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Appellate Court of Illinois, First District, Fourth Division
April 11, 2013, Decided
[*P1] Held: Defendant should have been convicted of committing the Class A misdemeanor offense of driving while under the influence of alcohol, and not a Class 4 felony. Defendant's felony conviction is reduced to a Class A misdemeanor, his one-year prison term is vacated, and the cause is remanded for a new sentencing hearing.
[*P2] In a bench trial, defendant Pablo Morales was convicted of eight counts of aggravated driving under the influence of alcohol and sentenced to one year in prison for one of those counts, with the other counts merged into that one. On appeal he contends that his conviction should be reduced to a misdemeanor and the cause remanded for a new sentencing hearing because the State failed to prove any of the aggravating elements which would enhance his conviction to a felony. The State only contends that it proved the aggravating element for counts five [**2] and six, and that aggravating element was that defendant did not have a driver's license when he committed a DUI. The State also contends that the cause should be remanded for the assessment of mandatory costs and fees, which the trial court failed to impose.
[*P3] Defendant was charged with eight counts of aggravated driving while under the influence of alcohol (DUI), all based upon the same incident. 625 ILCS 5/11-501(d)(1) (West 2010). The elements which enhanced these offenses from a Class A misdemeanor to a Class 4 felony were that defendant had committed the DUI: while his driving privileges were either revoked (counts one and two) (625 ILCS 5/11-501(d)(1)(G) (West 2010)) or suspended (counts three and four) (625 ILCS 5/11-501(d)(1)(G) (West 2010)); while he did not have a driver's license 1 (counts 5 and 6) (625 ILCS 5/11-501(d)(1)(H) (West 2010)); or while he knew or should have known that the vehicle he was driving was not covered by a liability insurance policy (counts 7 and 8) (625 ILCS 5/11-501(d)(1)(I) (West 2010)). Defendant was convicted on all eight counts, but the court merged counts two through eight into count one and sentenced defendant to one year in prison.
[*P4] At trial, the State presented the following evidence. Chicago police officer Jeff Muehlfelder testified that at about 12:15 a.m. on January 12, 2011, he was on patrol in his squad car with his partner in the vicinity of 4175 West Fullerton in Chicago. Another motorist alerted Officer Muehlfelder that a person in a car driving behind him was "driving drunk." In his rear view mirror, Officer Muehlfelder saw that a car with one headlight out was approaching him. The car passed the officers and then went through a red light. They followed the vehicle for two blocks and saw that it was swerving in and out of its lane. The officers stopped the other car, which was driven by defendant. Officer Muehlfelder knocked on the driver's side window to get defendant to open the window, but defendant did not do so. He then opened defendant's door and instructed him to get out. He noticed that defendant's eyes were bloodshot and he had a strong odor of alcohol. Officer Muehlfelder testified that [**4] when he asked defendant for "ID and insurance," defendant did not produce any, but he also testified that he could not understand much of what defendant was saying, which was apparently in Spanish, because he did not speak Spanish. Another squad car pulled up with Officer Ortiz, who did speak Spanish and who translated for him. Officer Muehlfelder testified that defendant said he did not have an "ID" or "insurance," but this testimony was stricken on the defense's motion.
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2013 IL App (1st) 112212-U *; 2013 Ill. App. Unpub. LEXIS 747 **; 2013 WL 1501881
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PABLO MORALES, Defendant-Appellant.
Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).
Prior History: [**1] Appeal from the Circuit Court of Cook County. No. 11 CR 2002. Honorable James B. Linn, Judge Presiding.
Disposition: Affirmed as modified; sentence vacated and cause remanded for a new sentencing hearing.
counts, alcohol, misdemeanor, aggravating, driving, driver's license, convicted, beyond a reasonable doubt, fail to prove, breathalyzer, contends, felony, costs, sentencing hearing