                             2014 IL App (2d) 130101
                                  No. 2-13-0101
                            Opinion filed May 30, 2014
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 12-CF-1205
                                       )
NICHOLAS C. WEBBER,                    ) Honorable
                                       ) Daniel P. Guerin,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Presiding Justice Burke concurred in the judgment and opinion.
       Justice McLaren dissented, with opinion.

                                           OPINION

¶1     The State appeals from an order of the circuit court of Du Page County dismissing count I

of an indictment against defendant, Nicholas C. Webber, which charged him with felony driving

while his license was revoked (DWLR) (625 ILCS 5/6-303(d-2) (West 2012)). Count I alleged

that “defendant drove or was in actual physical control of a motor vehicle on a highway in Illinois

at a time when his driver’s license, permit, or privilege to operate a motor vehicle was revoked,

where the revocation was based upon defendant’s conviction [of driving under the influence of

alcohol or other drugs (DUI) (625 ILCS 5/11-501(a) (West 2012))], said defendant having been

previously convicted two times of Driving While License Revoked or Driving While License
2014 IL App (2d) 130101


Suspended.” Defendant moved to dismiss on the basis that his license had been revoked in 1996

because of a violation of section 4-102 of the Illinois Vehicle Code (Code) (625 ILCS 5/4-102

(West 1996)), which proscribes, inter alia, damaging, tampering, or removing parts from a motor

vehicle. Although defendant’s driving record indicated that his license was later revoked for

DUI, defendant noted that he had never received a new license after the 1996 revocation. He

argued that, pursuant to People v. Heritsch, 2012 IL App (2d) 090719, the revocation for DUI that

appeared on his driving record was of no effect and therefore could not be the basis for enhancing

DWLR to a felony. The State argues on appeal that Heritsch was decided incorrectly. We agree,

and we therefore reverse the dismissal order and remand for further proceedings.

¶2     As pertinent here, section 6-303(a) of the Code (625 ILCS 5/6-303(a) (West 2012))

provides that “any person who drives or is in actual physical control of a motor vehicle on any

highway of this State at a time when such person’s driver’s license, permit or privilege to do so or

the privilege to obtain a driver’s license or permit is revoked or suspended as provided by this

Code or the law of another state, except as may be specifically allowed by a judicial driving permit

issued prior to January 1, 2009, monitoring device driving permit, family financial responsibility

driving permit, probationary license to drive, or a restricted driving permit issued pursuant to this

Code or under the law of another state, shall be guilty of a Class A misdemeanor.” Pursuant to

section 1-176 of the Code, “revocation” of a driver’s license means “[t]he termination by formal

action of the Secretary of a person’s license or privilege to operate a motor vehicle on the public

highways, which termination shall not be subject to renewal or restoration except that an

application for a new license may be presented and acted upon by the Secretary after the expiration

of at least one year after the date of revocation.” 625 ILCS 5/1-176 (West 2012).




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2014 IL App (2d) 130101


¶3     At the time of the alleged offense in this case, subsections (d-2), (d-3), (d-4), and (d-5) of

section 6-303 provided for escalating penalties based on the number of prior convictions “if the

revocation or suspension was for a violation of Section 11-401 or 11-501 of this Code, or a similar

out-of-state offense, or a similar provision of a local ordinance, or a statutory summary suspension

or revocation under Section 11-501.1 of this Code.” 625 ILCS 5/6-303(d-2), (d-3), (d-4), (d-5)

(West 2012).1 Section 11-401 imposes certain duties on motorists involved in accidents and, as

noted, section 11-501 is the DUI statute. Under section 11-501.1, the so-called “implied consent

law,” a motorist operating a vehicle on a public highway in Illinois is deemed to have consented, if

arrested for DUI, to chemical testing to determine his or her blood alcohol level. Refusal to

undergo testing, or submission to a test that reveals a blood alcohol level of 0.08 or more, results in

the summary suspension of the motorist’s driving privileges. Defendant was charged under

section 6-303(d-2), which provided that a defendant convicted of a third violation of section

6-303(a) was guilty of a Class 4 felony. 625 ILCS 5/6-303(d-2) (West 2012).

