                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Herman, 2012 IL App (3d) 110420




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, and THE VILLAGE OF
Caption                    FRANKFORT, Plaintiff-Appellees, v. JESSICA HERMAN, Defendant-
                           Appellant.



District & No.             Third District
                           Docket No. 3-11-0420


Filed                      December 13, 2012
Modified upon
denial of rehearing        January 14, 2013
Held                       Defendant’s conviction for driving under the influence of alcohol was
(Note: This syllabus       reversed where the record showed she was issued citations by a village
constitutes no part of     police officer naming the People of the State of Illinois as plaintiff and
the opinion of the court   alleging violations of the Illinois Vehicle Code, and although the trial
but has been prepared      court granted the village’s motion to replace the State with the village as
by the Reporter of         the prosecuting authority, the citations were not amended to allege only
Decisions for the          violations of the municipal code; therefore, in the absence of written
convenience of the         permission from the State’s Attorney granting the village authority to
reader.)
                           prosecute citations based on the Vehicle Code, the village had no
                           authority to prosecute defendant.


Decision Under             Appeal from the Circuit Court of Will County, No. 10-DT-1195; the Hon.
Review                     Domenica A. Osterberger, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, and
Appeal                     Joshua Sachs, of Evanston, for appellant.

                           Laura L. Malinowski and R. Peter Grometer, both of Mahoney, Silverman
                           & Cross, LLC, of Joliet, for appellee Village of Frankfort.

                           James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel, of State’s
                           Attorneys Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE WRIGHT delivered the judgment of the court,
                           with opinion.
                           Justices Lytton and McDade concurred in the judgment and opinion.




                                              OPINION

¶1          A Village of Frankfort (Village) police officer stopped defendant, Jessica Herman, for
        traffic violations occurring within the Village’s boundaries. The officer issued four citations
        to defendant, each alleging a violation of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(1),
        (a)(2), 11-502(a), 11-709 (West 2010)) and naming the People of the State of Illinois as
        plaintiff. Before trial, the court granted the Village’s motion to amend the citations allowing
        the Village to strike out the State of Illinois as the prosecuting authority and mark the box
        on the face of the citations to replace the State with the Village as the prosecuting authority.
        Neither the State’s Attorney nor the Village attorney amended the citations to allege only
        violations of the municipal code. The court found defendant guilty of driving under the
        influence of alcohol (DUI), a Class A misdemeanor, as charged as a violation of the DUI
        provisions of the Illinois Vehicle Code. 625 ILCS 5/11-501(a)(1), (c)(1) (West 2010).
        Defendant appeals her conviction based on the Village’s lack of prosecutorial authority with
        respect to the Illinois Vehicle Code violation. We reverse.

¶2                                              FACTS
¶3           Following a traffic stop on July 17, 2010, within the Village’s boundaries, defendant
        received traffic citations for improper lane usage (625 ILCS 5/11-709 (West 2010)), illegal
        transportation of alcohol (625 ILCS 5/11-502(a) (West 2010)), and two counts of DUI (625
        ILCS 5/11-501(a)(1), (a)(2) (West 2010)). The citations named the People of the State of
        Illinois as prosecutor and were filed with the circuit clerk without modification by the State.
¶4           On August 24, 2010, the municipal attorney for the Village filed a motion to amend the
        citations to designate the Village, rather than the State, as the prosecuting authority, without

                                                  -2-
       modifying the statutory basis for the violation. The Village attorney, not the State’s Attorney,
       signed the motion to amend.
¶5         The original traffic citations were amended by interlineation on their face by crossing out
       “State of Illinois” and marking “Village of [Frankfort]” as plaintiff. This change was
       purportedly approved by an assistant State’s Attorney who placed her handwritten initials on
       the face of the amended citations near the handwritten changes. However, the citations
       charged defendant with violating the Illinois Vehicle Code without any reference to the
       Village ordinances.
¶6         Following a stipulated bench trial, conducted by the Village attorney, the court found
       defendant guilty of DUI pursuant to section 11-501(a)(1) of the Illinois Vehicle Code. 625
       ILCS 5/11-501(a)(1) (West 2010). Defendant’s three remaining charges were dismissed by
       the Village. The trial court sentenced defendant to 12 months of court supervision and
       ordered her to pay $1,500 in fines, fees, and costs for the DUI. The record reveals the clerk
       calculated the fees and costs to total $666 and calculated the fine to be $834.

¶7                                            ANALYSIS
¶8         On appeal, defendant argues: (1) the Village was without authority to prosecute defendant
       for a violation of section 11-501(a)(1) of the Illinois Vehicle Code; and (2) the trial court
       improperly denied defendant’s motion to quash arrest and suppress evidence. First, we
       address the authority of the Village to prosecute violations of the Illinois Vehicle Code, as
       alleged in the charging instruments in this case.
¶9         Section 16-102 of the Illinois Vehicle Code provides: “The State’s Attorney of the county
       in which [a violation of the Illinois Vehicle Code] occurs shall prosecute all violations except
       when the violation occurs within the corporate limits of a municipality, the municipal
       attorney may prosecute if written permission to do so is obtained from the State’s Attorney.”
       625 ILCS 5/16-102(c) (West 2010). In this case, the traffic citations issued by the Village
       police officer charged defendant with violations of the Illinois Vehicle Code and identified
       the State as the prosecuting authority.
¶ 10       The record on appeal does not contain written permission from the State’s Attorney
       granting the Village attorney the necessary written authority to prosecute the citations based
       on the Illinois Vehicle Code. 625 ILCS 5/16-102(c) (West 2010); People v. Koetzle, 40 Ill.
       App. 3d 577 (1976) (holding that where there is no written permission to prosecute, the
       municipality had no authority to prosecute violations of the Illinois Vehicle Code).
       Moreover, the motion to amend the citations presented to the court was not prepared or
       signed by the State’s Attorney’s office. Instead, the Village attorney requested the court to
       modify the State’s citations in an attempt to transfer prosecutorial authority from the State
       to the Village. However, the Village did not make a corresponding request to amend the
       citations to allege violations of Village ordinances, rather than the Illinois Vehicle Code.
¶ 11       The Village asserts that any lapse in the Village’s prosecutorial authority is harmless and
       concedes on appeal that it would have been “best” for the Village to amend the citations to
       show the prosecution based on this traffic ticket arose out of an ordinance violation rather
       than a violation based entirely on state statute. Under these circumstances, we conclude the

                                                 -3-
       Village did not acquire the authority to prosecute defendant for a designated violation of
       section 11-501(a)(1) of the Illinois Vehicle Code as set forth in the amended citation in Will
       County case No. 10-DT-1195 by simply having an assistant State’s Attorney initial the face
       of the uniform citation. Since this issue is dispositive of the case, it is unnecessary to address
       the parties’ remaining arguments.
¶ 12       Therefore, we reverse defendant’s conviction.

¶ 13                                     CONCLUSION
¶ 14       For the foregoing reasons, the judgment of the circuit court of Will County is reversed.

¶ 15       Reversed.




                                                  -4-
