                                No. 2—09—0449
                          Opinion filed February 23, 2011
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kendall County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 06—CF—458
                                       )
RONALD L. NEWTON,                      ) Honorable
                                       ) Grant S. Wegner,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
       Justices Bowman and Birkett concurred in the judgment and opinion.

                                            OPINION

       After a bench trial, defendant, Ronald L. Newton, was convicted of two counts of felony

driving under the influence of alcohol (DUI) under section 11—501(d)(1)(A) of the Illinois Vehicle

Code (Code) (625 ILCS 5/11—501(d)(1)(A) (West 2006)) and two counts of DUI under section

11—501(c—1)(4) of the Code (625 ILCS 5/11—501(c—1)(4) (West 2006)). Because the charges

were based on the same conduct, the trial court entered a conviction only on one count under section

11—501(c—1)(4). This offense was a Class 1 felony because defendant had four prior convictions

of DUI. See 625 ILCS 5/11—501(c—1)(4) (West 2006). The trial court sentenced defendant to 7½

years in prison and denied his motion to reconsider the sentence. Defendant timely appealed.
No. 2—09—0449

       On appeal, defendant argues that his offense must be reduced from a Class 1 felony to a Class

4 felony, and the cause remanded for resentencing, because Public Act 94—116 (Pub. Act 94—116,

§5 (eff. Jan. 1, 2006)), which created section 11—501(c—1)(4) and made his offense a Class 1

felony, is unconstitutional. Specifically, he contends, the act violates due process because other

sections of the Code make a fifth DUI with aggravating factors only a Class 2 felony.

       We affirm, because we hold that the sections of the Code that defendant contends make a fifth

DUI a Class 2 felony apply only to a fourth DUI. Therefore, they coexist constitutionally with

section 11—501(c—1)(4), and defendant was properly sentenced as a Class 1 felon.

       Because this appeal raises questions of law, our review is de novo. People v. Maldonado

(Maldonado I), 386 Ill. App. 3d 964, 968 (2008). As statutory construction disposes of this appeal,

we examine the pertinent provisions of section 11—501 of the Code. 625 ILCS 5/11—501 (West

2006). (For convenience, we refer to section 11—501 as the “DUI statute.”) We seek to ascertain

and effectuate the legislature’s intent. Maldonado I, 386 Ill. App. 3d at 968. We rely in part on

section 6 of the Statute on Statutes:

       “Two or more Acts which relate to [the] same subject matter and which are enacted by the

       same General Assembly shall be construed together in such a manner as to give full effect to

       each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the

       Act last acted upon by the General Assembly is controlling to the extent of such conflict. ***

               An irreconcilable conflict between 2 or more Acts which amend the same section of

       an Act exists only if the amendatory Acts make inconsistent changes in the section as it

       theretofore existed.” 5 ILCS 70/6 (West 2006).




                                                 -2-
No. 2—09—0449

        If two acts may be construed so that both may stand, we must do so. People ex rel. Dickey

v. Southern Ry. Co., 17 Ill. 2d 550, 555 (1959). The legislature’s intent controls over “surface

inconsistencies” between two acts. Id. at 554.

        We turn to the relevant provisions of the DUI statute and the acts that created them.

Subsection (a) of the DUI statute sets out the elements of DUI (625 ILCS 5/11—501(a) (West

2006)). Subsection (b—2) states that, except as the DUI statute provides otherwise, a violation of

subsection (a) is a Class A misdemeanor (625 ILCS 5/11—501(b—2) (West 2006)). Defendant was

convicted under subsection (c—1)(4) of the DUI statute, which states, “A person who violates

subsection (a) a fifth or subsequent time is guilty of a Class 1 felony and is not eligible for a sentence

of probation or conditional discharge.” 625 ILCS 5/11—501(c—1)(4) (West 2006). Subsection

(c—1)(4) was created by the passage of Public Act 94—116, which was approved July 5, 2005, and

took effect January 1, 2006. Pub. Act 94—116, §5 (eff. Jan. 1, 2006).