¶4     In Heritsch, the defendant’s conviction of DWLR was enhanced to a Class 2 felony under

section 6-303(d-5). The offense occurred in 2008. Heritsch’s license had been revoked in 1991

because he had used a motor vehicle to commit a drug-related felony. Heritsch never obtained a

       1
           At present, each of the prior convictions must also have occurred while the defendant’s

license was suspended or revoked for one of these reasons. See Pub. Act 98-0418, § 5 (eff. Aug.

16, 2013) (amending 625 ILCS 5/6-303(d-2), (d-3), (d-4), (d-5)); Pub. Act 98-0573, § 5 (eff. Aug.

27, 2013) (amending 625 ILCS 5/6-303(d-2), (d-3), (d-4), (d-5)). We note that, under Illinois

law, “[i]f any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such

provision may, by the consent of the party affected, be applied to any judgment pronounced after

the new law takes effect.” 5 ILCS 70/4 (West 2012).



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2014 IL App (2d) 130101


new driver’s license. However, the abstract of Heritsch’s driving record showed that, in 2001, he

had violated section 11-501 of the CodeCi.e., he had committed the offense of DUICand the

Secretary of State revoked his license for that reason. Because the 1991 revocation was not for

one of the reasons that triggered an enhanced sentence under section 6-303(d-5), the validity of

Heritsch’s felony conviction depended on whether he was eligible for an enhanced sentence on the

basis of the 2001 revocation for DUI. The Heritsch majority in essence concluded that, because

his license had been revoked in 1991 and he never applied for a new license, there was no license

that could be revoked when Heritsch committed DUI in 2001. Therefore, according to the

majority, “the Secretary’s 2001 formal administrative sanction of revocation had no effect.”

Heritsch, 2012 IL App (2d) 090719, & 9.

¶5     As noted, the State urges us to depart from the Heritsch majority’s holding.        Defendant,

after summarizing the majority opinion in Heritsch, asserts it was “well-reasoned and supported

by statute and case law.”    The major premise of defendant’s argument, however, is simply that

principles of stare decisis dictate that we adhere to Heritsch’s holding.

¶6     We note that in People v. Smith, 2013 IL App (2d) 121164, which was decided during the

pendency of this appeal, a different panel of this court had occasion to consider the same issue

presented in Heritsch and in this case.    The Smith court concluded that the holding in Heritsch

was incorrect. The Smith court prefaced its analysis with the following observation:

       “[A]lthough the trial court was required to follow Heritsch [citation], we are not bound to

       do so.    Our supreme court has noted:

                ‘ “ ‘[S]tare decisis requires courts to follow the decisions of higher courts, but

                does not bind courts to follow decisions of equal or inferior courts.’ ”   [Citation.]

                Thus, the opinion of one district, division, or panel of the appellate court is not



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2014 IL App (2d) 130101


               binding on other districts, divisions, or panels.   [Citation.]’ ” Id. ¶ 7 (quoting

               O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440

               (2008)).

¶7     In Smith, the defendant was charged with, inter alia, driving while his license was

suspended (DWLS) (625 ILCS 5/6-303(a) (West 2012)). That offense was charged as a Class 2

felony pursuant to section 6-303(d-5). The charging instrument originally alleged that on or

about January 25, 2012, Smith “ ‘operated a motor vehicle upon a road in North Aurora *** at a

time when [his] driver’s license was suspended or revoked for a violation of Illinois Compiled

Statutes Chapter 625, Act 5, Section 11-501 and after having fourteen or more prior violations for

the offense of driving while license was revoked or suspended.’ ” Smith, 2013 IL App (2d)

121164, ¶ 2. The State was subsequently permitted to amend the indictment to allege that Smith

was driving while a statutory summary suspension of his license (see 625 ILCS 5/11-501.1 (West

2012)) was in effect. Smith moved for dismissal of the charge. At the hearing on the motion, he

relied on an abstract of his driving record to establish that the statutory summary suspension was

entered at a time when his driver’s license had already been revoked. Relying on Heritsch, Smith

argued that the statutory summary suspension was a nullity and therefore could not be used to

enhance the DWLS charge to a felony.

