dismissal is
unclear from the record. Thus, only the misdemeanor DUI charge remained
pending against defendant.
On January 18, 1995, defendant filed a speedy-trial demand in the felony
DUI case, which had been dismissed. On February 1, 1995, defendant was
reindicted on the same charge of aggravated DUI. The reindicted felony charge
was docketed as case 95--CF--250. Thus, defendant was again facing the
misdemeanor and felony DUI charges in two separate cases.
On June 6, 1995, defendant filed a motion to dismiss the misdemeanor
DUI case on the grounds that the State had violated his right to a speedy trial.
Defendant argued that the speedy-trial period had expired on April 10, 1995. On
September 15, 1995, the circuit court granted the motion to dismiss the
misdemeanor DUI case with prejudice on speedy-trial grounds. The State did not
appeal the dismissal.
On September 25, 1995, defendant filed a motion to dismiss the aggravated
DUI charge based generally on: (1) compulsory joinder grounds, and (2) double
jeopardy grounds. The circuit court denied the motion to dismiss. The circuit court
found that the charges were not subject to compulsory joinder because the two
DUI charges were not based on the same act. Thus, the State was not required to
bring the two DUI charges in a single prosecution. The circuit court further
determined that double jeopardy did not bar the subsequent prosecution of the
felony DUI charge. Based on this reasoning, the circuit court allowed the State to
proceed with its prosecution of the felony DUI charge. Defendant immediately
appealed the denial of the motion to dismiss on double jeopardy grounds. See 145
Ill. 2d R. 604(f).
Defendant raised the same arguments in the appellate court. Defendant's
arguments were again rejected. The appellate court agreed with the circuit court
that there was no compulsory joinder violation. The appellate court held that the
State was not required to bring the misdemeanor and felony DUI charges in one
proceeding because the offenses were not based on the same act. The appellate
court also agreed that there was no double jeopardy violation. The appellate court
held that the speedy-trial dismissal of the misdemeanor DUI charge did not
constitute an "acquittal" for double jeopardy purposes. Thus, the subsequent
prosecution was not barred.

ANALYSIS
The issue here involves the interrelationship of compulsory joinder, double
jeopardy, and speedy-trial principles. The parties raise arguments addressing each
of these areas. We consider each in turn.

I. Compulsory Joinder
Section 3--3 of the Criminal Code of 1961 requires the compulsory joinder
of certain offenses in a single prosecution. Section 3--3 provides:
"(a) When the same conduct of a defendant may establish the
commission of more than one offense, the defendant may be prosecuted for
each such offense.
(b) If the several offenses are known to the proper prosecuting
officer at the time of commencing the prosecution and are within the
jurisdiction of a single court, they must be prosecuted in a single
prosecution, except as provided in Subsection (c), if they are based on the
same act.
(c) When 2 or more offenses are charged as required by Subsection
(b), the court in the interest of justice may order that one or more of such
charges shall be tried separately." (Emphasis added.) 720 ILCS 5/3--3
(West 1992).
This statute was enacted to prevent the prosecution of multiple offenses in a
piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process.
See People v. Mullenhoff, 33 Ill. 2d 445, 447 (1965); People v. Golson, 32 Ill. 2d 398, 410-12 (1965). A prosecutor might otherwise harass a defendant through
successive prosecutions of multiple offenses and put a defendant through the
expense of several trials until the prosecutor obtains a result that satisfies him. See
Golson, 32 Ill. 2d at 410-12; People v. Kennedy, 161 Ill. App. 3d 197, 199 (1987);
People v. Lewis, 112 Ill. App. 3d 626, 629-30 (1983).
We now address the compulsory joinder issue. Section 3--3 requires joinder
where multiple charges are known to the prosecutor when the prosecution begins,
the charges are within the jurisdiction of a single court, and the charges are based
on the same act. In the instant case, the parties do not dispute that the
misdemeanor and aggravated DUI charges were known to the proper prosecuting
officer at the time the prosecution began or that the charges were within the
jurisdiction of a single court. Neither party suggests that the circuit court ordered
separate trials in the "interest of justice." 720 ILCS 5/3--3(c) (West 1992). The
parties only dispute whether the two DUI charges were "based on the same act."