        According to defendant, subsection (c—1)(4) makes any fifth DUI a Class 1 felony—yet,

under three other subsections of the DUI statute in effect at the time of his offense, a fifth DUI with

aggravating elements is only a Class 2 felony. These three subsections are subsection (c—1)(3) (625

ILCS 5/11—501(c—1)(3) (West 2006)); subsection (c—11) (625 ILCS 5/11—501(c—11) (West

2006)); and subsection (c—15) (625 ILCS 5/11—501(c—15) (West 2006)). Defendant cites the

versions of these subsections appearing in Public Act 94—609, which was approved August 16, 2005

(Pub. Act 94—609, §5 (eff. Jan. 1, 2006)). Public Act 94—609 in turn carried these versions over

from Public Act 94—329, which was approved July 26, 2005 (Pub. Act 94—329, §5 (eff. Jan. 1,

2006)). The three subsections, as set out in Public Act 94—329, make a “fourth or subsequent” DUI

a Class 2 felony (Pub. Act 94—329 (eff. Jan. 1, 2006)). (We shall quote these subsections in full

when we recount the pertinent history of the DUI statute.)

                                                   -3-
No. 2—09—0449

       Defendant argues that, because these provisions make a Class 1 felony a lesser included

offense of several Class 2 felonies, Public Act 94—116 violates due process. See People v. Christy,

139 Ill. 2d 172, 181 (1990). The State counters that the versions of subsections (c—1)(3), (c—11),

and (c—15) that appear in the last two public acts do not reflect the intent of the legislature. For the

reasons that follow, we agree with the State.

       The numerous and, it appears, hurried amendments that were made to the DUI statute in 2005

have been the subject of several recent opinions. See People v. Maldonado (Maldonado II), 402 Ill.

App. 3d 1068 (2010); People v. Harper, 392 Ill. App. 3d 809 (2009); People v. Gonzalez, 388 Ill.

App. 3d 1003 (2009); Maldonado I, 386 Ill. App. 3d 964; People v. Prouty, 385 Ill. App. 3d 149

(2008). We draw upon these opinions as needed, but what is fundamental is the history of the

amendment process. Before the 2005 outburst of legislation, including the passage of subsection

(c—1)(4), the pertinent subsections read as follows:

                       “[(c—1)](3) A person who violates subsection (a) *** a fourth or subsequent

               time, if the fourth or subsequent violation occurs during a period in which his or her

               driving privileges are revoked or suspended where the revocation or suspension was

               for a violation of subsection (a) ***, Section 11—501.1, paragraph (b) of section

               11—401, or for reckless homicide as defined in Section 9—3 of the Criminal Code

               of 1961, is guilty of a Class 2 felony and is not eligible for a sentence of probation or

               conditional discharge.

                                                 ***

               (c—11) Any person convicted a fourth or subsequent time for [sic] violating

       subsection (a) or a similar provision, if at the time of the fourth or subsequent violation the

       person was transporting a person under the age of 16, and if the person’s 3 prior violations

                                                  -4-
No. 2—09—0449

       of subsection (a) or similar provision occurred while transporting a person under the age of

       16 or while the alcohol concentration in his or her blood, breath, or urine was 0.16 or more

       based on the definition of blood, breath, or urine units in Section 11—501.2, is guilty of a

       Class 2 felony, is not eligible for probation or conditional discharge, and is subject to a

       minimum fine of $3,000.

                                                ***

                 (c—15) Any person convicted of a fourth or subsequent violation of subsection (a)

       or a similar provision, if at the time of the fourth or subsequent violation the alcohol

       concentration in his or her blood, breath, or urine was 0.16 or more based on the definition

       of blood, breath, or urine units in Section 11—501.2, and if the person’s 3 prior violations

       of subsection (a) or a similar provision occurred while transporting a person under the age

       of 16 or while the alcohol concentration in his or her blood, breath, or urine was 0.16 or more

       based on the definition of blood, breath, or urine units in Section 11—501.2, is guilty of a

       Class 2 felony and is not eligible for a sentence of probation or conditional discharge and is

       subject to a minimum fine of $2,500.” (Italics omitted.) Pub. Act 93—800, §5 (eff. Jan. 1,

       2005).

       Under Public Act 94—114 (Pub. Act 94—114, §5 (eff. Jan. 1, 2006)), each of these

subsections referred to a “fourth or fifth” DUI, rather than (as previously), a “fourth or subsequent”

DUI. Without any of the aggravating factors set out above, a third, fourth, or fifth DUI was known

as “aggravated” DUI (625 ILCS 5/11—501(d)(1)(A) (West Supp. 2005)) and, unless a more specific

provision applied, was a Class 4 felony. 625 ILCS 5/11—501(d)(2) (West Supp. 2005).1



       1
           Public Act 94—114 also made a sixth or subsequent DUI, even without aggravating factors,

                                                 -5-
No. 2—09—0449

       The first major amendments to the DUI statute, as far as this case is concerned, came with

the passage of Public Act 94—116, which was approved July 5, 2005.2 These amendments included

the creation of subsection (c—1)(4), in the same form as now. They also included changes to the

three other subsections that are pertinent to our analysis. We set out these amendments:

                 “(c—1) ***

                                                  ***

                         (3) A person who violates subsection (a) a fourth or subsequent time, if the

                 fourth or subsequent violation occurs during a period in which his or her driving

                 privileges are revoked or suspended where the revocation or suspension was for a

                 violation of subsection (a), Section 11—501.1, paragraph (b) of section 11—401, or

                 for reckless homicide as defined in Section 9—3 of the Criminal Code of 1961, is

                 guilty of a Class 2 felony and is not eligible for a sentence of probation or conditional

                 discharge.




a Class X felony. 625 ILCS 5/11—501(c—16) (West Supp. 2005). However, in Maldonado II, we

essentially nullified subsection (c—16) because it conflicted irreconcilably with subsection (c—1)(4)

and, under the “rule of lenity,” the conflict had to be resolved in favor of Public Act 94—116.

Maldonado II, 402 Ill. App. 3d at 1074-75.
       2
           Public Act 94—110, approved July 5, 2005, limited the application of subsection (c—11)

to drivers 21 or older and raised the minimum fine to $25,000. Pub. Act 94—110, §5 (eff. Jan. 1,

2006). Public Acts 94—110 and 94—113, also approved July 5, 2005, inserted the word “a”

between “or” and “similar” in the fourth line of subsection (c—11). Id.; Pub. Act 94—113, §5 (eff.

Jan. 1, 2006).

                                                   -6-
No. 2—09—0449

                    (4) A person who violates subsection (a) a fifth or subsequent time is guilty

            of a Class 1 felony and is not eligible for a sentence of probation or conditional

            discharge.

                                             ***

            (c—11) Any person convicted a fourth or subsequent time for [sic] violating

     subsection (a) or a similar provision, if at the time of the fourth or subsequent violation the

     person was transporting a person under the age of 16, and if the person’s 3 prior violations

     of subsection (a) or a similar provision occurred while transporting a person under the age

     of 16 or while the alcohol concentration in his or her blood, breath, or urine was 0.16 or more

     based on the definition of blood, breath, or urine units in Section 11—501.2, is guilty of a

     Class 2 felony, is not eligible for probation or conditional discharge, and is subject to a

     minimum fine of $3,000.

                                             ***

            (c—15) Any person convicted of a fourth or subsequent violation of subsection (a)

     or a similar provision, if at the time of the fourth or subsequent violation the alcohol

     concentration in his or her blood, breath, or urine was 0.16 or more based on the definition

     of blood, breath, or urine units in Section 11—501.2, and if the person’s 3 prior violations

     of subsection (a) or a similar provision occurred while transporting a person under the age

     of 16 or while the alcohol concentration in his or her blood, breath, or urine was 0.16 or more

     based on the definition of blood, breath, or urine units in Section 11—501.2, is guilty of a

     Class 2 felony and is not eligible for a sentence of probation or conditional discharge and is

     subject to a minimum fine of $2,500.” Pub. Act 94—116, §5 (eff. Jan. 1, 2006).



                                              -7-
No. 2—09—0449

       We note a crucial aspect of the DUI statute as it was amended by Public Act 94—116: the

anomaly on which defendant’s argument rests was not present. The Class 1 felony that subsection

(c—1)(4) created was not a lesser included offense of any Class 2 felony in subsection (c—1)(3),

(c—11), or (c—15) (or elsewhere). Instead, a fifth DUI was a per se Class 1 felony, while, under

the other subsections, a fourth DUI with certain aggravating factors was a Class 2 felony. Defendant

does not contend that this offended due process; he does not dispute that the legislature may subject

any fifth DUI offender to a more severe penalty range (though not necessarily a longer sentence) than

any fourth DUI offender. What defendant does contend, however, is that Public Acts 94—329 and

94—609 violated due process by making a fifth DUI under subsection (c—1)(4) both a Class 1 felony

and a lesser included offense of the Class 2 felonies in subsections (c—1)(3), (c—11), and (c—15).