¶8     Observing that the question presented was one of statutory interpretation, the Smith court

recited the familiar principle that “[w]hen the language of a statute is clear and unambiguous,

courts may not depart from the language by incorporating exceptions, limitations, or conditions

that the General Assembly did not express.” Smith, 2013 IL App (2d) 121164, ¶ 9. The court

added, however, that “ ‘[a] literal interpretation is not controlling where the spirit and intent of

the General Assembly in enacting a statute are clearly expressed, its objects and purposes are



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2014 IL App (2d) 130101


clearly set forth, and a literal interpretation of a particular clause would defeat the obvious intent

[citation]; where literal enforcement of a statute will result in great injustice that was not

contemplated by the General Assembly [citation]; or where a literal interpretation would lead to

an absurd result [citation].’ ” Id. (quoting Grever v. Board of Trustees of the Illinois Municipal

Retirement Fund, 353 Ill. App. 3d 263, 266-67 (2004)).

¶9     The Smith court acknowledged that “[i]f the statutory definition of ‘revocation’—the

‘termination *** of a person’s license or privilege to operate a motor vehicle’ (emphasis added)

[citation]—is given its most literal meaning, the argument that revocation is a singular

occurrence might appear to be an ontological truism: after one’s license or privilege to operate a

vehicle is terminated, it no longer exists and therefore cannot again be terminated.”       Id. ¶ 11.

However, the court rejected that interpretation:

       “It is reasonably clear from examination of the Code as a whole *** that the General

       Assembly did not intend for the term ‘revocation’ to be read so literally.             To the

       contrary, ‘revocation’ appears to be used, in part, as a term of art that refers to a formal

       act of the Secretary and its attendant legal consequences.     Thus, section 6-205(a) places

       no express limitation on the number of times the Secretary may revoke a driver’s license.

       Nor does section 6-205(a) expressly limit revocation to cases where no prior revocation is

       in effect.” Id.

The court identified provisions of the Code that would be either meaningless or at least partly

superfluous unless the Code contemplated multiple revocations.       Id. ¶ 12.

¶ 10   The Smith court also identified absurd results that would flow from a literal reading of

“revocation” as a singular occurrence that foreclosed the possibility of either a future revocation

or a future suspension:



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2014 IL App (2d) 130101


       “[A] driver whose license is revoked and never reissued would have no incentive to

       comply with the implied consent law.      Such a driver, if arrested for DUI, could, without

       consequence, refuse the chemical testing provided for by the implied consent law and

       could theoretically apply for a new driver’s license during the period when an otherwise

       similarly situated licensed driver would be prohibited from driving.     It is inconceivable

       that the General Assembly intended such an utterly incongruous result.      Moreover, ***

       a DUI conviction in such a case would not preclude the defendant from immediately

       applying for a new license.     Such a result ‘makes a mockery of the law.’ [Citation.]”

       (Emphasis in original.)    Id. ¶ 15.

¶ 11   The dissent contends that this approach “treat[s] the law as if it were ambiguous” but then

fails to apply the rule of lenity, as would be required by such ambiguity.    Infra ¶ 27. This is

simply not the case.     Like the court in Smith (and as agreed by everyone—both parties, the

majority, and the dissent—in Heritsch), we find the statute unambiguous.         Ambiguity exists

where a statute is capable of two or more reasonable interpretations.   Nowak v. City of Country

Club Hills, 2011 IL 111838, ¶ 11.     Moreover, in determining whether the words of a statute are

ambiguous, the statute must be read as a whole.      People ex rel. Madigan v. Kole, 2012 IL App

(2d) 110245, ¶ 31.     Thus, the mere act of reading the various parts of the Code together in no

way implies that the statute is ambiguous.     For the reasons stated in Smith, we find that the

Heritsch majority’s reading of the statute was not reasonable and agree that the statute is not

ambiguous.    Accordingly, the rule of lenity is not applicable here.

¶ 12   The Smith decision is not the only significant development that occurred during the

pendency of this appeal.    In addition, our General Assembly amended section 6-303. See Pub.




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2014 IL App (2d) 130101


Act 98-0418, § 5 (eff. Aug. 16, 2013); Pub. Act 98-0573, § 5 (eff. Aug. 27, 2013).           Among

other things, the General Assembly added subsection (a-10), which provides:

       “A person’s driver’s license, permit, or privilege to obtain a driver’s license or permit

       may be subject to multiple revocations, multiple suspensions, or any combination of both

       simultaneously.    No revocation or suspension shall serve to negate, invalidate, cancel,

       postpone, or in any way lessen the effect of any other revocation or suspension entered

       prior or subsequent to any other revocation or suspension.” Pub. Act 98-0418, § 5 (eff.

