the second case are called the docket is agenda number eleven case number one eleven eight seventeen people versus johnson counsel for the  the morning your honor smith please the court my name is brett zeven i represent the defendant this matter mr amos johnson after mr johnson was convicted of simple drug possession in this case pursuant to section five or three of the code of corrections he was required to give a d n a sample that was to be placed in the statewide d n a database and he was also charged two hundred dollars for this the question before this court is whether that two hundred dollars charge is a fine or a fe this court in people versus jones held but the central characteristic that separates a fine from a fee is whether that charge seeks to compensate the states for any expense in prosecuting the defendant in that case and if that is indeed the purpose of the charge it's a fee on the other hand if it just goes to a monetary penalty then it's a fine and mr johnson urges this court to hold that it is a fine  now the lower court rationale for holding that this was a fee is that it goes to create a statewide d n a database but that rationale is inconsistent with this court's holdings in people versus jones and also in people versus graves and there's a few main reasons why that so first and foremost there's no direct relationship between this two hundred dollars charge which occurs after the been a defendant is already convicted and the creation and maintenance of this d n a database those charges instead go to possible prosecutions of the a radical defendants in the future but there's no direct connection between  that charge that and mr johnson's actual case and there's a couple of of similar fees that illustrate the difference between a fine or a fee that i think are instructive for the court here cases the court looked to what's one of the actual attributes of these charges and both instances those charges went to cover actual costs in the prosecution of the defendants and that particular case and little john that went to prove that state items at issue were indeed illegal substances and in the d a s case it went to whether the defendant had committed a vehicle code violation so in both of those instances there's a direct link there's a connection between what these charges went to pay for and the actual case that was at issue and this case on the other hand there's no direct connection between the two hundred dollars charge that happens after a conviction and  well that's that's certainly true that it's called a fee and the statute in this court recently and people versus marshall referred to this two hundred dollars charge as a fee and numerous spots in the opinion but going back to this decision that this court's holding of people versus graves those statutory labels are not the end all be all and and whether something is a fine or a fee again goes back to the central question is whether this i'm so i can repeat that it might read well again this just goes back to the label and if the if the label is contradicted by the actual purpose of the charge then the label doesn't control it's the actual purpose of the charge and that's people resist jones people versus graves at another another point is that there is no language in the statutes that specifically says that this two hundred two hundred dollars charge can't be applied to pre sentencing or post sentence in credit presumably if the legislature wanted to to prohibit this charge from being subject to pre sentencing credit it could have put the language in the statute  nutz and the third point is that this is punitive i mean we can't forget that this is d n a that's being taken from the defendant and voluntarily and put into a database where it's going to stay well past his lifetime well past when his actual sentence for this offense has been completed  no it doesn't that's that's a whole argument your honor is that that it does not because the statute is limited to it applies only after conviction so here there is no connection between the two hundred dollars charge which goes towards maintaining the database it goes to testing future samples in future cases that have no connection to mr johnson in this case whereas again going back to other similar fees there were at play and diaz and littlejohn there is that connection the court said well what's the purpose of this charge it goes to testing the items to prove that they are indeed controlled substances it goes to testing the defendant's blood to see whether he did commit a vehicle code violation now if this is up on that on that line of thinking would that mean that if the fee is used to compensate the state for the taping of the sample and testing of this defendant's fluids  is a fear of mine those who question well i think both of those kind of go go towards the same thing and my response is that they both are things that happen after the after the sentence and addressing that the probation question that's completely different than the the d n a charge here a probation fee is something that has a direct connection with the defendant's actual sentence and it's actually actually a benefit to the probation or there's no benefits for mr johnson given his d n a to be put in the database to stay there forever and be searched might exclude him from some future oh well that's certainly a possibility but i don't see us all voluntarily given our d n a to be put into a database i mean it is it is a penalty it is an intrusion you know that's a separate issue from what's in front of the court today another distinction is that probationary probation is discretionary the judge has discretion about whether he or she is going to give discretion probation to the defendant whereas the statute is mandatory if you're a first time offender the judge has no discretion about whether  defendant for that then they can write another statute but addresses that but that is not