The appellate court found that the charges were not based on the same act.
The appellate court stated that, although the two offenses required that defendant
be intoxicated, each offense was premised on a different act. Specifically, the
appellate court found that defendant committed the offense of misdemeanor DUI
when he started driving his vehicle. He could have been arrested and charged with
misdemeanor DUI any time before the accident. Defendant then committed the
offense of aggravated DUI when he performed some other act that led to the
accident. The appellate court stated that the offenses were completely separate acts
that occurred at separate times. Thus, the misdemeanor and aggravated DUI
charges were not required to be joined in a single prosecution.
The appellate court relied, in part, on People v. Mueller, 109 Ill. 2d 378
(1985). In Mueller, the defendant was charged with murdering two individuals and
concealing their bodies. Defendant was initially charged with the murders.
Defendant claimed self-defense and was acquitted by a jury. After the trial,
defendant was subsequently charged with homicidal concealment. He was
convicted on this charge. On appeal to this court, the defendant argued that he
should have been charged in a single prosecution because both charges were based
on the same act. This court disagreed, finding that the two charges were based on
separate acts. The shooting of the victims served as the basis for the murder
charges, and the hiding of the bodies was the basis for the concealment charge.
This court stated that joinder is not required where multiple offenses arise from
a series of closely related acts. Mueller, 109 Ill. 2d at 385. Accordingly, the
charges were not subject to compulsory joinder. See also People v. Astorga, 245
Ill. App. 3d 124, 130-32 (1993) (simultaneous possession of a stolen scale and
possession of controlled substance with intent to deliver were not based on the
same act); People v. Thomann, 197 Ill. App. 3d 516, 519-20 (1990) (possession
of videotape of child pornography on one date was separate act from possession
of advertisements containing similar material nearly two months later); People v.
Navis, 24 Ill. App. 3d 842, 846 (1974) (act of driving while intoxicated was
independent of and had no relationship to the simultaneous act of driving while
license revoked).
Defendant herein argues that the two offenses are based on a single act,
driving under the influence, and relies on People v. Mullenhoff, 33 Ill. 2d 445
(1965). In Mullenhoff, the defendant was initially charged with attempt to commit
deviate sexual assault. The defendant was found not guilty. The defendant was
then charged with attempted rape and convicted. On appeal to this court, the
defendant argued that the charges should have been brought as part of a single
prosecution because they were based on the same act. This court found that both
offenses arose out of the same conduct. Accordingly, the charges were subject to
compulsory joinder. See also People v. Hiatt, 229 Ill. App. 3d 1094, 1097 (1992)
(possession of a videotape containing child pornography and possession of photos
of different children were single act of possession); People v. Mitsakopoulos, 171
Ill. App. 3d 198, 200-01 (1988) (compulsory joinder applied to theft and forgery
charges based on the defendant's unauthorized control over the proceeds of a
check); People v. Baker, 77 Ill. App. 3d 943, 944-45 (1979) (simultaneous
possession of a controlled substance and possession of cannabis were same act of
possession for purposes of compulsory joinder). We agree with defendant that the
misdemeanor and felony DUI charges were based on the same act.
The language of the DUI statute supports this interpretation. Section 11--
501(d)(3) is violated if an individual
"in committing a violation of paragraph (a) was involved in a motor
vehicle accident which resulted in great bodily harm or permanent
disability or disfigurement to another, when such violation was the
proximate cause of such injuries." (Emphasis added.) 625 ILCS 5/11--
501(d)(3) (West 1992).