       Aug. 16, 2013); Pub. Act 98-0573, § 5 (eff. Aug. 27, 2013).

¶ 13   The defendant in Smith contended that the amendment represented the General

Assembly’s “ ‘tacit acceptance of the [Heritsch] majority’s interpretation of the statute, insofar

as the legislature took efforts to correct what it perceived to be a defect in the statute.’ ” Smith,

2013 IL App (2d) 121164, ¶ 17. The Smith court disagreed:

       “[A]lthough amendatory acts are ordinarily presumed to change the law, ‘that

       presumption is overcome where the nature of [the] amendment suggests that its drafters

       intended to interpret or clarify the original statute.’     [Citation.]   The nature of the

       amendment in this case suggests clarification of the General Assembly’s preexisting

       intent and a repudiation of the interpretation adopted by the Heritsch majority.”

       (Emphasis in original.)    Id.

¶ 14   We agree with the analysis in Smith and therefore decline to follow Heritsch.

Accordingly, we reverse the judgment of the circuit court of Du Page County and remand for

further proceedings.

¶ 15   Reversed and remanded.

¶ 16   JUSTICE McLAREN, dissenting.



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2014 IL App (2d) 130101


¶ 17   The majority does not believe that the legislature means what it says, even when the

legislature defines what it says.   Because the majority goes out of its way to make sure that the

legislature means what the majority says, I must dissent.

¶ 18   Quoting Smith,2 the majority maintains that “ ‘ “revocation” ’ ” is a “ ‘term of art that

refers to a formal act of the Secretary and its attendant legal consequences.’ ”        Supra ¶ 9

(quoting Smith, 2013 IL App (2d) 121164, ¶ 9).        However, neither Smith nor the majority here

enlightens us with any rationale as to why this should be so.      A term of art has “a specific,

precise meaning in a given specialty, apart from its general meaning in ordinary contexts.”

(Emphasis added.)      Black’s Law Dictionary 1483 (7th ed. 1999).         As this court noted in

Heritsch, the Code defines “revocation of driver’s license” as “[t]he termination by formal action

of the Secretary of a person’s license or privilege to operate a motor vehicle on the public

highways, which termination shall not be subject to renewal or restoration except that an

application for a new license may be presented and acted upon by the Secretary after the

expiration of at least one year after the date of revocation.” 625 ILCS 5/1-176 (West 2012); see

Heritsch, 2012 IL App (2d) 090719, ¶ 8.       Webster’s defines “revocation” in part as “the act by

which one having the right annuls something previously done, a power or authority given, or a

license, gift, or benefit conferred.”   Webster’s Third New International Dictionary 1944 (1993).

Black’s defines “revocation” as “[a]n annulment, cancellation, or reversal, usu. of an act or

power.” Black’s Law Dictionary 1321 (7th ed. 1999). All of these definitions involve the

same concepts: termination, annulment, cancellation.          There is nothing in the statutory

definition that gives “revocation of driver’s license” any specific, precise meaning apart from its

       2
           Indeed, the majority does little more than quote from Smith and note its agreement with

Smith’s analysis.



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2014 IL App (2d) 130101


general meaning in ordinary contexts.         By definition, the statutory definition of “revocation,”

which is in accord with its common dictionary definition, is not a term of art.

¶ 19       The fundamental rule of statutory construction is to give effect to the legislature’s intent,

the best indication of which is the statutory language, given its plain and ordinary meaning.

People v. Davison, 233 Ill. 2d 30, 40 (2009).       To give such meaning to words means to construe

them with reference to the average, ordinary, normal, reasonable person. Outboard Marine Corp.

v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 115 (1992). In my opinion, both Smith and the

majority here fail to relate to the plain and ordinary meaning of the word “revocation” because

they perceive and define it based upon the understanding of licensed attorneys and jurists. They

have law licenses; a reasonable person does not. It is an oxymoron to claim that the plain and

ordinary meaning of a word is a term of art.           The majority, in stating that the word that it is

defining is a “term of art,” illustrates the oxymoron: it is applying to a plainly and ordinarily

defined term an unorthodox meaning that a reasonable person not familiar with the unordinary

meaning would not understand. For example, “the term ‘joint custody’ is really an oxymoron that

somehow has obtained legislative approval.” In re Marriage of Wycoff, 266 Ill. App. 3d 408, 419

(1994) (Steigman, J., dissenting). So, too, has “revocation” obtained judicial approval by certain

jurists.

