Excessive / aggravated speeding
The Illinois Aggravated or Excessive Speeding statute does not allow for Supervision as a sentencing option, and forces a misdemeanor conviction upon a plea or finding of guilty.1 This has been found by the 1st District Circuit Court of Cook County to be unconstitutional under the Disproportionate Penalties clause. The Illinois State Bar Association agrees, and has allowed the Traffic Laws and Courts Section to file an Amicus Brief on behalf of People v. Rizzo,2 the Chicago case that found that not providing Supervision as a sentencing option is unconstitutional.
Entertain the hypothetical of a single mother, Sue,who is driving her five-year-old son Johnny home from some sort of child-type outing involving much food and a bouncy house. They’re cruising along splendidly when suddenly Sue finds herself in the company of a sick kid. A very spontaneously, very sick kid. Unfamiliar substances akin to napalm spew from places on the child she did not know existed. The kid is suffering, she’s suffering, it’s serious. She and her little bodily fluid pinata are three miles from the closest hospital and she goes for it. She guns it. Speed limit is, whatever, 35, 40, mph? She doesn’t know. What is it usually around here? Whatever, she really doesn’t care at that point. The last thing Sue’s doing is observing the posted speed limit so she can mindfully adhere to all traffic ordinances, rather she’s booking to get to the hospital as quickly as possible while avoiding an accident.
Fortunately, it turns out little Johnny just ate too much fried sugar then jumped around like a simian on a bed of air, which produced the possession and flu like symptoms. Unfortunately, Sue got pulled over and ticketed for speeding on her way to the hospital.
Depending on her background, this speeding ticket could cost Sue a year in jail and $2,500. Obvious problems for our hypothetical or any single parent, any parent. Anyone. Sue’s now convicted of a misdemeanor, with great potential for detrimental affects on her driver’s license and insurance. More egregiously, the misdemeanor conviction carries with it a lifetime of possible harms. Say she went for a better job and got rejected because she’s got a criminal background. In addition to ruining her career, a criminal record could prevent Sue from getting a home, it could prove devastating to Johnny’s schooling, eligibility for government aid, and many other federally and privately funded programs. Sue could very easily end up in a situation in which this rash but understandable decision to act on behalf of her child’s welfare resulted in much more damage in the long run because Sue was forced into a mandatory conviction.
It is unpleasant, but easy to imagine a scenario in which you feel you have to drive faster than you normally would, faster than the speed limit allows, but not nearly fast enough to get where you need to go. Responding to an unexpected emergency or delayed to an important event. It could and does happen all the time, in Illinois and everywhere people drive. To great drivers with perfect records, no arrests, no traffic tickets, who have never been in an accident, never even a parking ticket. There are an estimated 5,000 Aggravated Speeding convictions in Illinois to date3 and they happen drivers with mitigating circumstances and no background just as they happen to habitual speeders with a dozen prior violations.
Illinois law mandates that if you plead or are found guilty of Excessive or Aggravated Speeding, driving 26+ mph over the posted speed limit, you are convicted of a misdemeanor.4 You now have a criminal record. With a criminal conviction, the impact on your life could be devastating in terms of employment, immigration, school, housing, public aid, and in countless other professional and social ways. The speeding conviction gets reported to the Secretary of State which, in addition to potentially detrimentally affecting your driving privileges, stays on your driving abstract for seven years.5 And the criminal conviction stays on your record forever unless you go through the hassle and expense to petition to have your record sealed, if eligible.
For some other misdemeanors, Illinois offers another sentencing option called Supervision. Supervision is not a conviction; Upon successful completion of certain specific terms over a specified duration, a case sentenced to Supervision can be dismissed.6 After that, some of these cases can be can be expunged, meaning the record of the arrest and all proceedings is electronically cleared and physically impounded.7
Supervision is not currently a sentencing option for Excessive Speeding. Yet for other arguably more egregious offenses such as Reckless Driving, DUI, and Theft, Supervision is available as a penalty for eligible defendants.8 This means that with the law as it stands now one can have theft, a crime of dishonesty and intent, purged from her record as though it never happened, but she would be burdened with a criminal record for Excessive Speeding. Some would define the denial of supervision as a sentencing option as incongruous, disproportionate to the extent as to be “morally reprehensible,” and in Illinois, that is unconstitutional.9 At least one Illinois judge agrees.
In a recent 1st district lower court decision in People v. Rizzo, the Honorable Deborah Gubin ruled that not providing supervision as a sentencing option for aggravated and excessive speeding is unconstitutional.10
The Illinois mandatory conviction statute violates due process/proportionate penalty protections afforded its people under the Illinois Constitution by forcing a misdemeanor conviction where mitigating circumstances may exist and where arguably more grievous infractions such as DUI and Theft are availed Supervision as a sentencing option.
