Opinion
4-21-0687
06-09-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL ARNDT, Defendant-Appellee.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Champaign County No. 21CF894 Honorable Ronda D. Holliman, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Holder White concurred in the judgment.
ORDER
TURNER JUSTICE.
¶ 1 Held: Dismissal of the appeal for lack of jurisdiction is warranted because the circuit court's order dismissing the charge for a lack of probable cause at the preliminary hearing was not a final, appealable order.
¶ 2 In July 2021, the State charged defendant, Michael Arndt, by information with one count of aggravated driving under the influence of alcohol (DUI) under section 11-501(d)(1)(H) of the Illinois Vehicle Code (625 ILCS 5/11-501 (d)(1)(H) (West 2020)). At the preliminary hearing, defendant asserted the State failed to show probable cause he committed aggravated DUI under section 11-501(d)(1)(H) because he did possess a driver's license. Defendant argued his driver's license was just suspended due to a lapse in insurance coverage, which was not one of the reasons for a suspension set forth in section 11-501(d)(1)(G) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(1)(G) (West 2020)). After the parties briefed the issue, the Champaign County circuit court agreed with defendant and found no probable cause. The State then filed a notice of appeal from the dismissal. On appeal, the State contends the legislature did intend for individuals who commit DUI without possessing a valid driver's license to be guilty of aggravated DUI under section 11-501(d) (1) (H). We dismiss the appeal.
¶ 3 I. BACKGROUND
¶ 4 On July 30, 2021, the State charged defendant by information with one count of aggravated DUI, which asserted defendant drove or was in actual physical possession of a motor vehicle at a time when defendant was under the influence of alcohol and did not possess a driver's license. See 625 ILCS 5/11-501(a) (2), (d)(1)(H) (West 2020).
¶ 5 On October 13, 2021, the circuit court commenced the preliminary hearing. At the hearing, the State presented the testimony of Tolono police officer Adrian Gauna. Officer Gauna testified, at around 11 p.m. on June 17, 2021, he observed a pickup truck exit the Casey's parking lot with its headlights off and then followed the truck. He later saw the truck slow down and pull completely onto the shoulder of the road. At that time, Officer Gauna activated the emergency lights on his squad car to initiate a traffic stop. The truck proceeded to a trailer park and went through the trailer park at a high rate of speed, eventually coming to a stop. Officer Gauna still had on his emergency lights and positioned his squad car behind the truck. Contrary to Officer Gauna's instructions, the driver exited the truck. Officer Gauna identified defendant as the driver of the truck. Officer Gauna asked defendant if he had been drinking, and defendant replied he had two beers and two shots around 2 p.m. that day. Officer Gauna could smell an odor of alcohol coming from defendant. He had defendant do three different field sobriety tests. Officer Gauna observed cues of impairment with each test. In Officer Gauna's opinion, defendant was driving under the influence of alcohol while on a public roadway. The State also presented just the last page of defendant's driving abstract, which showed a suspension was in effect on June 17, 2021, but not the reason for the suspension.
¶ 6 Defendant argued the State's evidence showed defendant's driver's license was issued on January 5, 2019, and had an expiration date of November 28, 2022. While the State presented evidence of a suspension of the license, it failed to introduce any evidence the suspension was based on any of the factors listed in section 11-501(d) (1) (G). According to defendant, a finding of probable cause under section 11-501(d) (1) (H) on the facts of this case would make section 11-501(d) (1) (G) have no effect. The court ordered the parties to brief the statutory construction issue. The parties filed briefs. Attached to the State's brief was the entire driving abstract for defendant, which showed defendant had a "mandatory insurance conviction suspension" in 2021. The court resumed the hearing on November 1, 2021. After hearing the parties' arguments, the court agreed with defendant's statutory construction arguments and found the State did not prove probable cause.
¶ 7 The State did not attempt to refile or amend the charges in this case but, instead, filed a timely notice of appeal on November 19, 2021.
¶ 8 II. ANALYSIS
¶ 9 Defendant asserts this court lacks jurisdiction of the State's appeal because an order dismissing an information for lack of probable cause is not appealable. The State contends this court does have jurisdiction under Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017). Since our supreme court has instructed reviewing courts to be certain of their jurisdiction prior to addressing an appeal (see People v. Smith, 228 Ill.2d 95, 106, 885 N.E.2d 1053, 1059 (2008)), we begin by addressing defendant's argument.
¶ 10 Rule 604(a) (1) addresses when the State may appeal and provides the following:
"In criminal cases the State may appeal only from an order or judgment the
substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence." Ill. S.Ct. R. 604(a)(1) (eff. July 1, 2017).