¶ 20       I also find curious the majority’s assertion that, “[f]or the reasons stated in Smith, we find

that the Heritsch majority’s reading of the statute was not reasonable and agree that the statute is

not ambiguous.”         Supra ¶ 11.     First, nowhere in Smith was the Heritsch court’s reading

described as “not reasonable” or “unreasonable.” Second, the majority does not explain how

applying a word as it is defined by statute and in accord with the plain and ordinary meanings

provided in common-usage dictionaries can be unreasonable. Revocations are authorized in other



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2014 IL App (2d) 130101


sections of the Illinois Compiled Statutes. Under circumstances enumerated in section 8 of the

Firearm Owner’s Identification Card Act (430 ILCS 65/8 (West 2012), the Department of State

Police has the authority to “revoke and seize a Firearm Owner’s Identification Card previously

issued”; is such a revocation also a mere “formal act” on the part of the Department of State

Police?     If a person’s card is revoked for a felony conviction, may it subsequently be revoked

because the person becomes addicted to narcotics, even though the person has never even sought

to obtain another card?      See 430 ILCS 65/8(c), (d) (West 2012).      Is the revocation of a card

nothing more than an “ontological truism” or does it have a concrete meaning and real

consequences?

¶ 21      The majority mentions in passing Smith’s claim that certain provisions of the Code would

be “either meaningless or at least partly superfluous unless the Code contemplated multiple

revocations.” Supra ¶ 9.       Smith contended:

          “[S]ection 6-208(b)(1.5) of the Code formerly provided, ‘If the person is convicted of a

          violation of Section 6-303 of this Code committed while his or her driver’s license,

          permit, or privilege was revoked because of a violation of Section 9-3 of the Criminal

          Code of 1961, relating to the offense of reckless homicide, or a similar provision of a law

          of another state, the person may not make application for a license or permit until the

          expiration of 3 years from the effective date of the most recent revocation.’ (Emphasis

          added.) 625 ILCS 5/6-208(b)(1.5) (West 2008). The words ‘most recent’ would have

          been superfluous if the revocation of a driver’s license were a singular occurrence.”

          Smith, 2013 IL App (2d) 121164, ¶ 12.


“[F]ormerly provided”?       Section 208(b)(1.5) was amended, effective January 1, 2008, removing

the phrase “effective date of the most recent revocation” and replacing it with the phrase “date of


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2014 IL App (2d) 130101


the conviction.” Pub. Act 95-377, § 5 (eff. Jan. 1, 2008) (amending 625 ILCS 5/6-208(b)(1.5)

(West 2006)).

¶ 22     It is very interesting that a panel of this court would use an out-of-date statutory provision

to support its current interpretation of a statute. It is puzzling that the panel would use an

out-of-date statutory provision that had been amended to specifically delete the very words upon

which the panel relied in its analysis to support its position and affirm a criminal conviction. No

words of section 6-208(b)(1.5) as it existed when the defendant in Smith was charged and when the

opinion was written would have been rendered “superfluous” by the Heritsch analysis. Smith’s

casual toss-in of “formerly provided” is negligent, at best.

¶ 23     Smith also argued that section 6-205(c)(2) of the Code (625 ILCS 6-205(c)(2) (West

2012)), involving ignition interlock devices and restricted driving permits for individuals “revoked

*** due to 2 or more convictions,” would be “meaningless” if Heritsch prevailed. Smith, 2013 IL

App (2d) 121164, ¶ 12.      Sauce for the goose being sauce for the gander, I assert that nothing in

section 6-205 of the Code as it formerly provided would be offended or rendered meaningless by

Heritsch. See 625 ILCS 6-205 (West 2000). In fact, section 6-205(h) provided for ignition

interlock devices when granting “driving relief” to “individuals who have been arrested [not

revoked] for a second or subsequent offense.” (Emphasis added.) 625 ILCS 6-205(h) (West

2000).

