## Illinois Official Reports

Appellate Court

People v. Rennie , 2014 IL App (3d) 130014

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appe llee, v. KRYSTIN N. RENNIE, Defendant-Appellant.

District & No. Third District

Docket No. 3-13-0014

Filed May 23, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) Defendant’s conviction for aggravated driving while under the influence of cannabis was upheld over her contentio ns that cannabis was unconstitutionally included in the DUI statute, that her sentence to concurrent terms of two and six years was an abuse of discretion, and that “extraordinary circumstances” existed requirin g probation, since curbing the incidence of drugged driving is a prope r exercise of the state’s police power that does not violate due proc ess or equal protection, driving under the influence of cannabis is a problem in society, defendant’s conduct killed one person and seriously injured another, and the trial court did not err in finding that there were no “extraordinary circumstances” requiring probation.

Decision Under

Review Appeal from the Circuit Court of Tazewell County, N o. 11-CF-227; the Hon. Lisa Y. Wilson, Judge, presiding.

Judgment Affirmed.- 2 -

Counsel on
Appeal Maureen Williams (argued), of Peoria, for appellant

.

Stewart Umholtz, State’s Attorney, of Pekin (Gary F . Gnidovec (argued), of State’s Attorneys Appellate Prosecutor ’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opi nion. Justice Schmidt specially concurred, with opinion.

OPINION

¶ 1 Defendant, Krystin Rennie was convicted of two cou nts of aggravated driving under the

influence (DUI) and sentenced to concurrent terms o f six and two years in prison. She appeals, arguing that the DUI statute is unconstitutional an d that her sentence is excessive. We affirm.
¶ 2 On June 26, 2010, defendant Krystin Rennie was 16 years old. While driving her vehicle at

night for the first time, she crossed the center li ne and drove into oncoming traffic. She struck a motorcycle, injuring the driver, Dale King, and kil ling his wife, Angela. Immediately after the accident, defendant was taken to the police station , where she agreed to submit to a blood test.

The blood test revealed that defendant had cannabis in her system. In an interview with police, defendant admitted that she had smoked marijuana th roughout the day on June 26, 2010, stopping shortly before the accident.
¶ 3 Defendant was charged by indictment with six offen ses. Count I alleged that defendant

committed aggravated DUI by driving under the influ ence of cannabis and being involved in a

motor vehicle accident that resulted in the death o f Angela King (625 ILCS 5/11-501(d)(1)(F) (West 2010)). Count II alleged that defendant commi tted aggravated DUI by driving under the influence of cannabis and becoming involved in a mo tor vehicle accident that resulted in great bodily injury to Dale King (625 ILCS 5/11-501(d)(1) (C) (West 2010)). Count III alleged that defendant committed the offense of DUI by operating a vehicle with cannabis in her breath, blood or urine (625 ILCS 5/11-501(a)(6) (West 2010) ). Count IV alleged a graduated driver’s license violation for driving too late at night (62 5 ILCS 5/6-110(a-1) (West 2010)). Count V alleged improper lane usage (625 ILCS 5/11-709(a) ( West 2010)). Count VI alleged that defendant operated a vehicle without carrying a val id driver’s license (625 ILCS 5/6-101 (West 2010)).
¶ 4 Defendant pled guilty to counts I through V of the indictment. At defendant’s sentencing

hearing, several witnesses testified, including Dal e King, who talked about how much he- 3 -

missed his wife and about his debilitating injuries , including the loss of one leg and the loss of

use of one arm.
¶ 5 Following the testimony at the sentencing hearing , the trial court stated that it considered

both mitigating and aggravating factors. In mitigat ion, the trial court found that defendant had no history of prior delinquency, that defendant’s c riminal conduct was a result of circumstances not likely to recur, and that the cha racter and attitude of defendant indicate that she is unlikely to commit another crime. In aggrava tion, the court found that defendant’s

conduct caused or threatened serious harm and that a prison sentence was necessary to deter others from committing the same crime. The court ex plained that Mr. King “is suffering” and

“will continue to suffer.” The court did not find t hat “extraordinary circumstances” existed, requiring probation instead of imprisonment. The tr ial court sentenced defendant to concurrent terms of six years’ imprisonment on count I and two years’ imprisonment on count II.

