Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. Filed: 10-28-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Bo on e C ou nt y. ) Plaintiff-Appellee, ) ) No. 06--CF--61 v. ) ) ANTONIO MAL

DONADO, ) Honorab le ) R. Craig

Sahlstrom, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Bo on e C ou nt y. ) Plaintiff-Appellee, ) ) No. 06--CF--113 v. ) ) JOS E VASQ UEZ, ) Honorab le ) John R. Truitt , Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Bo on e C ou nt y. ) Plaintiff-Appellee, ) ) No. 06--CF--111 v. ) ) VICTORI NO P. MONGUE, ) Honorab le ) John R. Truitt , Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-2- THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Bo on e C ou nt y. ) Plaintiff-Appellee, ) ) No. 06--CF--433 v. ) ) MARCEL INOROMERO-F LORES , ) Honorab le ) John R. Truitt , Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE SCHOSTOK d

elivere d the opini on of the c ourt: The defendants, Antonio Maldonado, Jose Va squez, Victorino Mongue, and Marcelino Rom ero-Flores , were c onvicted of agg ravate d driving

under the

influenc e (DUI

) (625 I LCS 5/11--501(d)(1)(G) (West 2006)) for driving while intoxicated and while not licen sed to dri

ve by this state. The defendants were sentence d to probation and ordered to pay certain fines. On appeal, the defenda nts argue that section 11--501(d)(1)(G) of the I llinois Vehicle Code (the Vehicle Code) (625 IL CS 5/11--501(d)(1)(G) (West 2006)) was notin ef fe ct at th e t im e o f t he ir of

fe ns es . A cc or di ng ly, they request that their convicti ons be re duced to DUI a nd that t hei r cases be remanded for new sentencinghearing s. Alternatively , the def endants a rgue that the y a

re entitl ed to mone

tary credit agains ttheir fines for ti

me spent i n custody

prior to se

ntencing . We affir

m and remand with directions. OnMarch 17, 2006, Maldonado was charge d by indictment with two counts of ag gravated DUI (625 I LCS 5/11--501(d)(1)(G) (West 2006)). On April 16, 2006, Mongue and Vasquez were charged in separate, unrelated indictments with two counts of agg ravated DUI a s defined in section 11--501(d)(1)(G), and tw o cou nts of aggravated DUI as defined in section 11--501(d)(1)(H) ( 625Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-3- IL CS 5/11--501(d)(1)(G), (d)(1)(H) (West 2006)). On November 3, 2006, Romero-Flores was indicted on two counts of aggravate d DUI (625 I LCS 5/11--501(d)(1)(G) (West 2006))
. All four def

endants w ere re

present e d by the sam e trial counsel. Each defendant filed a pretrial motion to declare section 11--501(d)(1)(G) of the Vehicle Code ( 625 IL CS 5/11--501(d)(1)(G) (West 2006 )) uncon stitutiona l. All of the mot ions were denied. Each of the defenda nts' cases eventually

proceeded to a

stipulated bench trial. In eac h case, the parties stipulated to the foundation and admissibility of the evidence , but did not stipulate whether the evidence was sufficient to convic t. The evidence i ncluded p olice re

ports and Breathaly

zer test r esults as to each defenda nt. As to Maldonado, Vasquez, and Mongue, the stipulated evide nce als o incl uded d river 's abstracts showing that they did not possess drive r's licen ses. Finally

, in each case, th e State proceeded

on on ly o ne count o f aggravated D UI (625 I LCS 5/11--501(d)(1)(G) (West 2006)) and dismissed t

he additi onal coun

ts. The p olice reports indicated as follows. On Februar y 25, 2006, the police stopped the ca r Maldonad o was dr iving, because a reg istration check showed the registered ow ner to have a suspended

driver's license. Maldonado was not the owner of the car. Maldonado admitted that he had been dri nking, h e failed

multiple f

ield sobr iety tests, and a

Breathaly

zer test showed his blood alcohol concentration

(BAC) to be 0.238. On March 7, 2006, the police pulled Mongue over after observing him commit several traffic violations. Mongue admitted that he had been drink ing, and
a Breathaly

zer test showed hisBAC to be 0.125. On March 26, 2006, Vasquez was pulled over after
a police officer s aw Vasquez 's car straddling the double y ellow lines in the center of the road. Vasquez admitted that he had been drinking, and a Br eathalyzer test re

vealed his BAC to be 0.239. O n August 19, 2006, Romero-Flores was pulled over for improper lane usage. The of fice rNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-4- determined

that Romero-Flores did not have a d river' s l icense a

nd that he

was too int

oxicated to perform field sob riety

tests. Romero-Flores agreed to submit to a Breathaly

zer test, which showed his BAC to be 0.184. None of the defendants were lice nsed to drive. After reviewing the stipulations, police reports, and Bre athalyzer test results, the trial court found each of the defendants guilty of aggravated

DUI (625 I

LCS 5/11--501(d)(1)(G) (West 2006))
. The trial cou

rt senten ced Mald onado, Va squez, and

Mongue to 18 months ' condi

tional dis char ge with stayed jail time and imposed fines of $400 a long with various other fines, costs, and fees. The tr ial court sentenced Romero-Flores to 12 months' probation with stay ed jail time and imposed a $600 fine, as well as other fines, costs, and fees. Eac h of the defendants fi led a time ly notice of appeal. On March 20, 2008, the defe ndants filed a mo tion to con solidate their appeals. On March 31, 2008, this court granted that motion. The defendants' first contention on appeal is that they we re charged

and convicted under a subsectionof section 11--501 of the Ve hicle Code that never took effect. The def endants ackno wledge that Public

Act 94--329, passed May

18, 2005, and effective January 1, 2006, amended section11--501(d)(1), in part, by adding an additional subsection, (d)(1)(G), whic h elevated the off ens e of DUI, a Class A misdemeanor, to aggrava ted DUI, a Class 4 felony