¶ 24     The claims that absurd results must ensue from the application of the Heritsch definition

(see Smith, 2013 IL App (2d) 121164, ¶ 13; Heritsch, 2012 IL App (2d) 090719, ¶ 30 (Birkett, J.,

dissenting)) suggest that a defendant whose license was revoked because of a DUI would be

inclined to apply for a license with impunity.3           Such an enthymeme is valid only if it is

         3
             The State’s additional claim here that the charge will always remain a misdemeanor



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completed with the additional premise that any application would be granted by the Secretary of

State. Curiously, Smith implicitly assumes, contrary to law, that such an application would be

successful.   The Secretary is not required to issue a license to everyone who applies; the

Secretary shall issue a license “to every qualifying applicant.”     (Emphasis added.)     625 ILCS

5/6-110(a) (West 2012).      Section 6-103 of the Code (625 ILCS 5/6-103 (West 2012)) even

provides a lengthy list of persons who “shall not” be licensed.            Most importantly to the

discussion here, the Secretary is not to issue a license to a person whose license to drive has been

revoked:

        “unless and until such person has had a hearing pursuant to this Code and the appropriate

        administrative rules and the Secretary is satisfied, after a review or investigation of such

        person, that to grant the privilege of driving a motor vehicle on the highways will not

        endanger the public safety or welfare.” 625 ILCS 5/6-208(b)(5) (West 2012).

I submit that we would not see our roads clogged with hordes of dangerous and/or ineligible

licensed drivers even if such persons were not statutorily dissuaded from applying to the

Secretary.    Even more absurd is the fact that the legislature has not imposed a penalty for filing

a premature application for a new license, short of the applicant perjuring himself by making a

false application or affidavit.    See 625 ILCS 5/6-302 (West 2012).     In any event, application of

the Heritsch definition would not create the havoc claimed by Smith, because the Secretary is not

likely to rubber-stamp these alleged myriad applications.         Neither the Smith court nor the

majority here has perfected a proof that establishes that the clear language of the statute results in

absurdity.    See People v. Moreland, 2011 IL App (2d) 100699, ¶ 12 (State’s contention that


under Heritsch fails.     If a subsequent conviction is for the same charge as the original

revocation, then it is a felony.



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failure to reverse trial court would “encourage defendants to manipulate the process for

rescission hearings” was “true only if trial courts allow it”).

¶ 25   Additionally, Smith’s claim that a literal reading of revocation would lead to absurd results

as applied to the implied consent law is a non sequitur. See supra ¶ 10 (quoting Smith, 2013 IL

App (2d) 121164, ¶ 15).      Whether a driver’s license is revoked once or a dozen times, such a

driver has the same incentive to comply (or not comply) with the implied consent law.             Also,

the claims regarding such a driver’s theoretic and immediate applications for a new license again

run into the actual reality that the Secretary of State does not have to grant such an application.

The fears of Smith and the majority here are hyperbolic.

¶ 26   I believe that Heritsch was correctly decided and controls the outcome of this case.            I

say this based not upon the ratio decidendi of the Heritsch majority.         I say this because Smith,

upon which the majority here relies, incorrectly criticized Heritsch.       The State in Smith claimed

that the dissent in Heritsch was the correct position and that the holding in Heritsch should be

abrogated.4 However, the State failed to recognize that, in Heritsch, both it and the defendant

agreed that the statute was clear and unambiguous on its face. See Heritsch, 2012 IL App (2d)

090719, ¶ 8.     The State did not argue the alternative—that the statute was ambiguous and

needed outside sources for interpretation.5

       4
           The Smith majority rightly recognized that it lacked the power to grant the State’s

request. See Smith, 2013 IL App (2d) 121164, ¶ 7.
       5
           However, the defendant in Heritsch did argue in the alternative and claimed that the

rule of lenity would apply if the statute were ambiguous:         “Alternatively, defendant argues that,

if the term ‘the revocation’ as used in section 6-303(d-5) of the Code is ambiguous, the rule of

lenity mandates a finding that the enhanced sentencing provision does not apply to him and that his



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¶ 27   The majority in Heritsch decided the merits of the case based upon the parties’ agreement

that the statute was clear and unambiguous.      Curiously, while the dissent in Heritsch noted the