       Public Act 94—329 was approved July 26, 2005, three weeks after Public Act 94—116 was

approved. Public Act 94—329 did not explicitly amend subsection (c—1)(4) or reproduce it

unchanged. Instead, it completely omitted subsection (c—1)(4). Further, it read:

                       “[(c—1)](3) A person who violates subsection (a) a fourth or subsequent time,

               if the fourth or subsequent violation occurs during a period in which his or her driving

               privileges are revoked or suspended where the revocation or suspension was for a

               violation of subsection (a), Section 11—501.1, paragraph (b) of Section 11—401, or

               for reckless homicide as defined in Section 9—3 of the Criminal Code of 1961, is

               guilty of aggravated driving under the influence of alcohol, other drug or drugs,

               intoxicating compound or compounds, or any combination thereof and is guilty of a

               Class 2 felony, and is not eligible for a sentence of probation or conditional discharge.

                                                ***



                                                 -8-
No. 2—09—0449

               (c—11) Any person convicted a fourth or subsequent time for [sic] violating

       subsection (a) or a similar provision, if at the time of the fourth or subsequent violation the

       person was transporting a person under the age of 16, and the person’s 3 prior violations of

       subsection (a) or a similar provision occurred while transporting a person under the age of

       16 or while the alcohol concentration in his or her blood, breath, or urine was 0.16 or more

       based on the definition of blood, breath, or urine units in Section 11—501.2, is guilty of a

       Class 2 felony, is not eligible for probation or conditional discharge, and is subject to a

       minimum fine of $3,000.

                                               ***

               (c—15) Any person convicted of a fourth or subsequent violation of subsection (a)

       or a similar provision, if at the time of the fourth or subsequent violation the alcohol

       concentration in his or her blood, breath, or urine was 0.16 or more based on the definition

       of blood, breath, or urine units in Section 11—501.2, and if the person’s 3 prior violations

       of subsection (a) or a similar provision occurred while transporting a person under the age

       of 16 or while the alcohol concentration in his or her blood, breath, or urine was 0.16 or more

       based on the definition of blood, breath, or urine units in Section 11—501.2, is guilty of a

       Class 2 felony and is not eligible for a sentence of probation or conditional discharge and is

       subject to a minimum fine of $2,500.” Pub. Act 94—329, §5 (eff. Jan. 1, 2006).

       Public Act 94—609, approved August 16, 2005, carried over the aspects of Public Act

94—329 that are pertinent here. Again, the legislature omitted subsection (c—1)(4) entirely. Again,

it included versions of subsections (c—1)(3), (c—11), and (c—15) that contained no strikeouts or

italics pertinent here yet omitted changes that the legislature had made starting with Public Act



                                                -9-
No. 2—09—0449

94—114. These changes had been embodied in Public Act 94—116, passed less than two months

earlier.

           Under Public Acts 94—329 and 94—609, a simple fifth DUI is indeed a lesser included

offense of several Class 2 felonies. Defendant relies on these two acts to argue that applying

subsection (c—1)(4) to him violated due process. Defendant does not contend that the absence of

subsection (c—1)(4) from these two acts means that subsection (c—1)(4) was repealed. He

concedes that, when he committed his fifth DUI, Public Act 94—116 was still in force. But he

contends that the versions of subsections (c—1)(3), (c—11), and (c—15) in Public Act 94—116

were no longer the law and that the versions of those subsections that the legislature included in

Public Acts 94—329 and 94—609 were in effect when he committed his fifth DUI. We disagree,

because we have rejected similar arguments before, for reasons that we still deem compelling.

           In Prouty, we addressed an apparent conflict between Public Act 94—609 and Public Act

94—116. The defendant had been convicted of aggravated DUI for committing DUI for the third

or subsequent time (see 625 ILCS 5/11—501(d)(2) (West 2006)). Public Act 94—116 had amended

subsections (c—1) and (d)(2) of the DUI statute so as to elevate this offense from either a Class 3

felony or a Class 4 felony (see 625 ILCS 5/11—501(c—1), (d)(2) (West 2004)) to a Class 2 felony.

On appeal, the defendant contended that Public Act 94—116 had been implicitly repealed by Public

Act 94—609, so that his offense had to be reduced to a Class 4 felony. Prouty, 385 Ill. App. 3d at

151. We disagreed, holding that, under section 6 of the Statute on Statutes, the conflict between the

two acts was not irreconcilable and the legislature had not intended that the latter repeal the former.

           In Prouty, the defendant’s argument was similar to the premise of defendant’s constitutional

argument here. He observed that Public Act 94—609 contained the versions of subsections (c—1)

and (d)(2) that had predated the passage of Public Act 94—116. It omitted, but did not strike out,

                                                  -10-
No. 2—09—0449

the language that Public Act 94—116 had added, and it included, without any emphasis, language

that Public Act 94—116 had stricken out. The defendant maintained in essence that, although Public

Act 94—609 did not explicitly repeal Public Act 94—116, its omission of the changes that Public Act

94—116 had made amounted to an implicit repeal.