, where the violation
was committed while the driver did not possess a driver's license. The defendants argue, howeve r, that Public Act 94--609, passed May 20, 2005, and effective Januar y 1, 2006, deleted section (d)(1)(G) added by Public Act 94-- 329, so thatthe defendants' offenses were once again cla ssified
as DUI , a Class A

misdemea

nor. The defenda nts argue that Public Act 94--609 controlled at the time of the offenses of Mongue, Maldonado, and Vasquez. The def

endants f urther a rgue that Public Act 94--963, passed April 25, 2006, and effective June 28, 2006, also d id no t incl ude th e langu ageNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-5- added by Pu blic Act 9 4--329 a

nd that this

act contro lled at the time of Romero-Flores's offense
. Fi na ll y, the defendants argue that all th e amendments to the Vehicle Code made by the 94th Ge neral As se mb ly, containe d in

Public A cts 94--110, 94--113, 94--114, 94--116, 94--329, 94--609, and 94--963, irreco ncilably

conflic t, rende

ring imp ossible a

cohesive reading of all sev en acts. At the outset we note that the defendants are asser ting their clai m, that section 11--501(d)(1)(G) of the Vehicle Code did not exist at the time of their offenses, for the first time on appeal. Ge ne ra ll y, claims raised for the first time on appeal are dee med to be forfeited
. People v. Williams , 267 Ill. App. 3d 82, 91 (1994); see also People v. Hauschi ld , 226 Ill. 2d 63, 73 n.1 (2007) (alth ough courts often use "forfeit" and " waive" interchangeably, the term "forfeit" applies to issues that could have been raised, but were not, and a re therefore barred) . However, we may re view the defenda nts' contention for plain error, as senten cing a defenda nt under a

nonexisten

t law woul d obviously violate h is substan tial rig hts. See 13 4 Ill. 2d R. 615(a) (plain errors affecting substantial rightsmay be noticed on a ppeal even though they

were not brought

to the attention of the trial court); Peoplev. Kitchen , 159 Ill. 2d 1, 42-43 (1994) (plain error may be invoked in criminal cases where the plain error affected

substantial rights). Moreover, a conviction or sentence that does not conform to statutory requireme

nts is void ( People v. Madej , 193 Ill. 2d 395, 401 ( 2000)), a

nd challe nges to void judgments may be r

aised at any time (

People v. Balle , 379 Ill. App. 3d 146, 151 (2008)). Issues of statutory

construction present

questions of law that we review de novo . O'Casek
v. Children' s Home & Aid Soc iety of Il linois , 229 Ill. 2d 421, 436 (2008). As in all cases of statutory construction, our pr im ar y objective is to ascertain and give effe ct to the intent of the legislature. O'Casek , 229 Ill. 2d at 436. "Statutes are to be construed as they

were intended

to be construed whenNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-6- they were passed." People v. Boreman , 401 Ill. 566, 572 (1948). Section 6 of the Statute on Statutes states in p ertinen

t part: "Two or more A cts which relate to [the] same subject matter and which are enacted by the same General Assembly shall be construed t o gether in such ma

nner as t o give f ull ef fectto each Act except in case of an irr econcil able conflict. I

n case of an irre concila

ble conflict the Act last acted upon by the Gene ral Asse mbly is controlling to the extent of such conflict. *** Anirreconcilable conflict between [two] or more Acts which amend the same section of an Act exists only if the amendatory Acts make inconsistent

changes in the section as it theretofore existed." 5 IL CS 70/6 (West 2006). The gener al rule is that, when an act is amended so as to read as it is repea ted in the amendatory

act, portions of the old law not repeated are deemed re pealed. People v. Caraba

llo , 231 Ill. App. 3d 685, 687 (1992). "However, courts will strive to find harmony between legislative acts
so as to giv e effe ct to the le gislatu re's in tent. For example, our

supr eme c ourt has sta

ted that, ' [i]f the two enactments are capable of being cons trued so that both may stand, the

court sho

uld so construe them.' " Caraba

llo , 231 Ill. App. 3d at 6 87-88 , quot ing People v. Ullrich , 135 Ill. 2d 477, 483 (1990). F

urth ermore, when we determine the intent of the legislature as to a particular act or amendme nt, we are not confined

to its literal language, but may consider its history and subsequent amendments. Caraba

llo , 231 Ill. App. 3d at 688. As stated by o ur supre me court : "When confronted with probl ems arising when two or more bills are passed at the
same session of

the leg islature , each p ertainin g to the s ame subje ct or ame nding the sameNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-7- statute , the primary que stion, as in all cases of statutory c onstruction, is the intent of t h e legislature, rather than the technical priority of the passage of the acts. [Citation.] The whole record of the le gislatu

re, including

acts pas sed at sub sequent s essions, i s open to a scerta in suchintent, and, once ascertained, it will be given effect irrespective of prior ity o f enact

ment. [Citations.] For a later enactment to operate a s a repeal by implication of anearlier one there must be such total and manifest repugnance that the two cannot stand together. [Citations.] Onthe other hand, if the two enac tments are capable of being c onstrued so that both may stand, it is the duty of this court to so construe them. [Citations.]