State’s agreement with the defendant (see Heritsch, 2012 IL App (2d) 090719, ¶ 20 (Birkett, J.,

dissenting)), it concluded that the contrary result was required; in doing so, it disregarded the

parties’ agreement, treated the law as if it were ambiguous (despite the statutory definition and

the plain and ordinary meaning of the term “revocation”), and proceeded in that manner to

conclude differently from the majority.     However, the dissent failed to consider, in light of its

disagreement with the majority’s analysis and conclusion, whether the law was ambiguous such

that the rule of lenity should apply.   See People v. Carter, 213 Ill. 2d 295, 302 (2004) (“Where a

criminal statute is capable of two or more constructions, courts must adopt the construction that

operates in favor of the accused.”). Had the dissent considered the rule of lenity in its analysis, I

submit that it should have come to the same result as the majority, as lenity should have been

applied.

¶ 28   In Smith, Justice Birkett, who also authored the dissent in Heritsch, made no attempt to

distinguish Heritsch even though, in Smith, the parties neither mentioned nor discussed the

possible ambiguity of the penal statute and the proper application of the rule of lenity. The

State argued that Heritsch should be abrogated, without either acknowledging its prior position

that the statute was unambiguous or considering that the rule of lenity would apply based upon

its claim that outside sources would be needed to establish the reasonableness of the Heritsch

dissent’s conclusion.    Stare decisis means that precedent should normally be followed; “a

question once deliberately examined and decided should be closed to further argument, ensuring


conviction should be modified to misdemeanor DWLR and that he should be sentenced

accordingly.” Heritsch, 2012 IL App (2d) 090719, ¶ 19 (Birkett, J., dissenting).



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that the law will develop in a ‘principled, intelligent fashion,’ immune from erratic changes.”6

People v. Clemons, 2012 IL 107821, ¶ 9 (quoting People v. Colon, 225 Ill. 2d 125, 146 (2007)).

However, if a prior decision is distinguishable, it is not precedent, and stare decisis is not

implicated. People v. Trimarco, 364 Ill. App. 3d 549, 556 (2006) (McLaren, J., dissenting).

Thus, the arguments raised by the parties in Smith (and here) are inappropriate.         Rather, what

should have been addressed, if Smith and the majority here have decided that the arguments in

Heritsch were either abandoned or procedurally defaulted, was, at minimum, the applicability of

the rule of lenity to the ambiguity of a penal statute.   As the majority acknowledges, defendant

claims that the interpretation in Heritsch was reasonable. Assuming, arguendo, that defendant

would concede that the majority’s analysis here is reasonable, there would be more than one

reasonable interpretation that can be given to a penal statute, and lenity would apply.      Thus, the

majority is only partially correct in claiming that the parties agree that lenity in not an issue,

especially since defendant did not know of the Smith decision when he filed his reply brief.

¶ 29   In his dissent in Heritsch, Justice Birkett propagated the State’s truncated analysis, and he

repeated it in Smith, where the court determined that the clear language of section 6-303(d-5) of

the Code would create absurd results.     Therefore, Smith interpreted the law so as to suggest that

the “ontological truism” of the statutory language should not be followed.       Smith, 2013 IL App

(2d) 121164, ¶ 11. The cardinal rule of statutory construction is to ascertain and give effect to

the legislature’s intent; the best indication of that intent is the language used in the statute, which

must be given its plain and ordinary meaning. People v. McClure, 218 Ill. 2d 375, 381-82 (2006).

       6
           While Smith and the majority here point out that stare decisis does not make the opinion

of one panel of an appellate court binding on another panel (supra ¶ 6), they fail to note our

supreme court’s preference for principled, intelligent development of the law.



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“When the statutory language is unambiguous, courts must construe the statute as written, without

resorting to other aids of construction.” Moreland, 2011 IL App (2d) 100699, ¶ 7 (citing People

v. Bywater, 223 Ill.2d 477, 481 (2006)). And that is what was done by the majority in Heritsch

and not done by the dissent in Heritsch. Unfortunately, neither Smith nor the majority here

seems to recognize that simple distinguishing fact, or that, even if the statute were ambiguous,

the ambiguity should have resulted in lenity.    The dissent in Heritsch and the analysis in Smith

do little more than suggest that, because other statutes are more precisely written, the courts are

to adopt the most punitive interpretation. That is a perversion of both the rule of lenity and the

application of the plain and ordinary language contained in a statute, with a bias in favor of the

State.

