good morning your honor is in may it please the court my name is jane notes i'm with the illinois attorney general's office and i'm here on behalf of the intervenor appellant illinois secretary of state jesse white at issue in these consolidated cases is the constitutionality of an illinois law authorizing the secretary of state to temporarily suspend the driver's license of any person who engages in underage alcohol consumption with a restricted driving perm available if the offender can show undue hardship at least thirty six states have laws like this one and these laws have consistently been up held against constitutional challenges other circuit court below nevertheless held that illinois law violates due process as applied to these defendants because there was no evidence that they intended to drive as well as to illegally drink alcohol on the evening in question are the defendants defend the circuit court's decision on this ground and they also urge from an alternate ground that license suspension under these circumstances even though it is not a criminal punishment violates the proportionate penalties clause of the illinois constitution i this morning i will address both of these arguments in turn our first on the due process claim there is no question that there is no fundamental right to a driver's license the parties agree on this point and they also agree that the a political standard against which to judge the secretary's statutory suspension authority is the rational basis test and license suspension under the circumstances presented here readily satisfies this test because it would be rational for the general assembly to conclude that young people who break the law by drinking alcohol are likely to engage in other types of risky or illegal behavior including drinking and thing and in addition that young people who drink and drive are likely to be unsafe drivers authority to revoke based on the commission of a sex offense and the state did not even argue there that a sex offender is more likely to be an unsafe driver than any other type of offender and andrew and rightly so but underage drinkers are quite different given the fact that many young people die or are injured each year in alcohol related car accidents and the fact that young people are likely to be less mature less likely to drink alcohol responsibly it would be very reasonable to conclude that an underage drinker unlike a sex offender is more likely to be an unsafe driver and thus would present a hazard to the that this statute is rational related to two different legitimate government purposes one is the purpose i have been discussing and that is keeping the roadways safe of unsafe drivers and the other purpose is deterring people young people including in under age consumption of alcohol and the reason that this statute is likely to be a powerful deterrent against underage drinking is the fact that the penalties for underage drinking tend to be relatively minor at least on a first offense most offenders will receive a small fine and a short term of court supervision like these defendants did here and so given that the relatively minor criminal penalties and the fact that young people tend to highly value having the ability to drive it would be very reasonable for the general assembly to conclude that this law is a rational means of deterring under age drinking  above and beyond the general assembly's legitimate interest in deterring underage drinking and driving and therefore keeping the highways safe so we have to rational basis arguments and this court could reverse the circuit court relying on roadway safe we were to deterring sex offenses and we agree that this we believe this case is different for the reasons i've articulated to the extent the language of men are seems to be broader our position is as in our brief that that's actually dicta and it ends over dictum because in that case the state did not even argue that the statute was rationally related to keeping the roadway safe so the court was not asked to squarely address that um and then in addition to the due process claim the defendants are also articulating a proportionate penalties class claim and license suspension under these circumstances does not violate the proportionate penalties clause for two independent reasons first decades of illinois cases including cases from this court hold that the secretary's authority to suspend or revoke a driver's license is an administrative function and not a criminal penalty as a result license suspension does not even implicate the proportionate penalties clause which requires a direct action by the state to inflict punishment even if that prize did apply here the defendants cannot satisfy either of the two tests that this court recognized in people versus shot for a proportionate penalties caused by a lation i first they have not pointed to two identical offenses that have different penalties and thus they cannot satisfy the identical elements tast and second they have no colorful argument that is that it is cruel and degrading which is the standard that they have to meet under the alternate  proportionate penalties clause tast they have no colorable argument that is cruel and degrading to order a limited license suspension only three months with a restricted driving permit available upon a showing of undue hardship following what even they would concede is a serious offense that is the offense of underage consumption of alcohol if the court has no further questions at this time for these reasons and the reasons stated in our briefs we respectfully request that the judgment of the circuit court be reversed and that the constitutionality of the secretary statutory authority to temporarily suspend the driver's license of any person who engages in underage drinking be