                                No. 2--08--0454
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE CITY OF WHEATON,                   ) Appeal from the Circuit Court
                                       ) of Du Page County.
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 07--DT--5695
                                       )
MATTHEW LOEROP,                        ) Honorable
                                       ) Cary B. Pierce,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUDSON delivered the opinion of the court:

       Defendant, Matthew Loerop, entered an open plea of guilty to driving while under the

influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2006)), as adopted by a Wheaton

ordinance. The trial court sentenced him to one year of supervision and fined him $750. Defendant

moved to reconsider, arguing that the $750 fine, which was the minimum fine allowed under the

Wheaton City Code (Wheaton Code) (Wheaton City Code §70--602(1), (4) (eff. December 15,

2003)), was improper because the applicable state laws do not provide a minimum fine. The trial

court denied the motion, and defendant timely appealed. On appeal, defendant argues that Wheaton

may not require DUI defendants to pay a minimum fine when the applicable state laws do not set a

minimum. We disagree, and, thus, we affirm.

       In addressing the issue raised on appeal, i.e., whether Wheaton may impose a minimum fine

for a DUI offense when the applicable state laws do not, we note, as the parties recognize, that this
No. 2--08--0454


court has already determined that a municipality may impose a minimum fine for a traffic offense if

the state laws do not do so. See City of De Kalb v. White, 227 Ill. App. 3d 328, 330-31 (1992).

Nevertheless, defendant urges us to reconsider White, as, under defendant's view, "White [is]

inconsistent with the clear intent of the General Assembly that the Illinois Vehicle Code be uniform

throughout the State and that no municipality may enact an ordinance in conflict with its provisions."

       A consideration of the issue raised necessarily begins with the Illinois Constitution, which

provides that local units of government may become home rule units. 1 Ill. Const. 1970, art. VII, §6.

Home rule units may:

       "[e]xcept as limited by this Section, *** exercise any power and perform any function

       pertaining to its government and affairs including, but not limited to, the power to regulate

       for the protection of the public health, safety, morals and welfare[.]" Ill. Const. 1970, art.

       VII, §6(a).

This power granted to home rule units does not have to be exclusive. Rather, home rule units may

exercise power concurrently with the state. The Illinois Constitution dictates:

                  "Home rule units may exercise and perform concurrently with the State any power or

       function of a home rule unit to the extent that the General Assembly by law does not

       specifically limit the concurrent exercise or specifically declare the State's exercise to be

       exclusive." Ill. Const. 1970, art. VII, §6(i).




       1
           As this court may take judicial notice of matters that are easily verifiable (see Cartwright v.
Moore, 394 Ill. App. 3d 1, 5 (2009)), we observe that Wheaton is a home rule unit.

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         In determining whether a home rule unit may legislate in a specific area, we bear in mind that

the "[p]owers and functions of home rule units shall be construed liberally." Ill. Const. 1970, art. VII,

§6(m).

         As can be seen, municipalities have expansive powers to govern as they deem proper. The

only limits on a municipality's autonomy are those imposed by the Illinois Constitution or by the

Illinois General Assembly exercising its authority to preempt municipalities in specific instances.

         Given those limitations, the question then becomes whether the Illinois General Assembly

preempted municipalities from setting minimum fines for those convicted of DUI. Citing sections

11--207 and 11--208.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11--207, 11--208.1

(West 2006)), defendant argues that Wheaton may not impose a minimum fine for DUI when the

State does not. Section 11--208.1 provides:

                  "The provisions of this Chapter of this Act, as amended, and the rules and regulations

         promulgated thereunder by any State Officer, Office, Agency, Department or Commission,

         shall be applicable and uniformly applied and enforced throughout this State, in all other

         political subdivisions and in all units of local government." 625 ILCS 5/11--208.1 (West

         2006).

From this, defendant argues that Wheaton may not set a minimum fine for a DUI offense, because

to do so would require that the Vehicle Code not be uniformly applied. To be sure, a reading of

section 11--208.1 of the Vehicle Code might suggest that, because the DUI offense with which

defendant was charged refers to a state charge that falls within the same chapter and act as section

11--208.1 of the Vehicle Code, Wheaton may not set a minimum fine for a DUI offense. However,




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No. 2--08--0454


section 11--207 suggests otherwise. After again emphasizing that the provisions of the chapter

should be applied uniformly throughout the state, section 11--207 states:

               "[N]o local authority shall enact or enforce any ordinance rule or regulation in conflict

       with the provisions of this Chapter unless expressly authorized herein." 625 ILCS 5/11--207

       (West 2006).