Under section 11--501(d)(3), aggravated DUI occurs when an individual commits
some form of misdemeanor DUI, in violation of paragraph (a), and other
circumstances are present. The legislature added aggravating factors that changes
the misdemeanor DUI to a Class 4 felony. The essential and underlying criminal
act, however, remains the same: driving while under the influence. The physical
injury caused to others by driving while under the influence produces the felony.
See People v. Avery, 277 Ill. App. 3d 824, 830 (1995).
Driving while under the influence may lead to some other act that, in turn,
leads to the accident. The underlying cause of both misdemeanor and aggravated
DUI, however, is driving while under the influence. The misdemeanor DUI and
the aggravated DUI charges are based on the same act. Section 11--501(d)(3) does
not require any other specific act or Vehicle Code violation. Any other act
resulting in an accident involving great bodily harm, by itself, would not support
the aggravated DUI charge.
This interpretation is further supported by the committee comments to the
compulsory joinder statute. The "same act" requirement applies primarily to two
situations: (1) where several persons are affected by one act, and (2) where several
different statutes are violated by one act. Ill. Ann. Stat., ch. 38, par. 3--3,
Committee Comments--1961, at 102 (Smith-Hurd 1989). Two examples of the
violation of several different statutes by one act include: (1) an illegal sale which
also involves illegal possession of certain property, (2) and driving a vehicle
recklessly while intoxicated. Ill. Ann. Stat., ch. 38, par. 3--3, Committee
Comments--1961, at 102 (Smith-Hurd 1989). Causing an accident while
intoxicated is similar to driving recklessly while intoxicated. Both are based on the
act of driving while intoxicated.
In the instant case, the appellate court erred in failing to recognize that the
misdemeanor DUI is a continuing offense that does not just occur when an
individual starts driving his vehicle. The misdemeanor DUI offense continues
while a defendant is driving and proximately causes the accident. Defendant was
allegedly engaged in only one continuous and uninterrupted act of driving while
under the influence. In this instance, the phrase "based on the same act" cannot
be given a hypertechnical interpretation to create multiple acts based on discrete
moments in time. See People v. Pena, 170 Ill. App. 3d 347, 350-52 (1988)
(multiple convictions for DUI and speeding could not be based on different "acts"
of DUI and speeding during the same driving episode). Accordingly, we find that
the charges should have been brought in one proceeding.

II. Double Jeopardy
Double jeopardy principles and additional protections are codified in
section 3--4 of the Criminal Code of 1961 (720 ILCS 5/3--4 (West 1992)). See
Mueller, 109 Ill. 2d at 383. Section 3--4(b)(1) addresses the consequences of
failing to comply with compulsory joinder under section 3--3. Section 3--4(b)(1)
provides:
"(b) A prosecution is barred if the defendant was formerly
prosecuted for a different offense, *** if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and *** was for
an offense with which the defendant should have been charged on the
former prosecution, as provided in Section 3--3 of this Code (unless the
court ordered a separate trial of such charge) ***." 720 ILCS 5/3--4(b)(1)
(West 1992).
Section 3--4(b)(1) therefore prohibits a subsequent prosecution where the offense
charged should have been brought in a former prosection under section 3--3.
It is well settled, however, that section 3--4(b)(1) only applies where there
was a conviction or acquittal in the former prosecution. See People v. Miller, 35 Ill. 2d 62, 64-66 (1966); People v. Piatt, 35 Ill. 2d 72, 73-74 (1966); People v.