¶ 6 I
¶ 7 A
¶ 8 Defendant argues that her equal protection and due process rights were violated because

there is no rational basis for marijuana to be incl uded in the list of unlawful substances in the

DUI statute.
¶ 9 The DUI statute states that a person is guilty of DUI if he drives or is in physical custody of

a vehicle while “there is any amount of a drug, sub stance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intox icating Compounds Act, or methamphetamine as listed in the Methamphetamine Co ntrol and Community Protection Act.” 625 ILCS 5/11-501(a)(6) (West 2010). A DUI is eleva ted to an aggravated DUI if the person under the influence of alcohol, other drugs, or int oxicating compounds is involved in a motor vehicle accident that results in great bodily harm or permanent disability or disfigurement to another, or death of another person. 625 ILCS 5/11- 501(d)(1)(C), (F) (West 2010).
¶ 10 “Statutes are presumed constitutional.” People v. Fate , 159 Ill. 2d 267, 271 (1994). The

burden of rebutting that presumption is on the part y challenging the validity of the statute to clearly demonstrate a constitutional violation. People v. Coleman , 409 Ill. App. 3d 869, 877 (2011). A court, whenever reasonably possible, must construe a statute to uphold its constitutionality. Id

. ¶ 11 A statute does not run afoul of due process if it constitutes a proper exercise of police

power. Se e People v. Avery , 277 Ill. App. 3d 824, 831 (1995). “The test for d etermining whether a statute constitutes a proper exercise of the police power is whether the legislation bears a rational relationship to the interests soug ht to be protected, and whether the means adopted constitutes a reasonable method by which to accomplish the objective

. ” Fate , 159 Ill.

2d at 271.
¶ 12 Under the equal protection clause, a statute that does not affect a fundamental right or

involve a suspect or quasi-suspect classification w ill be reviewed under the rational basis test.- 4 -

See People v. Mobley , 383 Ill. App. 3d 89, 93 (2008). A statute will pa ss muster if “the means the statute employs to achieve its purpose are rati onally related to that purpose.” Wauconda Fire Protection District v. Stonewall Orchards, LLP , 214 Ill. 2d 417, 434 (2005).
¶ 13 The State first argues that defendant has waived h er right to challenge the constitutionality

of the aggravated DUI statute by pleading guilty to aggravated DUI. In People v. Winningham

, 391 Ill. App. 3d 476, 480 (2009), the Fourth Distri ct addressed the constitutionality of this statute on appeal, following a defendant’s guilty p lea, explaining, “the constitutionality of a criminal statute can generally be raised at any tim e.” We will examine the constitutionality of the aggravated DUI statute despite defendant’s guil ty plea.

¶ 14 1
¶ 15 Our supreme court has ruled that the DUI statute, which is “intended to keep drug-impaired

drivers off of the road,” does not constitute “a vi olation of due process of law.” Fate , 159 Ill. 2d at 269. The court stated that the DUI statute, whic h criminalizes “the act of driving a motor vehicle while there is any amount of a drug, substa nce or compound in such person’s blood or urine resulting from the unlawful use of said drug, substance or compound is a proper exercise of the State’s police power in curbing the incidenc e of drugged driving.” Id . The court said:
“The statute in question creates an absolute bar a gainst driving a motor vehicle following the illegal ingestion of any cannabis or controlled substance. This is without regard to physical impairment. Given the vast numbe r of contraband drugs, the difficulties in measuring the concentration of thes e drugs with precision from blood and urine samples and, finally, the variation in im pairment from drug to drug and from person to person, we believe that the statute const itutes a reasonable exercise of the police power of the State in the interest of safe s treets and highways.” Id . at 271.

¶ 16 2
¶ 17 In examining the constitutionality of the DUI stat ute in People v. Gassman , 251 Ill. App.

3d 681, 692-93 (1993), the court stated that since the statute “burdens no fundamental right and implicates no suspect classification,” it does not violate equal protection or due process rights as long as it bears a rational relation to a legiti mate state interest. Finding that the state “has a legitimate interest in protecting the public from d rivers whose driving ability may be impaired by the consumption of controlled substances” and th at the statute bears a rational relation to that interest, the court ruled that the DUI statute does not violate the equal protection or due process clause. Id . at 692-93.
¶ 18 The legislative history of the DUI statute reveals that it was enacted “to protect the public

against the danger of those who drive while under t he influence of cannabis or other illegal drugs.” Id . at 691. This is a legitimate state interest. Id . at 693. The DUI statute, which penalizes drivers who deliberately ingest illegal d rugs, is a reasonable way to accomplish that purpose. See id . at 692-93. Thus, the DUI statute does not violate due process or equal protection.- 5 - ¶ 19 B
¶ 20 Nevertheless, defendant argues that the DUI statut e violates the equal protection and due

process clauses of the constitution because it trea ts a driver under the influence of marijuana

the same as a driver under the influence of more “s erious” drugs. In support of her position, she relies on the supreme court’s decision of People v. McCabe , 49 Ill. 2d 338 (1971). In McCabe