The law and sentencing statutes pertinent to this article are as follows:
Excessive/Aggravated Speeding, 625 ILCS 5/11-601.5
(a) A person who drives a vehicle upon any highway of this State at a speed that is 26 miles per hour or more but less than 35 miles per hour in excess of the applicable maximum speed limit established under this Chapter or a local ordinance commits a Class B misdemeanor. (b) A person who drives a vehicle upon any highway of this State at a speed that is 35 miles per hour or more in excess of the applicable maximum speed limit established under this Chapter or a local ordinance commits a Class A misdemeanor.11
Mandatory Conviction sentence 730 ILCS 5/5-6-1(P) & (Q)
(p) The provisions of paragraph (c) shall not apply to a defendant charged with violating Section 11-601.5 of the Illinois Vehicle Code or a similar provision of a local ordinance. (q) The provisions of paragraph (c) shall not apply to a defendant charged with violating subsection (b) of Section 11-601 of the Illinois Vehicle Code when the defendant was operating a vehicle, in an urban district, at a speed in excess of 25 miles per hour over the posted speed limit.12
Paragraph (c) Supervision
(c) The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant, if the defendant is not charged with: (i) a Class A misdemeanor, as defined by the following provisions of the Criminal Code of 1961 or the Criminal Code of 2012: Sections 11-9.1; 12-3.2; 11-1.50 or 12-15; 26-5 or 48-1; 31-1; 31-6; 31-7; paragraphs (2) and (3) of subsection (a) of Section 21-1; paragraph (1) through (5), (8), (10), and (11) of subsection (a) of Section 24-1; (ii) a Class A misdemeanor violation of Section 3.01, 3.03-1, or 4.01 of the Humane Care for Animals Act; or (iii) a felony. If the defendant is not barred from receiving an order for supervision as provided in this subsection, the court may enter an order for supervision after considering the circumstances of the offense, and the history, character and condition of the offender, if the court is of the opinion that:(1) the offender is not likely to commit further crimes;2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and 3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.
A misdemeanor conviction means you have a criminal record searchable in the jurisdiction of conviction and anywhere else public records are available. With easy access to sensitive information online, these records can be nearly instantly obtained by employers, potential employers, landlords, school admissions personnel and public and financial aid providers. Put another way: you could be denied freedom, residency, a job, a home, financial aid, and much more just because you drove over the speed limit.
And you can’t do much about it. In Illinois, criminal convictions are not expungable. Some may be sealable, but a sealed record still exists and is accessible via subpoena by certain federal and state agencies.13
The Secretary of State gets reports of all traffic convictions and license suspension and revocation could result from an Excessive Speeding conviction.14 And for professional drivers, the impact can be even more devastating.15 A professional driver if suspended because of a speeding conviction could lose not only his license but his livelihood. An Excessive Speeding conviction can stop you from getting a job, and if you have one, it can take it away.
Right now Illinois Judges’ hands are tied with respect to the mandatory conviction on excessive speeding. Even a Rule 40216 conference with the judge and prosecution leaves the judge with only the charges’ statutory sentence range from which to provide recommendation. Mitigation,17 normally a very big part of a sentencing conference, is moot with respect to Excessive Speeding. No priors and a very good reason for speeding, dire circumstances yet short an affirmative necessity defense, do not matter for sentencing purposes. The person without even so much as a parking ticket is on the same footing as someone else with five petty speeding tickets, a retail theft, and a prior reckless driving charge for which supervision had been granted.
On August 12, 2014, Judge Deborah Gubin gave the opinion in People v. Vincent Rizzo.18
She found that though Excessive Speeding should be a criminal charge, not affording supervision as an option for relief is a disproportionate sentence, therefore a substantive due process violation.19 Attorney Tom Speedie, Council member of the Illinois State Bar Association Section on Traffic Laws and Courts, gives a detailed breakdown of Judge Gubin’s opinion.20
It is unconstitutional to force a misdemeanor conviction on an Excessive Speeding charge. Supervision is a reasonable sentencing option that should be allowed for consideration by the courts.
An important point to emphasize here is that both the Rizzo opinion21 and this article’s leanings are not to discuss whether Excessive Speeding should be charged as a criminal offense, but to argue that as it stands as a criminal infraction, the denial of supervision as a sentencing option is unconstitutional.
The State has filed leave to appeal which has been granted, the State’s Response is due April 30.
The Illinois State Bar Association has approved our request to seek leave to file an Amicus brief with the Illinois Supreme Court in Rizzo. The ISBA General Counsel’s office has permitted the filing of a joint Amicus with the DuPage County Criminal Bar Assn and Illinois Assn of Criminal Defense Lawyers.
Let us revisit Sue, the hypothetical lead footed mommy of spewing Johnny. Say she still booked it to the hospital and got ticketed en route for Excessive Speeding, but this time there were reasonable sentencing laws and she was able to get Supervision as a first time offender. Neither her driving record nor her criminal record were ill affected, she got her dream job, dream house, dream spouse (hey, it’s a hypothetical), and she was able to better provide for Johnny and his demonstrative digestive system. Johnny went on to become the foremost G.I. Specialists in the world, and helping millions of patients and those close to them during the span of his career.
Where mitigating circumstances may exist and where some other misdemeanor offenses such as DUI, Reckless Driving, and Theft allow for Supervision as a sentencing option for first time offenders, the denial of Supervision as a sentencing option for Excessive Speeding is unconstitutional. The change can happen and is in our hands. Support the availability of supervision as sentencing option for Excessive Speeding. ■