Section 114-1 (a) lists 11 grounds upon which defendant can file a written motion to dismiss the charging instrument and none of them are for lack of probable cause. See 725 ILCS 5/114-1 (a) (West 2020) (text of section effective until Jan. 1, 2023). However, our supreme court has held the grounds enumerated in section 114-1 are not exclusive and" [t]he State retains the right to appeal in any case of a judgment the substantive effect of which results in dismissal of a charge." People v. DeJesus, 127 Ill.2d 486, 495, 537 N.E.2d 800, 804 (1989). It further noted "Rule 604(a) (1) was not intended to extinguish the State's right to appeal from a judgment the substantive effect of which was to dismiss charges on grounds not specified in the rule." DeJesus, 127 Ill.2d at 495, 537 N.E.2d at 804.
¶ 11 While the grounds in section 114-1 are not exclusive, the supreme court, in People v. Kent, 54 Ill.2d 161, 164, 295 N.E.2d 710, 712 (1972), found no Illinois authority existed holding an order releasing an accused for lack of probable cause was appealable or in any way conclusive upon the State. The Kent court recognized, if the State proceeds first by information and the trial court concludes no probable cause after the preliminary hearing, the State can subsequently proceed with a grand jury indictment for the same offense. Kent, 54 Ill.2d at 163-64, 295 N.E.2d at 711-12. After a finding of no probable cause, the State can also proceed by filing an information and then, before the preliminary hearing, obtain a grand jury indictment, which avoids the necessity of the preliminary hearing. People v. Mennenga, 195 Ill.App.3d 204, 210, 551 N.E.2d 1386, 1390-91 (1990). A third option is the State can file a second information for the same offense and proceed with a second preliminary hearing because" [a] finding of no probable cause at a preliminary hearing does not, in itself, bar proceeding on a new information charging the same offense and with a new preliminary hearing." Mennenga, 195 Ill.App.3d at 210, 551 N.E.2d at 1390-91.
¶ 12 This court has explained the State may still proceed on an identical charge after a dismissal for no probable cause because, with such a dismissal, the defendant has not been convicted or acquitted and cannot be placed in double jeopardy. Mennenga, 195 Ill.App.3d at 210, 551 N.E.2d at 1390. We further noted, in the absence of double jeopardy or a violation of the speedy-trial provisions, public policy justifies the State being able to proceed if additional evidence of the offense is obtained. Mennenga, 195 Ill.App.3d at 210, 551 N.E.2d at 1390. Additionally, if an order dismissing the charges for lack of probable cause was appealable, then the State could never seek an indictment after a finding of no probable cause without taking an appeal. People v. Zook, 177 Ill.App.3d 62, 65, 531 N.E.2d 1066, 1068 (1988). In Zook, 177 Ill.App.3d at 62, 531 N.E.2d at 1067, this court found an order dismissing an information after a preliminary hearing for lack of probable cause was not appealable. In Mennenga, 195 Ill.App.3d at 210-11, 551 N.E.2d at 1390-91, this court found the State could proceed on an information after the grand jury made a no-true bill finding on the very same evidence.
¶ 13 The cases cited by the State are distinguishable from the facts before us. In People v. Marty, 241 Ill.App.3d 266, 268, 608 N.E.2d 1326, 1328 (1993), the trial court had granted a mistrial and dismissed the charges with prejudice. Thus, the State did not have the ability to refile the charges in that case. In People v. Luallen, 188 Ill.App.3d 862, 862, 544 N.E.2d 1206, 1207 (1989), the trial court had also issued a mistrial and dismissed the charges, but it later reinstated the criminal charge based on a recently filed United States Supreme Court decision. The defendant appealed the court's reinstatement of the charge, and the reviewing court rejected the defendant's argument the State's prosecution of the charge was barred by the double jeopardy clause. Luallen, 188 Ill.App.3d at 862-63, 544 N.E.2d at 1207. Thus, Luallen also did not address the State's ability to appeal from a finding of no probable cause.
¶ 14 Since the State can refile the charge or seek a grand jury indictment in this case, we agree with defendant the court's dismissal was not a final and appealable judgment. We note the State does not attempt to distinguish Kent, Mennenga, or Zook or argue any refiling of the charge would be futile. Thus, we find the dismissal order was not a final, appealable order.
¶ 15 III. CONCLUSION
¶ 16 For the reasons stated, we dismiss the State's appeal.
¶ 17 Appeal dismissed.