Lewis, 112 Ill. App. 3d 626, 630 (1983); People v. Peterson, 108 Ill. App. 3d 856,
859 (1982); People v. Tate, 47 Ill. App. 3d 33, 35-36 (1977). For purposes of the
statute, "[a]n `acquittal' occurs when the trier of facts--the jury, or the court when
a jury is waived--renders a verdict or finding of not guilty." Ill. Ann. Stat., ch. 38,
par. 3--4, Committee Comments--1961, at 125 (Smith-Hurd 1989). The Criminal
Code defines an "acquittal" as "a verdict or finding of not guilty of an offense,
rendered by a legally constituted jury or by a court of competent jurisdiction
authorized to try the case without a jury." 720 ILCS 5/2--1 (West 1992). An
acquittal generally requires some resolution of a defendant's factual guilt or
innocence. See United States v. Scott, 437 U.S. 82, 97-99, 57 L. Ed. 2d 65, 78-79,
98 S. Ct. 2187, 2197-98 (1978); People v. Tripp, 208 Ill. App. 3d 1006, 1009-11
(1991); People v. Crowe, 195 Ill. App. 3d 212, 219 (1990); People v. Luallen, 188
Ill. App. 3d 862, 863-64 (1989). In the instant case, the misdemeanor DUI
prosecution was not terminated by an acquittal or conviction. It was terminated by
a pretrial order of dismissal. Accordingly, double jeopardy and related protections,
as contained in section 3--4(b)(1), do not apply to a speedy-trial dismissal, which
occurs before trial.

III. Compulsory Joinder and Speedy-Trial Principles
The parties also raise an issue concerning the interaction of compulsory
joinder and speedy-trial principles. Initially, however, we consider the scope of
review on appeal. We note that defendant took an interlocutory appeal to the
appellate court on double jeopardy grounds under Rule 604(f). In turn, this court
allowed defendant's petition for leave to appeal under Rule 315. In this appeal,
both parties have thoroughly addressed compulsory joinder, given its relationship
to double jeopardy. The parties further dispute whether the aggravated DUI charge
should be dismissed based on the interrelationship of compulsory joinder and
speedy-trial principles. We address the issue in the interest of judicial economy.
See Schrock v. Shoemaker, 159 Ill. 2d 533, 537 (1994) (scope of review not
limited to certified question where interlocutory appeal arose under Rule 308);
Bright v. Dicke, 166 Ill. 2d 204, 208 (1995); People v. Berland, 74 Ill. 2d 286,
310 (1978); 155 Ill. 2d R. 366(a)(5).
Compulsory joinder requires the State to bring multiple charges in a single
prosecution. The charges are tried together unless the circuit court determines that
a separate trial is required in the interest of justice. See 720 ILCS 5/3--3(c) (West
1992). Once a speedy-trial demand is filed, the multiple charges are subject to the
same speedy-trial period. If the charges are required to be brought in a single
prosecution, the speedy-trial period begins to run when the speedy-trial demand
is filed, even if the State brings some of the charges at a later date. "Where new
and additional charges arise from the same facts as did the original charges and
the State had knowledge of these facts at the commencement of the prosecution,
the time within which trial is to begin on the new and additional charges is subject
to the same statutory limitation that is applied to the original charges." People v.
Williams, 94 Ill. App. 3d 241, 248-49 (1981); see also People v. Stanley, 266 Ill.
App. 3d 307, 309-11 (1994); People v. Hinkle, 234 Ill. App. 3d 663, 666-68
(1992); People v. Hawkins, 212 Ill. App. 3d 973, 979-81 (1991); People v.
Howard, 205 Ill. App. 3d 702, 710 (1990); People v. Wilkey, 202 Ill. App. 3d 756,
758 (1990); People v. Crowe, 195 Ill. App. 3d 212, 214-16 (1990); People v.
Alcazar, 173 Ill. App. 3d 344, 354 (1988); People v. Rodgers, 106 Ill. App. 3d
741, 744 (1982); People v. King, 8 Ill. App. 3d 2, 4-6 (1972).
The State argues that the misdemeanor and aggravated DUI charges were
not subject to the same speedy-trial limitation. The State relies on subsection (e)
of the speedy-trial statute (725 ILCS 5/103--5(e) (West 1992)), which discusses
the simultaneous prosecution of multiple offenses. It essentially provides that a
defendant who simultaneously demands trial on more than one charge pending
against him must be tried or found guilty after waiver of trial on, at least, one
charge within the initial 160-day period. A defendant may then be tried on the
remaining charges within another 160 days. If one of the charges was brought to
trial in a timely manner but the trial was terminated without a judgment, such as
by mistrial, the statute provides additional time within which to try the remaining
charges. See 725 ILCS 5/103--5(e) (West 1992). The State argues that this statute
gave it additional time to prosecute the aggravated DUI charge.