Thus, in reading these sections together, Wheaton must apply the state DUI laws as written, so that

those laws are uniform throughout the state, but Wheaton may enact other DUI laws as long as those

additional laws are not in conflict with the applicable state laws. See Dundee Township v.

Department of Revenue, 325 Ill. App. 3d 218, 223 (2001) ("[i]t is presumed that statutes which relate

to the same subject are governed by one spirit and a single policy"). In determining whether there

is a conflict, we must construe the relevant state statutes and the Wheaton Code. Examining these

laws for a conflict presents a question of law, which we review de novo. Village of Mundelein v.

Franco, 317 Ill. App. 3d 512, 517 (2000).

       As relevant here, the Vehicle Code dictates that "[e]xcept as otherwise provided in this

Section, any person convicted of violating subsection (a) of this Section is guilty of a Class A

misdemeanor." 625 ILCS 5/11--501(b--2) (West 2006). Defendant was convicted under section

11--501(a)(2) of the Vehicle Code (625 ILCS 5/11--501(a)(2) (West 2006)), as adopted by a

Wheaton ordinance. Section 5--9--1 of the Unified Code of Corrections (Corrections Code) (730

ILCS 5/5--9--1 (West 2006)) delineates the maximum fine that may be imposed for various classes

of crimes. Section 5--9--1(a)(2) of the Corrections Code provides that "for a Class A misdemeanor,

[the maximum fine that may be imposed is] $2,500 or the amount specified in the offense, whichever

is greater." 730 ILCS 5/5--9--1(a)(2) (West 2006). The Wheaton Code provides that "[t]he court,



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No. 2--08--0454


upon making a finding of guilty for any offense under section 11--501 of the Illinois Vehicle Code

*** in addition to any sentencing alternative elected by the court, shall impose a fine of not less than

$750.00 nor more than $2,500.00 for each offense." Wheaton City Code §70--602(4) (eff. December

15, 2003).2

        As noted, the Vehicle Code does not provide for a minimum fine. Rather, it merely sets a

maximum fine of $2,500. In contrast, the Wheaton Code speaks to the issue of a minimum fine. That

minimum fine is $750. The question with which we are left is whether a conflict arises when a

municipal law sets a minimum fine and the applicable state laws do not. As noted, nothing prevents

municipalities from exercising authority concurrently with the state. Village of Mundelein v. Hartnett,

117 Ill. App. 3d 1011, 1015 (1983). Indeed, state and municipal regulations addressing the same

subject may differ as long as the municipal law is not inconsistent with the state statute. Hartnett, 117

Ill. App. 3d at 1015. A conflict arises when the municipal law infringes upon the spirit of the state

law or is repugnant to the state's general policies. Hartnett, 117 Ill. App. 3d at 1015. In other

contexts, courts have found that a municipal law may impose greater restrictions on particular rights

than those the state imposes. See, e.g., Peters v. City of Springfield, 57 Ill. 2d 142, 152 (1974)

(upholding ordinance providing mandatory retirement age for policemen and firemen lower than that

specified by the state statute). Turning to the precise issue before us, we note that the applicable

state laws do not provide for a minimum fine, and there is no indication that the municipal law

infringes upon or is repugnant to the state laws. Thus, in accordance with the holding in White, we



        2
            Although neither party has submitted the ordinance for our review, and on that basis we
could find the issue forfeited (see County of McHenry v. Thoma, 317 Ill. App. 3d 892, 893 (2000)),

we nevertheless choose to address the issue.

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No. 2--08--0454


conclude that the Wheaton Code and the applicable state laws do not conflict and that Wheaton may

impose a minimum fine even though the applicable state laws do not.

       For these reasons, the judgment of the circuit court of Du Page County is affirmed.

       Affirmed.

       BOWMAN and SCHOSTOK, JJ., concur.




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