       We disagreed, holding that, under section 6 of the Statute on Statutes, there was no

“irreconcilable conflict” between the two acts: they did not make inconsistent changes in the DUI

statute as it had “theretofore existed.” 5 ILCS 70/6 (West 2006). We reasoned first that the explicit

changes that the two acts made were not inconsistent, as they addressed wholly separate concerns:

Public Act 94—609 made only a limited change to subsection (d)(2), which had nothing to do with

Public Act 94—116. Prouty, 385 Ill. App. 3d at 154.3 We explained second that the inconsistency

in the acts’ treatment of subsections (c—1) and (d)(2) did not support the defendant’s reading of the

legislature’s intent. We explained:

       “[W]e believe that, had the legislature consciously intended to repeal what it had passed four

       days earlier, it probably would have done so explicitly by striking out the language that Public

       Act 94—116 had added to subsection (d)(2) and by restoring, through italicizing, the

       language that Public Act 94—116 had stricken from subsection (c—1). We note that the two

       acts were passed only four days apart, suggesting that the drafters of Public Act 94—609

       simply overlooked what had just been added by Public Act 94—116. Such an inference is




       3
           This part of Prouty incorrectly referred at one point to subsection (d)(1)(F) (625 ILCS

5/11—501(d)(1)(F) (West 2006)) and not subsection (d)(2). Prouty, 385 Ill. App. 3d at 154. That

was a mistake that we now correct.

                                                -11-
No. 2—09—0449

        more plausible than positing that the legislators had a sudden change of heart but chose to

        express it by passive indirection.” Id.

        We followed Prouty in Maldonado I, in which the defendants were convicted of aggravated

DUI, a Class 4 felony, for committing DUI while lacking valid drivers’ licenses. The offense was

embodied in subsection (d)(1)(G) of the DUI statute (625 ILCS 5/11—501(d)(1)(G) (West 2006)),

which had been added by Public Act 94—329. On appeal, the defendants contended that Public Act

94—329 had been implicitly repealed by Public Act 94—609, which did not include the amendatory

language of Public Act 94—329, and by Public Act 94—963 (Pub. Act 94—963, §5 (eff. June 28,

2006)), which made a similar omission. We disagreed, explaining that the three acts made wholly

separate changes to the DUI statute; that the defendants were mistaken in asserting that Public Act

94—963 omitted the amendatory language at issue; that the legislative history of the two later acts

showed no evidence of an intent to repeal Public Act 94—329; and that Public Act 94—609 did not

strike out the amendatory language of Public Act 94—329, but merely omitted it—thus making an

intent to repeal far less likely than mere careless drafting. Maldonado I, 386 Ill. App. 3d at 975-78.

        The reasoning that governed Prouty and Maldonado I applies here and defeats defendant’s

contention that Public Act 94—116 was implicitly repealed by either Public Act 94—329 or Public

Act 94—609 (or, for that matter, Public Act 94—963). By passing Public Act 94—116, the

legislature set up a coherent and consistent scheme under which any fifth DUI would be a Class 1

felony, while any fourth DUI would be, at most, a Class 2 felony. We cannot agree with defendant

that, when the legislature passed two more acts very shortly afterward, it intended to upset this

straightforward and constitutionally impeccable arrangement with one that made a Class 1 felony a

lesser included offense of several Class 2 felonies. That curious reading of legislative intent, if it can

be supported at all, surely requires more than the mere omission of language, with no strikeouts,

                                                  -12-
No. 2—09—0449

italics, or other indicia of a conscious effort to repeal what had just been enacted. Moreover, even

had we any doubt about the legislature’s intent, we would adhere to the long-standing rules that (1)

we interpret legislation so as to uphold its constitutionality, if reasonably possible (Hill v. Cowan, 202

Ill. 2d 151, 157 (2002)); and (2) we presume that the legislature did not intend absurdity,

inconvenience, or injustice (Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007)).

        The drafters of Public Acts 94—329 and 94—609 were perhaps careless in working from

outdated versions of the DUI statute. But legislative sloppiness is not tantamount to legislative

intent. Defendant’s attempt to elevate drafting mistakes to deliberate and sweeping changes in the

law must be rejected. Therefore, we hold that he was properly convicted of Class 1 felony DUI.

        The judgment of the circuit court of Kendall County is affirmed.

        Affirmed.




                                                  -13-