***

*** And, in the absence of a clear legislative intent

to the contrary

and where two acts are not so inconsistent that both c annot sta

nd and be given e ffect, a later l aw which is merely a re-enactment of a former law does not repealan in termediate act which has qualified or limited

the first one, but the interme diate act will be deeme d to rema inin force and to qu al if y or mo di fy t he new a ct in the same mann er as

it did the f irst. [Citat

ions. ]" People ex rel. Dickey v. Southern Ry . Co. , 17 Ill. 2d 550, 554-56 (1959). In Dickey , at issue were two 1957 amendments to section 17--2 of the Illinois School Code (then Ill. Re v. Stat. 195 5, ch. 122 , par. 17 --2, now 105 I LCS 5/1 7--2 (We st 2006)) . The first amendme nt, among other thi ngs, amended section 17 --2 by adding section 17--2(3), which addressed the annual tax a school board could levy , for building and educationa l purpose s, in distri cts maintaining grades 1 to 12, and section 17--2(4), which g ranted school dis tricts the

authority to levy transportation

taxes if the

y pr ovided tr ansporta ti o n for pupils. Dickey , 17 Ill. 2d at 552. All theNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-8- other additions or changes accomplished by the a mendment related to the transportation of school children or the transportation fund. Dickey , 17 Ill. 2d at 552-53. The second amendment, which was passed six day s later, also, among other things, amended section 17 --2 of the School Code. Dickey , 17 Ill. 2d at 553. I t amended sections 17--2(1) and 17--2(3) to incre ase the r

ates at w hich scho ol distric ts could levy taxes for educa

tional and building purposes . Dickey , 17 Ill. 2d at 553. However, the sec ond amendment omitted section 17--2(4), whichhad been

added by the first amendment and had addressed the transportation tax. Dickey , 17 Ill. 2d at 553. The question presented, therefore, wa s whether the second amendment

had implic itly repealed the school district' s authori ty to levy a transporta

tion tax, section 17--2(4). The defendant argued that the two amendments were in consiste nt and tha t the sec ond amend

ment, bei ng the la st expression of the legislature, must prevail. Dickey , 17 Ill. 2d at 554. The Dickey

court determined

that the two amendments were intended to make separate and distinct changes in section 17--2 an d that both

could be given effect without inconsistency
. Dickey , 17 Ill. 2d at 555. The court determined t hat the p urpose of the first amendment was to create a transportation

fund for school districts. Dickey , 17 Ill. 2d at 555. The purpose of the secon d amendment

was to adjust educational and building taxrates for certain districts. Dickey , 17 Ill. 2d at 556. The c ourt dete

rmined tha

t t he p urpose of

the second amendment was n either a ntagon istic
nor repug nant to the purpo se of the

first amendment. Dickey , 17 I ll. 2d at 55 6. "This b eing the case neither amendment can be said to thwart the other and both may be given effect." Dickey , 17 Ill. 2d at 556. Our supreme court recent ly a ddresse d a similar

issue of s tatutory

construction in O'Casek
. The question in O'Casek

was what version of section 2--622(a)(2) of the Code of Civil ProcedureNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-9- (the Code) was in effect at the time the pl aintiff filed her medical malpractice complaint. Be fore 1995, section 2--622 of the Code provided that a pl ainti ff, or the plaintiff's attorney, was required to attach to

a medical malpractice complaint either (1) a n affidavit, with a physicia n's report attached, verifying that ther e was a r easonab le and me

ritorious basi s for th e filing of the action; or (2) an affida vit that the affian

t was una ble to con sult with a

phy sician pr

ior to filin g the complaint, be cause
a statute of l imitatio ns would have impaired the action. In the second instance, section 2--622 indicated that the plaintiff would have an add ition al 90 days to file a c ertificate of merit and the phy sician' s report . See 735 I LCS 5/2 --622 (We st 1994); O'Casek , 229 Ill. 2d at 425. The Civil Justice Re form Amendments of 1995 (Pub. Act 89--7, eff. March 9, 1995) amended section 2 --622, in

part, to add another requirement to the affidavit, namely , verification that the plaintiff

had not pr

eviously voluntar ily d ismissed th e action . In o ther wor ds, under Public Act 89--7, a plaintiff was precluded from obtaining a 90- day extension to file a cer tificate of merit if the plaintiff previously volun

tarily dism issed the same or substantially the same cause of action. O'Casek , 229 Ill. 2d at 426. On December 18, 1997, the supreme court held Public Act 89-- 7 void inits entirety. O'Casek , 229 Ill . 2d at 426, c itin g Best v. Taylor Mac

hine Works , 179 Ill. 2d 367, 467 (19 97). "The amendments made to section 2--622 were not among the core provisions he l d substantiv ely

unconstitutional, but were nonetheless deemed invalid bec ause the core provisions could n ot be severed from the balance of t he Act." O'Casek , 229 Ill. 2d at 426. Thus, after the decisionin Best , section 2--622 reverted to the pre-1995 version of the statute. O'Casek , 229 Ill. 2d at 426. The Best

c ourt n oted, however, that the General Assembly was "free to reenac

t whatever provisio ns it deem[ ed] desirab le or appropri ate." Best , 179 Ill. 2d at 471. The O'Casek

court further explained:Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-10- "On February

4, 1998, less than two months after our decision in Best , the General Assembly passed Public Act 90--579. Effective May 1, 1998, Public Act 90--579 amended section2--622(a)(1) by

adding naprapa

th s to the list

of cover ed healt h profes sionals. No ta bl y, however, Public Act 90--579 did not add naprapaths to the pre-1995 ve rsion of section2--622 that was in effect after Best . Rather, it added naprapaths to the 1995 version struck down in Best ." O'Casek , 229 Ill. 2d at 426. In O'Casek , the p laint iff fi led an amend ed med ical m alprac tice c ompl aint o n Augu st 30, 2002. Attached

to the amended complaint was an affidavit provided by plaintiff's attorney

stating that he had been unable to obtain a consultation with a health professional before the expiration of the statute of

limitations , but that the requir ed cert ificate and repo rt would be

filed with

in90 days. O'Casek , 229 Ill. 2d at 426. After failing to timely file the c ertificate and report, the defenda nts filed
a motion to dismiss. The plaintiff responded by filing a motion to voluntarily dismiss, which the trial court granted. O'Casek , 229 Ill. 2d at 433. One year later, the plaintiff refiled her cause of action. Attached to the refiled complaint was
anaffidavit from the plaintiff's counsel stating that he had been unable to obtain a c onsultation with
a health professiona l and that th e requir

