People v. Parmenter , 283 Ill. App. 3d 688 ( 1996 )

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 (BAG) was .14. Defendant was also served with a notice of statutory summary suspension of his driver’s license because his BAG 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 & Education, 46 Ill. App. 3d 968, 975, 361 N.E.2d 626, 631 (1977) (suspending a professional license and prosecuting a criminal charge do 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. 56½, 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) (West 1994). 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) (West 1994). 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.

MICHELA, J., concurs.