, the court held that the inclusion of marijuana in t he Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, ¶ 22-1 et seq .) (which included drugs such as morphine, heroin a nd cocaine), rather than the Drug Abuse Control Act (Ill. Rev. S tat. 1969, ch. 38, ¶ 801 et seq .) (which included drugs such as psilocybin, peyote, mescalin e, LSD, hashish, and methamphetamine), was a violation of the equal protection clause. McCabe , 49 Ill. 2d at 351. The court explained that the physical symptoms and reactions of marijua na use include “the inability to coordinate voluntary muscular movements,” “a euphoric state of altered consciousness,” disturbed spatial conception, confusion, disorientation, “[v]ivid hal lucinations,” and “temporary psychotic episodes.” Id . at 344. The court concluded that based on its che mical properties and effects on the user, “marijuana more closely resembles drugs p laced in the Drug Abuse Control Act.”

Id . at 349. Since marijuana was closer in character t o the substances contained in the Drug Abuse Control Act and “dissimilar from drugs under the Narcotic Drug Act,” the supreme court ruled that the inclusion of marijuana in the Narcotic Drug Act was “arbitrary” and “offends the equal-protection clause of the United States [C]onstitution.” Id . at 349-50.
¶ 21 Unlike the statute at issue in McCabe , which grouped marijuana only with “hard drugs”

like heroin and cocaine, the DUI statute groups mar ijuana with all other drugs and intoxicating compounds. See id . at 347; 625 ILCS 5/11-501(a)(6) (West 2010). Beca use the DUI statute treats all individuals who ingest illegal substance s the same and bears a rational relationship to the state’s legitimate interest “in protecting the public from drivers whose driving ability may be impaired by the consumption of controlled substa nces,” it is a proper exercise of the state’s police power to keep the streets and highways safe. Gassman , 251 Ill. App. 3d at 693; see Fate

, 159 Ill. 2d at 271. Thus, it does not violate the e qual protection or due process clauses. See

Fate , 159 Ill. 2d at 270-71; Gassman , 251 Ill. App. 3d at 692-93.

¶ 22 C
¶ 23 Finally, defendant argues that “[t]he push to lega lize marijuana” supports the conclusion

that marijuana should not be included in the DUI st atute. We disagree for several reasons. First, despite the movement to legalize marijuana, possession of marijuana is illegal in the state of Illinois. 720 ILCS 550/4 (West 2012). In the sta tes that have legalized the use of marijuana, it is still illegal to drive under the influence of marijuana. See Colo. Rev. Stat. § 42-4-1301(1)(a) (2013); Wash. Rev. Code § 46.61.5 02(1)(b)-(d) (2012). Physical reactions to marijuana may include “the inability to coordina te voluntary muscular movements,” “a euphoric state of altered consciousness,” disturbed spatial conception, confusion, disorientation, “[v]ivid hallucinations,” and “temp orary psychotic episodes.” McCabe , 49 Ill. 2d at 344. Someone experiencing such symptoms surel y would not be able to drive safely. Individuals who deliberately drive under the influe nce of marijuana and other drugs present “a- 6 -

severe problem to society.” Gassman , 251 Ill. App. 3d at 693. The penalties prescribed by the DUI statute are appropriate.

¶ 24 II
¶ 25 A
¶ 26 Defendant also argues that the trial court abused its discretion in sentencing her to

concurrent terms of six and two years of imprisonme nt for two counts of aggravated DUI.
¶ 27 “[T]he range of sentences permissible for a partic ular offense is set by statute.” People v.

Fern , 189 Ill. 2d 48, 55 (1999). “Within that statutory range, the trial court is charged with fashioning a sentence based upon the particular cir cumstances of the individual case, including

the nature of the offense and the character of the defendant.” Id . “The sentencing judge is to consider ‘all matters reflecting upon the defendant ’s personality, propensities, purposes, tendencies, and indeed every aspect of his life rel evant to the sentencing proceeding.’ ” Id