ed cert ificate and report would be

filed with

in 90 day s. O'Case k , 229 I ll. 2d at 433. The plaintiff's attorney subsequently filed a c ertificate of merit and a physician' s report within the 90 days. O'Casek , 229 Ill. 2d at 433. The O'Casek

defenda nts filed a

motion to dis miss the pla inti ff's co mplaint for failing to comply with section 2--622 of the Code. Specifically , the defendants argued that Public Act 90--579 reenacted the version of section 2--622 that was struck down in Best and that, based on

that version of the statute, the plaintiff's attorney was not entitled to a 90-day extension to file the certificate of
m erit and phy sician' s report , becau se the pla intiff ha d previou sly

voluntar ily d is missed th eNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-11- complain t. O'Casek , 229 Ill. 2d at 434. T he t rial court granted the defenda nts' dismissal motion. O'Casek , 229 Ill. 2d at 434. On appeal, the appellate court rever sed. O'Casek , 2 29 Ill. 2d at 435. The appellate court determined that Public Act 90--579 did not reenac t the provisions of section 2--622 struck down in Best . Accordingly , the appella te court determined

that the pre-1995 version
co ntrolled, which allowed the plaintiff a 90-day extension to file the certificate of merit an d physicia n's report regardless of whethe r the plaintiff had p re viously taken a voluntary

dismissal. O'Casek , 229 Ill. 2d at 435. Our supreme court affirmed

the appe llate cou

rt. O'Casek , 229 I ll. 2d at 43 6. The supreme court determined that this was essentially a n issue of s tatutory

construction and stated that

" '[s]tatutes are to be construed as they were intended to be constr ued wh en the y were pass ed.' " O'Casek , 229 Ill. 2d a t 441 , quot ing Boreman , 401 Ill. at 572. The O'Casek court determined that the legisla

ture did not intend f

or Public A ct 90--579 t o reenact the provisions of section 2--622 struck down in Best
. O'Casek , 229 Ill. 2d at 447. I n determining what the legislature intended, the O'Casek court fo und two ite

ms signif icant. First, the O'C asek

court explained

that the G eneral

Assembly

Operati ons Act (2 5 IL CS 10/10(f) (West 2004)), the Statute on Statues (5 IL CS 70/5 (West 2004)), and the Illinois House and Senate rules (9 5th Il l. Gen. As sem. Hous e R. 37(e ), Senate R. 5--1(e ); 90th Ill. Gen. A ssem. Hou se R. 37(e), Senate R. 5--1(e)) all indicated that, i n a n a me nd at or y act, new matter was to be either underscored

or printed

in italics and dele ted matte r was to be shown with a crossed line. O'Casek , 229 Ill. 2d at 445. The O'Casek court held that, "[b]ecause the Illinois Constitu tion requ ires that a 'bill expressly amending

a law sha ll set forth complete ly the sections amende d' (Ill. Const. 1970 , art. IV, §8(d)), the requirement of italics or underscoring to highli ght new

matter pl ay s an impor

tant role indiscern

in g legislat ive intent ." O'Casek , 229 Ill. 2d at 445. The O'Casek court thereforeNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-12- determined

that, bec ause the

only words hig

hlighte d in Public

Act 90--579 were the words adding naprapaths to section 2--622(a)(1), it could beinfer red th at thi s was t he onl y change the legislature intended. O'Casek , 229 Ill. 2d at 445. Second, the O'Casek

court examined the legislative history of Public Act

90--579. O'Casek , 229 Ill. 2d at 446-47. The O'Casek court n oted, aft er reviewing the House and Senate legislative hearin gs at which Public Act 90--579 was passed, tha t the legislative history wa s devoid of any discussion of Best

or the Civil Justice Reform Amendments that were st ru ck by Best
. O'Casek , 229 Ill. 2d at 447. The O'Casek court held t hat "[ a]lt hough, in giv ing the am endment context, the legislature used the 1995 ver sion of se ction 2-- 622, we r egard this as a legislative o versig ht" and t hat, therefore, Public Act 90--579 did not reenact the version o f section 2--6 22 held invalid in Best
. O'Casek , 229 Ill. 2d at 447. This court recen

tly addre ssed a similar argument in People v. Prouty , No. 2--07--0111 (September

8, 2008). In that case, the de fendant was convicted of aggravat ed DUI (625 I LCS 5/11--501(d)(1)(A) (West 2006)) because he had committed DUI for the third or subsequent time. The trial cou

rt treat ed th e offens e a s a Cl as s 2 fe lo ny a nd se nt en ce d t he de fe nd an t a cc or di ng ly. Prouty , slip op. at1. Onappeal, the defe ndant ar gued th at he shou

ld have be en sente

nced for a Class 4 fe lo ny b ecause

Publi c Act 94--116 (Pub. Act 94--116, eff. January 1, 2006), which amended section11--501( d)(2) of

the Vehic le Code to make a vio lation of s ection 11 --501(d )(1)(A ) a Class 2 felony, was impli citly

repeal ed by

Public Ac t 9 4 --609 (Pub. Act 94--609, eff. January 1, 2006). Prouty , slip op. at 1. Specifically, the de fendant argued that Public Act 94--609 did not include the langua ge that Public Act 94-- 116 had a dded and thus implic itly

repealed the amendment. Prouty , slip op. at 2.Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-13- This court

determined that, b ecause the two acts did not irreconcilably conflict, the second did not repeal the first. Prouty , slip op. at 1. Thiscourt noted that Public Act 94--116 amended the Vehicle Code so as to raise aggrava ted DUI from

a Class 4 felony to a Class 2 fe lony. Prouty , slip op. at 8. Pu

blic Act 94--609 made a much narrower c hange, limiting the discretion of a trial court to impose probation where the defendant's c ommission of DUI proximately caused a fa tal accide nt. Prouty , slip op. at