¶ 30     In Heritsch, we noted that the legislature could have used “inclusive language” such as

“ ‘any revocation’ ” instead of “ ‘the revocation’ ” in drafting section 6-303(d-5) “but it

apparently declined to do so.”     Heritsch, 2012 IL App (2d) 090719, ¶¶ 10, 11. To the extent

that the plain meaning of the statute created “unsatisfactory or anomalous” results, “it is up to the

legislature to correct that problem.” Id.     The legislature has now done so, amending section

6-303 to add subsection (a-10), which provides:

                “A person’s driver’s license, permit, or privilege to obtain a driver’s license or

         permit may be subject to multiple revocations, multiple suspensions, or any combination

         of both simultaneously.   No revocation or suspension shall serve to negate, invalidate,

         cancel, postpone, or in any way lessen the effect of any other revocation or suspension

         entered prior or subsequent to any other revocation or suspension.” Pub. Act 98-0418,

         § 5 (eff. Aug. 16, 2013); Pub. Act 98-0573, § 5 (eff. Aug. 27, 2013).




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¶ 31    Thus, the legislature has now determined that a driver’s license may be revoked or

suspended even when it does not exist because it was already revoked. It has clearly shown that it

wishes to adopt the term of art that the majority is prematurely applying here on the basis that the

legislature was merely attempting to clarify its “preexisting intent” and repudiate the Heritsch

interpretation. Smith, 2013 IL App (2d) 121164, ¶ 17. If the legislature originally intended

something other than the plain and ordinary language that a reasonable person without a law

license would understand, it could have enacted this definition of “revocation” instead of the

definition that it did enact originally.

¶ 32    I submit that the majority is either unwilling or unable to see the forest for the trees. It has

used multiple faulty rationales to conclude that the plain and ordinary meaning of “revocation” is a

term of art. According to the majority, the interpretation in Heritsch is unreasonable. I submit

that the interpretation in Heritsch is the plain and ordinary meaning, based upon what a reasonable

person without extensive experience of the “practical oxymoron” would understand.                  The

majority is not only applying what licensed attorneys and present jurists deem to be “plain and

ordinary”; it is either unwilling or unable to accept that the amendment, which the majority claims

does not depart from prior law, is a clarification only if one disregards the original statutory

definition of “revocation” and disregards the ontological truism that a revocation is a singular

termination. The fact that the legislature decided to alter the statutory definition of “revocation”

from its original definition of a single act to a definition of multiple acts does not undermine the

reasonableness of the holding in Heritsch; it confirms it.

¶ 33    As the supreme court pointed out in People v. Petrenko, 237 Ill. 2d 490, 510 (2010), the

legislature may pass legislation that flies in the face of ontological truisms and natural science if

it clearly intends to enact legislation that does not comport with common sense and the everyday



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experiences in life.     It is not unconstitutional for the legislature to reshape concepts or redefine

words even though such an undertaking is impractical or illogical.            In Petrenko, the court

overruled a portion of its decision in People v. Palmer, 218 Ill. 2d 148 (2006), and concluded

that it was not impermissible, under either statutory or natural law, to sentence a defendant to

serve a 10-year term in prison consecutive to a term of natural life; as the legislature had

authorized such sentencing in the Unified Code of Corrections, courts are to enforce the statute

“without regard to the practical impossibility of serving the sentences it yields.” Petrenko, 237

Ill. 2d at 506-07.     The legislature may, in its wisdom, legislate the absurd or the unnatural; if it

does so in unambiguous language that, given its plain and ordinary meaning, demonstrates the

legislature’s intent, we must give effect to that intent.     As of August 2013, such a legislative

intent has been expressed, but it is applicable only to offenses committed after the effective date

of the statutory amendment!

¶ 34   Defendant was charged before the unambiguous language in the amendment demonstrated

the existence of such an unnatural legislative intent. The amendment shows that the legislature

knows how to specifically authorize multiple, concurrent revocations and suspensions of a

person’s driving privileges.       In the absence of such an authorization before August 2013,

defendant should be entitled to the protection of the logical interpretation of the clear expression of

a natural legislative intent that existed when he was charged. See Carter, 213 Ill. 2d at 303-04.

Thus, the trial court’s judgment should be affirmed.




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