. (quoting People v. Barrow , 133 Ill. 2d 226, 281 (1989)).
¶ 28 “A sentence within statutory limits will not be de emed excessive unless it is greatly at

variance with the spirit and purpose of the law or manifestly disproportionate to the nature of

the offense.” Id . at 54. A reviewing court must afford great defere nce to the trial court’s judgment regarding sentencing because that court, h aving observed the defendant and the proceedings, is in a far better position to conside r such factors as the defendant’s credibility, demeanor, moral character, mentality, social enviro nment, and habits. People v. Romero , 387 Ill. App. 3d 954, 978 (2008). In considering the pr opriety of a sentence, the reviewing court must not substitute its judgment for that of the tr ial court and may not reduce a defendant’s

sentence unless it constitutes an abuse of the tria l court’s discretion. Id

. ¶ 29 In sentencing a defendant, the trial judge may not consider factors implicit in the underlying offense. People v. Brewer , 2013 IL App (1st) 072821, ¶ 55. However, a judge may consider the nature and circumstances of the offens e, including the nature and extent of each element of the offense committed by the defendant. Id . The degree of harm to a victim may be considered as an aggravating factor even in cases w here serious bodily harm is implicit in the

offense. People v. Solano , 221 Ill. App. 3d 272, 274 (1991).
¶ 30 The sentence for a defendant convicted of aggravat ed driving while under the influence of

drugs resulting in “great bodily harm or permanent disability or disfigurement to another” is 1 to 12 years’ imprisonment. 625 ILCS 5/11-501(d)(1)( C), (2)(F) (West 2010). The sentence for a defendant convicted of aggravated DUI resulting i n the death of one person is 3 to 12 years in prison “unless the court determines that extraordin ary circumstances exist and require probation.” 625 ILCS 5/11-501(d)(2)(G) (West 2010). The plain language of the statute creates the presumption that a defendant shall serv e a prison sentence. People v. Hambrick

, 2012 IL App (3d) 110113, ¶ 21. A trial court may ov erride the presumption if it finds, in its discretion, that “ ‘extraordinary circumstances’ ” exist, requiring probation. Id

. ¶ 31 “Extraordinary” circumstances are those that are “ not ordinary, ‘highly unusual,’ and ‘not

commonly associated with a particular thing or even t.’ ” People v. Vasquez , 2012 IL App (2d) 101132, ¶ 70 (quoting Black’s Law Dictionary 260 (8 th ed. 2004)). “[T]he existence of- 7 -

extraordinary circumstances is rare.” People v. Ikerman , 2012 IL App (5th) 110299, ¶ 59; see

also Hambrick , 2012 IL App (3d) 110113, ¶ 23 (a court should fin d extraordinary circumstances “only in limited circumstances”). The presence of mitigating factors does not equate to “extraordinary circumstances.” Vasquez , 2012 IL App (2d) 101132, ¶ 70.
¶ 32 In this case, the trial court stated that an aggra vating factor was that “defendant’s conduct

caused or threatened serious harm.” The court then discussed how Mr. King has “suffered” and

“will continue to suffer.” The trial court’s consid eration of this factor was not an abuse of discretion. Although “serious harm” is implicit in aggravated DUI with great bodily harm, it was not improper for the court to consider the degr ee of harm suffered by one of defendant’s

victims. See Solano , 221 Ill. App. 3d at 274. Defendant’s conduct seri ously injured one person

and killed another. The trial court’s sentence of c oncurrent terms of six and two years’ imprisonment was not an abuse of discretion. See People v. Merrick , 2012 IL App (3d) 100551, ¶¶ 30-36 (trial court did not abuse its dis cretion by imposing eight-year term of imprisonment for defendant convicted of aggravated DUI that resulted in death).

¶ 33 B
¶ 34 Defendant argues that “extraordinary circumstances ” exist requiring probation, rather than

imprisonment. She says that she was a young and ine xperienced driver, driving for the first time at night, on a “rough and bumpy” road. We find no error in the trial court’s finding that “extraordinary circumstances” were lacking in this case. Although there were mitigating circumstances, such as defendant’s young age, lack of prior criminal history, and admission of guilt, these circumstances are not “extraordinary” requiring that defendant receive probation

instead of incarceration. See Vasquez , 2012 IL App (2d) 101132, ¶ 69 (defendant was 23 y ears old with no meaningful criminal history); People v. Winningham , 391 Ill. App. 3d 476, 485 (2009) (defendant had no criminal history and made an open guilty plea). Defendant made a bad choice by smoking marijuana and driving. That c hoice resulted in the death of one person and the disability of another. The trial court’s se ntence of concurrent terms of six and two years of imprisonment was not an abuse of discretion.
¶ 35 The judgment of the circuit court of Tazewell Coun ty is affirmed.

¶ 36 Affirmed.

¶ 37 JUSTICE SCHMIDT, specially concurring.
¶ 38 I concur in the majority’s opinion, but write sepa rately to point out the obvious.

Defendant’s argument that the push to legalize mari juana supports the conclusion that marijuana should not be included in the DUI statute is a non sequitur . The DUI statute criminalizes driving under the influence of many le gal substances, including alcohol and prescription medications.