8. This co

urt dete rmined tha

t, becau se each

act made separate and distinct chang es to the Vehicle

Code, both

acts cou ld be giv en full

effect without inconsistency
. Prouty , slip op. at 7. This cour

t further held that , becau se the two acts wer e passed only four day s apart, it co uld be inferred that the draf

ters of Public Act 94--609 simply overlooked w hat had just been added by Public Act 94--116. Prouty , slip op. at 7. T his court stated tha

t, "had t he legi slature c onsciousl

y intended to repeal what it ha

d passed f our day s earlie r, it probably would have

done so explicitly by striking out the language that Public Act 94--116 had added to s ubsection (d)(2)." Prouty , slip op. at 7. Howev er, the l a nguage add ed by Public Act 94--116 was merely a bsent from Public Act 94--609. As pertinent here, Public Act 94--329 amended section 11--501(d)(1), by adding subsections (G) and (H), as f ollows: "(d)(1) Every pe

rson convicted of committing a violation of this Section shall be guilty of aggr avated

driving under the influence of alcohol, other dr ug or drugs, or intoxicating compound or compounds, or any c ombination thereof if: * * * (G ) the p erson committed the violation w

hile he or she did not

possess a drive r's license or permit or a restricted driving permit or a judicia l driving permit;
orNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-14- (H) the person committed the violation while he or she knew or should have knownthat the vehicle he or she was driving was not cove red by a liability

insurance po li cy. " Pub. Act 94--329, eff. January 1, 2006. Pub lic Act 94--609, which was passed two day s later, amended section 11--501(d)(2) a s follows: "(2) Except as provided in this paragraph (2), a person convi cted of aggravated driving under the influence of alcohol, other drug or drugs , or intoxicating compound or compound s, or any combination ther eof is guilty of a

C lass 4 felony. *** Aggravated driv ing under the influence of alcohol, other drug or drugs, or intoxicating compound o r compound s, or any combination ther eof as defined in subparagra ph (F) of paragra

ph (1) of this subsection (d) is a Class 2 felony, f or which the defendant, unless the court determines that extraor dinar y circumstanc es exist and require probation if sentenced to a term of imprisonment , shall be sentenced to: ***." Pub. Act 94--609, eff. January 1, 2006. Public Act 94--609 set

forth section 11--501(d)(1) as it read before any amendments by Public Act 94--329. In other words, Public Act 94--609 did not include subsec tion (d) (1)(G ) or (d)(1)(H) as added by Public Ac t 94--329 . These s ubsections were

absent, n ot stricke n out. Public Act 94--963, which was passed about one y ear later, amended

sections 11--501(j) and (k) as f ollows: "(j) In addition

to any other pena

lties and liabilities, a person who is found guilty of
or pleads guilty to violating

subsection (a), including any person placed on court supervision for violating subsection (a), shall be fined $500, pay able to the cir cuit cler k, who sha

ll distribute the money

as follow s: * **. *** Any money s received by

a law enforcement agency under this subsection (j) shall be used for enfo rcement and prevention of drivingNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-15- while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination ther eof, as defined by

this Section, including but notlimited to the to purc has e of

law enforcemen

t equipme

nt and commodities that will assist in the prevention

of alcohol related criminal violence throughout the State ; police officer training and education in areas related to alcohol rela ted crime, including but not limited t o DUI train ing; and police officer salaries, including but not limited to salaries for hire back funding for safety checkpoints, saturation patrols, and liquor store sting operations. Equipment and commodities
. This shall incl ude, but are is not limited to ***. Any moneys received by the Department

of State Police under

this subsection (j) shall be deposited into the State Police DUI Fund and shall be used for enforcement and prevention of driv ing while under the influence of alcohol, other drug or drugs, intoxicati ng compound or compounds or any combination thereof

, as defi ned by this Section, includi

ng but no t limited tothe to purchas e of law enforcement equipment and commodities that will assist in the prevention of alcohol related criminal violence through out the Sta

te ; police officer training and education in areas related to alcohol related crime, including but not limited to DUI training; and police officer salarie s, including

but not limite d to salar

ies for h ir e back funding for safety checkp oints, saturation patrols, and liquor store sting operations
. (k) The S ecreta

ry of State Po lice DUI

Fund is created

as a spec ial fund in

the State tr ea su ry. All moneys rece ived by the Secre tary of State Police unde

r subsecti on (j) of this Section shall be deposite d into the Se cretar y of State Polic e DUI

Fund and , subject

to appropriation, shall be used for enforcement and prevention of driving while under the influence of alco hol, other drug o r drugs , in toxicating compound or compounds or any combination thereof, as defined by this Section, including but not limited to the to purchas eNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-16- of law enforcemen

t equipme nt and commodities to assist in the prevention of alcohol related criminal violence

through out the Sta

te ; police officer

training and education

in areas related to alcohol related

crime, including but not

limited to DUI tr

aining; and polic e offic er sala ries, including but not limited to salaries for hire back fun ding for safety checkpoints, saturation patrols, and liquor store sting operations ." Pub. Act 94--963, eff. June 28, 2006. As in Dickey

and Prouty , there is no irreconcilable conflict between Public Act 94--329 and either Public Act