We reject the State's argument. Application of section 103--5(e) ordinarily
arises where the State is simultaneously pursuing two separate prosecutions against
a defendant. Section 103--5(e) preserves a defendant's right to a speedy trial while
also lessening the State's burden of preparing more than one charge for trial. See
People v. Cavitt, 246 Ill. App. 3d 514, 520 (1993). The statute provides additional
time as long as the State elects to proceed on one of the charges within the initial
160-day period, either by trial or by guilty plea. See People v. Beard, 271 Ill.
App. 3d 320, 325-28 (1995); Cavitt, 246 Ill. App. 3d at 520; People v. Holmes,
234 Ill. App. 3d 931, 939-40 (1992).
The instant case involves multiple charges that were required to be tried
together. There was no trial or plea of guilty on either charge within the initial
160-day period. Instead, the misdemeanor DUI charge was dismissed on speedy
trial grounds because it had not been brought to trial within the requisite time. The
State cannot obtain more time on the aggravated DUI charge by relying on the
fact that the misdemeanor DUI charge was terminated by the State's own action.
Thus, section 103--5(e) does not apply.
The State also argues that defendant invited error by preventing
consolidation of the cases. On June 6, 1995, defendant filed a motion to dismiss
the misdemeanor DUI case on speedy-trial grounds. Defendant argued that the
speedy-trial period had run on April 10, 1995. While the motion was pending, the
State apparently requested consolidation of the two cases on July 3, 1995, and
defendant objected. It is not clear from the record the basis of the objection, and
the State did not obtain a ruling on its request for consolidation. The circuit court
later ruled that the speedy-trial period had run. The State argues that it sought to
consolidate the two cases and that defendant objected. The State argues that a
party may not invite error and thereafter seek relief from that error.
The State's argument of invited error is without merit for several reasons.
First, defendant cannot be said to have invited error where the State never
obtained a ruling on its request for consolidation. Second, the circuit court
determined that the speedy-trial period on the misdemeanor DUI case had run
before June 6, 1995. The State's request to consolidate on July 3, 1995, was
therefore untimely. As stated earlier, because the DUI offenses should have been
brought in a single prosecution, both offenses were subject to the same speedy-
trial limitation. Third, the State has not shown how defendant, by objecting,
prevented the State from proceeding on the cases within the speedy-trial period.
Accordingly, defendant did not invite error.
In the instant case, the circuit court determined that the speedy-trial period
had run on the misdemeanor DUI charge. The State could have appealed that
determination. See 145 Ill. 2d R. 604(a)(1); 725 ILCS 5/114--1(a)(1) (West 1992);
725 ILCS 5/103--5 (West 1992). It did not. Because the State did not appeal this
determination, we do not consider the correctness of the dismissal of the
misdemeanor DUI charge on speedy-trial grounds. The State may not now seek
to relitigate the issue. The aggravated DUI charge was essentially a new and
additional charge that should have been brought with the misdemeanor DUI charge
and was subject to the same speedy-trial limitation. The State did not act in a
timely manner to bring the two related charges in a single proceeding. The
aggravated DUI charge is therefore barred on speedy-trial grounds.

CONCLUSION
For the foregoing reasons, the prosecution of the aggravated DUI charge
is barred. The judgment of the appellate court and the order of the circuit court
are reversed.

Appellate court judgment reversed;
circuit court order reversed.


[fn1] The statute was later amended. This section is now violated if an individual
drives with a BAC of 0.08. See Pub. Act 90--43, sec. 5, eff. July 1, 1997. The
amendment does not apply to this case.