confirmed good morning may it please the court my name is fry entrapment i'm here on behalf of chelsea mash off zachary back when i represent as well while his parents were able to attend he's got to college to attend to today and if it please the  court to respond first of all to some things that were brought out in oral argument by the secretary of state's attorney in the initial part when they were talking about due process they referred to this is being a quote relatively minor  have recognized that's a very serious offense and it's got a very serious some harsh penalties it's a step below a felony and i think it's proper to characterize it as a very serious offense and not to say well it's something that if kids do they go out and they get a relatively short period of supervision and they pay some fines and that's the end of it it's much more than that it's a very serious offense the people who are good kids like chelsea and zach who when told by the judge listen to these terms and conditions of supervision follow them and you have the opportunity to not have the stigma for some period of time on your record then supervision is an appropriate sentence and judge bakker presumably looked at all the factors and decided that that was true in both of their cases but they could have been sentenced up to three hundred sixty four days in jail they could have been fined up to twenty five hundred dollars if convicted they would have lost loss or right possess a firearm while under twenty one these are serious offenses and violent grief we've never met in any way shape or form to take away from the seriousness of illinois has looked at this and said this is a serious situation kids shouldn't be drinking or possessing alcohol when you're under twenty one but if it's not if it doesn't have anything at all to do with a motor vehicle and in another point that was brought up by the secretar attorney is there was no indication of any evidence that they were going to drive a car in this case well that's true but it was much broader than that judge becker specifically found that there was no car involved in any way shape or form in this case it wasn't a situation where somebody got in a car went to a liquor store came back the evidence in this case was everybody was staying at the place that they were at their parents were aware of it and they weren't going anywhere and no car in any way shape or form was involved in getting the liquor there and being available for the kids to drive away or in any way shape or form related to it and i think that's very important for the court to take into account and i agree with the observations made about the broad language in the linear case i think effectively what secretary of state's office is asking you to do is to overrule it there and i understand while they've attempted to distinguish it to me it's a distinction without a distinction you agree of course the rational basis test lies yes i do mr chief justice yes i do and i want to digress just for a second because it's something that i alluded to in my brief which if the court disagrees with me i understand that but i think that the first issue that needs to be addressed is whether or not six dash to all six is discretionary or whether it's something they have to do the language in the statute says that the secretary of state's office is authorized to suspend or revoke one way to read that would be to say well it's one or the other idol and that's what they're arguing they have to do one or the other but that's not the way i read it's authorized to it's not even shout and we can argue whether or not shall is mandatory permissive it says he's authorized to to me that means they could could to me is discretionary they could suspend they could vote maybe they don't want to do anything at all the stand she does not say they must suspend or they must vote again if the court disagrees with me and says that that language means that they have to take some action i understand that but i don't think it cuts away from my argument under listener that it's a due process violation when there is no car in any way shape or form involved in this particular case in either mr beck  case and i think that the cases that they rely upon the horvath and fried cases no disrespect to those courts but i don't get the sense that there was a new analysis of the prongs that were set forth in the properly affirm judge becker and find that in this particular situation with no car in any way shape or form being involved that's a violation of due process i believe that justice  view i don't think necessarily because our point of view is sad for the limited facts of our case the evidence is no motor vehicle in any way shape or form i guess if there's a child support case out there that says that somebody has a driver's license and and their ability or inability or their failure to pay child support has absolutely nothing to do with a motor vehicle i guess there could be some argument made to that but most people are going to want to have a driver's license to get back and forth to work to earn an income so i don't think necessarily that that would be the case that to do this would open that sort of a floodgate he really put me in a trick bag justice thomas i certainly don't mean to to to speak ill of your other opinions i think arguably arguably one could say that yes and that there have been other cases which have involve less of a stretch and i thought about it this way you know drinking and kids getting hurt killed this is a serious situation as we found out texting or talking on the phone being tired or being in e driving fast driving recklessly and i thought you know if we're going to start doing this i guess they could make a law that says if a kid sits in his bedroom late at night and places video