94--609 or Public Act 94--963. These three acts "w ere inte

nded to ma

ke separ ate and distinct changes" to the Vehicle Code and, thus, may "be g iven effect without inconsistency ." Dickey , 17 Ill. 2d at 555. Public Ac t 94--329 increa sed the pe nalties f or cert ain violations of section 11--501 by making the se offenses aggravated DUI . Public Act 94--609 had a narrower purpose and substantiv ely

changed only

one sentence in the statute to permit probation under "extraordinary circumst ances" for a vio lation of s ection 11 --501(d )(1)(F ). Public Act 94--9 63 amende d the statu te to expand the purposes for which DUI fines and fees could be used. Th ese enactmen ts affected different provisions of the statute, a nd all thre e may

be give n effec t. An irre concila

ble conflic t exists between two acts only

if they make inc onsistent c

hange s in the sta

tute "a s it th eretofor e exi sted." 5 IL CS 70/6 (West

2004). B ecause

the changes made by

Public Act

94--329, Public Act 94--609, and Pu blic A ct 94--9 63 are no t inconsist ent, all th ree ac ts must be c onstrued to give f ull effe ct to each act. See 5 IL CS 70/6 (West 2006); Ullrich , 135 Ill. 2 d at 483 (i f two ena ctments a re capa ble of being construed so that both may stand, the court should so construe them). Furthermore, a reading of Public Act 94--963 contradicts the defendants' claim that this act failed to incorp orate

the language of sub section (d)( 1)(G) "anywhere in its bo dy." In fa ct, the Pub lic Act 94--329 version of section 11--501 of the Vehicle Code is set forth, in its entirety , in Public Act 94--963. Thus, Public Act 94--963 does not conflict with, but inco rporate s, the ame ndmentsNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-17- contained in P ublic Act 94--329. However, even if Public Act 94--963 ha d not incorporated the amendme nts made by Public Act 94-- 329, as stated above, Public Act 94--9 63 does not irreco ncilably

conflic t with

Public Act 94--329, and both acts may be construed to give full effect to each. Moreover, Public Acts 94--329 and 94--609 were passed only two days apar

t, suggesting

that the drafters of Public Act 94--609 simply overlooked what had be en added by Public Act 94--329. "Such an inference is more plausible than positing that the legislators had a sudden change of hea rt butchose to express it by passive indirecti on." Prouty , slip op. at7-8. Additionally, any repeal of the changes made by

Public Act

94--329 would have been by implication, as Public Acts 94-- 609 and 94--963 did not show the Public Act 94--329 changesstricken out. For an act to repeal an earlier
one by implication, there must be " such total and manifest repugnance that the t wo cannotstand together." Dickey , 17 I ll. 2d at 555. That is not the case here. As stated, there ar e no irreconcilable conflic ts betwee

n the thre e acts. The fact that

the legisla

ture re peated p ortions of

section 1 1--501, a s it existed prior to Pub lic Act 94--329, in Public Acts 94--609 and 94--963 does not show that the legislature never

intended for sec tion 11-- 501(d)( 1)(G) to take ef fect. As stated by our supre me court : "The provisions of any statute, so far as they are the same as those of a ny prior stat

ute, must be construe d as a continuation of such prior provisions and not as a new enactmen t
. [Citation.] It is a

lso the ru le that wh en the le gislatu

re enac ts an amendatory

statute providing that a certain act shall be amended so as to rea d as repeated in the amendator y act, such portions of the old law as are repeated in the ne w a ct , e it he r l it er al ly o r s ub st an ti al ly, are to be regarded as a continuation of the old law and not the enac tment of a new law on that subject." S. Buchsbaum & Co. v. Gordon , 389 Ill. 493, 500-01 (1945).Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-18- The portions of Public Acts 94--609 and 94--963 repeating section 11--501(d) as it existed before Pu b lic Act 94--329, therefore, must be reg arded as a continuation of the old law and not the enactment

of a new law on

that subje ct. The f

act that s ubsection (d)(1) (G) doe s not appe ar in Publi c Act 94--609 i s not an ind

ication that the leg

islature inte nded to r epeal the addition of subsection (d)(1) (G) containe d in Public A ct 94--3 29. As sta ted above , "a lat

er law w hich is mer

ely a re enactment

of a former law does not repeal an inter mediate act which

has qualified or

limited the

first one, but the inte

rmediate act will b e deeme d to rema in in force and to qualify

or modify the new ac

t inthe same mann er it did th e first." Dickey , 17 I ll. 2d at 55 6. Publi c Act 94--329 was such an intermed iate act and r

emained inforce despite the later

passage of Public Acts 94--609 and 94--963. Applying the rationale in O'Casek

to the facts of the present case, we similarly conclude that neither Public Act 94--609 nor Public Act 94--963 repealed the addition of subsection (d)(1) (G) to section11--501 of the Vehicle Code. As set forth in O'Casek , the General Assembly Operations Act (25 IL CS 10/10(f) (West 2004 )), the St atute on St

atutes (5 IL CS 70/5 (West 2 004)), a nd the Illinois Houseand Sena

te Rules ( 95th I ll. Gen . Assem. H ouse R. 37( e), Sena te R. 5--1 (e); 90th Ill. Gen. Assem. House R. 37(e), Senate R. 5--1(e)) indicate tha t matter to be deleted is to be shown crossed wi th a line. H ere, Public Acts 94--609 and 94--963 did not show the Public Act 94--329 amendme nts crossed with a line. Rather, in Public Act 94--609 the Public

Act 94-- 329 amend

ments
were absen t. Alth ough Public Act 94--963 contained multiple versions of the Vehicle Code as amended by various public acts, it actually set forth a version of the Vehicle Codethat incorporated the amendments of both Public Acts 94--329 and 94--963. I n that version, the Public Act 94--329 amendme nts were not shown crossed with a line. As in O'Casek , this indicates that the legislature did not intend to repeal Public Act 94--329.Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-19- Furthermore, the leg islative h istory does not show that th e legislature intended for either Public Act 94--609 or Public Act 94--963 to repeal Public Act 94--329. Public Act 94--609 began
as Senate Bill 1495 (94th Ill. Gen. Assem., Senate B ill 1495 (2005 Sess.)). On April 15, 20 08 , Senator Kirk Dillard addressed Senate Bill 1495:

"SENATOR

DI LL ARD: *** This is an initiative of the Mothers Against Drunk Driving organization. And it flip-flops the burde n of proof

in certa inkinds of matters and puts the burden on the defendant to beg why they should ge

t probation if they killed somebody

in a drunk driving accident, and to--to have the burden on the defendant and prove to the c ourt why they shou ldn't go to jail for causing an acc ident while driving under the influence of--of alcohol." 94th Ill. Gen. Assem., Senate Procee dings, April 15, 2005, at 27 (Statements of Senator Dillard). The Senate immediately there after unanimously pa ssed Senate Bill 1495. 94th Ill. Gen. Assem., Senate Proceedings, April 15, 2005, at 28. On May 20, 2005, Represent ative C hapin Rose spoke about Senate Bill 1495 to his colleagues in the House:

"Rose: *** Senate Bill 1495 provides that if a defendant is convicted of agg ravated driving under the influence of alcohol, drugs, or intoxicating compoundsbecause his or her DUI violation- -excuse m e, violat ion was the

cause of the de ath

of one or more persons, the defendant shall b e sentenced to a term of imprisonment, unless the court determines that extraordinary

circumstances exist and require probation. I would ask for favorable adoption of Senate B ill 1495 by

this Body . Thank y

ou." 94th Ill. G en. Asse

m., House

Proceed ings, May 20, 2005, at 123 (Statements of Repr esentative Rose). The Houseof Repre sentative s passed t he bill. 94 thIll. Gen. Assem., House Procee dings, May 20, 2005, at 123.Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-20- Public Act 94-- 963 start

ed at Sena te Bill 1088 (94th Ill. Gen. Assem., Senate Bill 1088 (2006 Sess.)). On April 4, 2006, Senator Don Harmon addressed Senate B ill 1088:

"SENATOR

HARMON: *** It amends the Vehicle Code to expand the purposes for whichDUI fines and fees may be used to include not only the purchase of law enforcement equipmen t, but also e

nforce ment an d preven

tion of alc ohol and d

rug re lated cr

imes, including officer training

and staffing for

safety c heck points, saturation patrols, and liquor store sting ope

rations. " 94th Ill. Gen. A ssem., Senate Proceed ings, April 4, 2006, at 47-48 (Statements of Senator Harmon). Shortly thereafter, the Senate passed Senate B ill 1088. 94th Ill. Gen. Assem., Senate Pr oceedin gs, April4, 2006, at 49. On A pril 25, 20 06, withou

t any substantiv e discuss ion of the bill, the House of Rep res ent ati ves una ni mo usl y pas sed Sen ate Bil l 1 088 . 94 th Il l . Gen. As sem., Hou se Proce edings, April 25, 2006, at 52. As in O'Casek , the legislative history of Senate Bills 1495 and 1088 is devoid of a ny discussion of

Public Ac t 94--329 or any repeal of the amendments

that it had made

to the Veh

icle Code. The leg islative h

istory of Public Act 94--6 09 demonst rates tha t the Gene ral Asse mb ly's i ntent, when it adopted that act, was merely to limit the discretion of a trial court to impose probation where
a defendant's commission of DUI proximately caused a fa

tal accident. This is consistent with the fact that the language implementing this chang e was highlighted and the a mendment s of Public Act 94--329 were a

bsent, not crossed with a line. The legislative history of Public Act 94--963 indicate s that the General Assembly

's intent, when it adopted that act, was to broaden the scope for which DUI fines and fees could be used. This is consistent with the fact that Public Act 94--963 incor porates Public Act

94--329 and does not show those amendments crossed with a line. As the O'Casek court determined

that the use of the 1995 version of section 2--622 ingiving context to the amendmentsNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-21- of Public Act

90--579 was mere ly a

legisla tive oversight ( O'Casek , 229 I ll. 2d at 44 7), we sim ilarly conclude that the pre-Publi c Act 94- -329 lang uage u sed in gi

ving context to th e amendments of Public Act 94--609 was a legis lative oversight. Additionally, be cause Public Act 94--963 incorporated

the amen

dments of

Public Ac t 9 4--329, the legislature did not intend to repeal the amendme nts enacted by

Public Act 94--329. See Caraba llo , 231 Ill. App. 3d at 688 (in determining legislative intent as to a

particular amendment, it is proper to consider any subsequent amendments). The defend ants' relia

nce on People ex rel. Hines v. Baltimore & Ohio Southwestern R.R. Co. , 366 Ill. 318, 322 (1937), and In re J.H. , 304 I ll. App. 3d 18 8, 196 (19 99), in sup port of th eir clai

m that an irreconcilable co nflict prevented section 11--501(d)(1)(G) from taking effe ct, is unpersuasive. In Hines , the legislature passed three consec utive act s amending a s tatute that limited the rates at whichcounties

could lev

y ta xes. Each

amendat ory act set f orth the s tatute, a s amen ded, in its
en ti re ty. Hines , 366 I ll. at 321. The firs tamendment created an exception to the tax limitation for
a county blind relief fund . The second a mendment excepted taxes for a pauper relief fund, but omittedthe exception for the blind relief fund. The third amendment crea ted an exception for "mothers' pension fund[s]" but omitted the other two excep tions. Hines , 366 Ill. at 321. None of the amendatory

acts expressly repe aled any othe r act. Hines , 366 I ll. at 321. The supr eme cour t held that the amendments were irreconcilable a s to the subject matter of exception s and that , therefore, the last amendment prevailed. Hines , 366 I ll. at 322. Accord ingly , the coun

ty ta x limit applied t o levies for blind

relief a nd paupe r relief , but not tolevies for mothers' pension funds. Hines , 366 I ll. at 323. Hines is disting

uishable from the pre sent case in that, in Hines , all thre e amendments pertained to t he same portion of

the statut e and the same subj ect matte

r--exce ptions to the

county tax limitation. In the present case, Public Acts 94--329, 94--609, and 94--963 addressed differentNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-22- portions of the statute and different subject matter. Moreover , as we recently no ted, H ines was decided before the legisla

ture ena cted wha t is now section 6 of the Statute on Statutes. Prouty , slip op. at 9. To the

extent that Hines is inconsis tent with Dickey , we follow Dickey , the more recent opinion of our supreme court. Prouty , slip op. at 9. J.H. is also fa

ctu ally disti nguishable from the present case. I n J.H. , the legislature passed three public acts amending section 2--28 of the Juvenile Court Act of 1987 (705 I LCS 405/2--28 (West 2006)) during the same session. J.H. , 304 Ill. App. 3d at 195-96. The last amendmen t replaced section 2--28 with two separate provisions, one apply ing to cou n ties with populations of less than 3 million and one apply ing to counties with populations of 3 million or more. J.H. , 304 I ll. App. 3d at 196. The appellate cou rt he ld that, although the first two amendments could be read together to give fu ll effec t to each, they

could not be construed with the last amendment because they did not contain separate provisions distinguishing among counties based on populations. J.H. , 304 Ill. App. 3d at