in play here  punitive it's a monetary penalty it is not a fee because there is no connection between that two hundred dollars charge would have which occurs after the conviction and prosecute him for this simple drug possession case thank you the nature of the fee because it is part of the conviction process so the firm in a criminal case the from a is if he's acquit he's convicted however the case is not complete until he's sentenced this fee and the d n a so testing is stich a poorly mandated as a condition of sentencing  as a condition upon conviction therefore it is in fact part of the prosecution and conviction of the fund the graves  which counsel mention says that the charges a fee if it seeks to compensate the state for any of the costs resulting from prosecuting that the found since the has mandated that this assessment be imposed upon conviction then requiring the defendant to pay it compensates the state for costs incurred as a assessment is a feat to compensate the state for maintaining the d n a database that is required to to maintain  itself ninety five percent of the fee goes to the directly to a dedicated fund for the benefit of the state police crime lab to maintain their equipment to maintain their training to conduct the analyses that they're required to conduct and the other five percent goes to the clerk of the circuit court of whatever county the convictions head in to compensate the clerk for administrative expenses associ with this particular matter therefore a hundred percent of the he any fee is in fact a fee to compensate either the state police crime lab or the clerk of the circuit court experience it was not the subject of the successful prosecution but the costs are assessed only upon conviction from jones and also talked about in gravesend that's the quote costs incurred as the result of prosecutor defendant and and people versus anthony a first district case that's pretty recent took that language and then this is where this result of the prosecuting argument is coming from but under that logic any as your honor pointed out any fee any charge that that that occurs occurs post and of a miracle view of what encompasses the prosecution that the prosecution does not go over to sentance i think all he's saying is that no the s p part of the prosecution the prosecution encompasses sentencing it doesn't say if you have a list of fees and a list of fines that the that there won't still be a delineation as to which ones are fees and which ones are fine it's very well i disagree i mean the argument if that is the charge or result of the prosecution under this logic anything that happens after a conviction then would be a fee even something clearly punitive well our argument would be that would be that would be a fine and that's the same the same argument here is that there's no there's no actual connection between maintaining this d n a database because it has nothing to do with this actual offense and again going back to littlejohn and diaz and other funds where the court used its analysis used its test from jones is that it goes to whether it compensates for that actual case here there's you know d n a wasn't involved at all there was no   that that specific is it the result is it the results of prosecution that happens after conviction or is it going to be applied to something a cost and a charge incurred during the prosecution and again that this also goes back to the fact that there's other authority that would apply if this was a drug case or i mean this was a murder case or a sex case where d n a was involved and there had to be a charge and analyzing the d n a there this goes to analyzing a of other defendants altogether of maintaining the database well into the future that connection is much too tenuous to mr johnson's case although the state cites the marshal or the language usually fees that is the language of the star if you obviously in the issue was not before this court martial as to whether it was if we are fine but is there anything in martial that would have an effect on this case where the issue of where the issue was whether the court could impose the d n a he every time a person was convicted even though his or her d n a was already in the database and we said that the fee was intended to cover the cost of the d n a analysis and that it should only be paid when the  the state could get a subsequence two hundred dollars charge and they could take the the defend its d n a again and they look to that fact to support its rationale that it was compensatory and the horse  martial disagreed with that arguments and held that could only be taken once so if anything i think it goes to show that it's more of a fine it's a one time penalty than a curse to someone who's been convicted of a felony offense and i don't know why for a first not be argued that because if it is in fact a fine it could the d n a fee could be assessed by the court every time there's a conviction because it's a penalty not related to compensation marshall clearly held that it should be related to the cost of extracting and and maintaining the d n a sample i can i can see that argument but again i'm going to i'm going to go back to the fact that and this actual case pursuant to jones and graves there is no there is no connection between that two hundred dollars charge in this case and prosecuting mr johnson purchased drug possession case that but i'm i'm i'm just i'm going back to this as a result of the conviction language that the anthony court interpreted versus the way that the graves court seemed to be explaining that's the particular language we're arguing that it applies to the actual cost of the of the actual case and not something that happened happened subsequent to the conviction thank you rogers thank you counsel for your arguments today case number one eleven aids one eleven eight seventeen people versus johnson's taken under vitamins agenda number eleven