game or talking on cell phone or texting he might go out there practice sat on the roads or be more likely to practice out on the roads and i would hope that we would have a law that says if a kid's going to play a video game when he's tired at night while texting a phone that's going to lead to him losing his driver's license but that's kind of were the secretary of but again we're involved in a situation where the trial court has entered a finding that there's no car involved in this in any way shape or form i wanted to touch briefly upon the proportion of penalties and i understand that i may be asking the court to look at the word penalty that's in our own like constitution perhaps in a broader form than it has in the past and the thing that's and i think as recently as the klepper of the session about a month ago the court looked at the factor set forth four different date i'm sorry six different bases that it was a violation of due process equal protection in proportion penalties generally and specifically as applied as applied to the facts in this particular case  finding it unconstitutional as applied to this case as a due process violation on the proportionate penalties it's very difficult to go out there and explain to people that if somebody strive around with a beer can that's open in the car and they get court supervision they don't lose their driver's license but if somebody said a house when there's no motor vehicle with vault at all they do looser driver's illegal transportation about the hall driver a passenger is a petty offense if you the passenger you can get convicted and not lose your license i'm twenty years old and i get trucks would have an open beer driving around this a passenger in a car and i get convicted of it i don't lose my license i lose my license if i get both be there if i'm both the driver and a conviction is after i admit that the elements aren't identical but the ironic thing is the one that has the additional element being in a car is treated less severely how do you fence that a class a misdemeanor you don't lose your license unless you're convicted then the driver to me i would ask the court to find that it's cruel and degrading it again it's very difficult to explain to the general public on somebody driving around with an open beer can get supervision he doesn't lose his license and somebody who has no connection at all to a motor vehicle can thank you and i'd be happy to answer any other questions  just a few points unanimous first of all there might have been some confusion about our argument in the opening our position is not that underage drinking is a relatively minor offense the point i was trying to make is that in most cases as in this case for a first offense many defendants receive only minor criminal penalties the fine in the short term of courts revision and bat in combination with the fact that young people tend to highly value having the ability to drive means that it was rational for war it would be rational for the general assembly to conclude that license suspension under these circumstances would be a powerful deterrent to underage drinking we certainly agree with mr trenton that underage drinking is a serious offense and in fact that is why we urge the court to sustain the law issue which is designed both  to protect the roadways from unsafe driving and to deter underage drinking i second mr trenton stressed the fact that there was no vehicle involved here and of course we can see this point i'm never the last at least thirty six states have laws just like illinois no motor vehicle is involved be involved before the secretary of state may take action against an underage drinkers driver's license in those states and these l consistently have been upheld third there were some questions about cases that were might have to be over ruled out were this law not sustained specifically freed and horvath and i do believe it's possible those cases would have to be overruled because the basis for the appellate court's reasoning was that there is a reasonable link between our possession of fake id underage drinking drinking and driving and then unsafe driving so certainly the facts are different the appellate court's reasoning would be called into question where the circuit court's decision sustained here and similarly as to justice comments question regarding whether other law such as child support laws that allow for action against driving privileges when nobody a cool is involved it's very possible that such laws would be called into question then finally on the proportionate penalties clause issue mr trent trenton argues that that individuals i guess who drive with alcohol and perhaps violate the open container laws treated less severely then individuals who commit their underage drinking violation outside of a car and in fact the open container prohibit sion and section six twenty which prohibits underage consumption of alcohol have as he pointed out different elements for example the open container prohibition sweeps far more broadly than does section six twenty it allows for out for  in a situation where say a passenger in the back seat i had an open container the minor driver could be could be held culpable under the open container provision in that situation even though the minor driver may not qualify under six twenty for having i engaged in underage possession of alcohol at the same time the open container provision does have additional elements to be culpable under the open container probably shouldn't you have to be not only a minor but you have to be the driver and the container has to be open those things driving in the open container are not true of section six twenty so i think as mr tremont would agree these offenses don't have identical elements and therefore they cannot rise to the