196. L ikewise , the last amendment could not be reconc iled with th e first two amendme nts because

it essenti ally

creat ed an entirely

new statutory sche

me. In the present ca se, Public Act 94--329 amended o nly a discret e portion of the Vehicle Code and is capable of being construed with Public Acts 94--609 and 94--963. The defenda

nts also a rgue that there

are nume

rous conf licts among the seven pu blic acts passed by t he 94th General Assembly

amending the Vehicle Code, rendering impossible a cohesive reading of all seven ac ts. In addition to

Public Ac ts 94--329, 94--609, and 94-- 963, ther e were also earlier amendme

nts containe d in

Public Acts 94--110, 94--113, 94--114, and 94--116. These ea rlier acts a lso do not irreconcilably c onflict with Public Act 94--329. Public Act 94--110 amended section11--501 of the Vehicle Code to increas e the p enalties for a DU I viol ation com

mitted with
a child under

16 years old

in the veh

icle. See Pub. Act 94 --110, e ff. Janua ry 1, 2006; 94 thIll. Gen.Nos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-23- Assem., Senate Proceedings, May 17, 2005, at 55; 94th

Ill. G en. Asse

m., House

Proceed ings, April 5, 2005, at 123-24. Public Act 94--113 (House Bill 1081), whi ch re plicated Public Act 94--609 (Senate Bill 1495), limited the

discreti on of a tr

ial cour t to impose

proba tion where t he defe ndant 's commission of DUI proximately caused a fatal accident. See Pub. Act 94-- 113, eff. January 1, 2006; 94th Ill. G en. Asse

m., Senate

Proceed ings, May

11, 2005, a

t 108; 94th I

ll. Gen. A ssem., Ho

use Proceedings, March 9, 2005, at 7. Finally, Public Acts 94--114 a nd 94--116 a

mended th e Vehic le Code to set up a series of enhanced penalties for someone who is repeatedly

convicted of DUI. See Pub. Act 94 --114, e ff. Janua ry 1, 2006; 94 th Ill . Gen. As sem., Sena te Proce edings, May 11, 2005, at 108; 94th

Ill. Gen. Assem., House Procee dings, February 24, 2005, at 61; Pub. Act 94--116, eff. January 1, 2006; 94th Ill. Gen. As s em., Senate Proceedings, May 16, 2005, at 79; 94th Ill. Gen. Assem., House Pro ceeding s, April 14 , 2005, at 107. Bec ause the se previ ous acts, i n relation to Public Act 94--329, made separate and distinct chang es to the Vehicle Code, Public Act 94--329 may be given effect without being inc onsistent with any of the other a cts. Dickey , 17 Ill. 2d at 555. The defenda

nts also a rgue that the ru

le of len ity r equires that any ambigui ty in secti o n 11--501 of the Ve

hicle Code must be resolved in their favor. When construing criminal statutes, the rule of lenity require s that any ambig uity must be resolved in a manne r that favors the accused. Peoplev. Jones , 223 Ill. 2d 569, 581 (2006). However, this rule doe s notjustify the failu re to app ly
a criminal statute where the legislature clea rly intended its application. Peoplev. Hicks , 164 Ill. 2d 218, 222 (1995). Here, we have deter mined that in passing Public Ac t 94--329 the leg islature clearly intended to make a violation of section 11--501(a)(1), whil e driving without a driver's license, aggravated

DUI, a Class 4 felony . We have further determined that the l egi slature clearly did not intend for Public Act 94--609 o r 94--963 to repeal this amendment. According ly, because theNos. 2-- 07--0015 , 2--07- -0016, 2- -07--00 17 & 2-- 07--0058 cons.

-24- legislative intent here is clear, there is no justification for apply ing the rule of lenity . See Hicks , 164 Ill. 2d at 222. Fi na ll y, the defe

ndants ar gue tha t they are ent itled to monetary

credit against their respective fines for time spent in custody prior to sentenc ing. A defendant is entitled to a $5-a-day cr edit agains this fine for

each day he spent incarcerated. See 725 I LCS 5/110--14 (West 2004) . Alt hough the defenda

nts did not o

bject at t rial or r aise this issue in posttrial motions, the issue is not forfeited
. The applica

tion for c redit to w hich a de fendant

is statutor

ily entitled can be made for the f irst time
on appeal. People v. Woodard , 175 I ll. 2d 435, 4 57-58 (19 97). I n sentencing the defendants, the trial court ordered them to pay fines ranging from $400 to $600. The par ties agree that the record indicates that all of

the defe ndants spe

nt some time

in custody

, but that the recor

d is not clea

r as to how many

days eac h of the defendants spent in custody . The State concedes that the defendants are entitled to credi tfor that time and that their cases should be remanded to deter mine the amount

of that credit. We accept the State's conce ssion and remand the matter for the trial court to determine the amount of time each

of the de fendant s spent in c ustody and to grant the appropriate amount of credit against each defe

ndant's fine. See People v. Neff , 369 Ill. App. 3d 358, 366 (2006). For the fore going

reasons , the judg

ments of the circu

it court of Boone Co

unty are affirmed, and the c auses ar

e reman ded with d

irection s. Affirme d and remanded wi th direc tions. McLAREN and O' MALL EY, JJ., concur.