Friday, October 22, 2010

Restricted Drivers, Look Out: Illinois Police Have a Reasonable Suspicion to Pull You Over.

On October 21, 2010, the Illinois Supreme Court announced Illinois police can pull over drivers that are driving on a restricted drivers permit. Using Terry and its progeny, the Court reasoned that an officer has a reasonable suspicion that a driver is unlicensed when (1) the registered owner's license has been revoked and (2) the person driving the vehicle resembles the photograph of the owner. Being issued a restricted driving permit (RDP) does not negate the officer's reasonable suspicion.

Restricted driving permits are issued to “hardship” cases for under 625 ILCS 5/6-205. These licenses allow otherwise unlicensed drivers to drive for employment, emergency medical services, education, and alcohol treatment.

In People v. Close, LaSalle police pulled the defendant over for driving while license revoked. The arrest happened on a Sunday evening while the defendant was wearing a tank top, baseball cap, and sunglasses. The officer ran the defendant’s plates and found the vehicle owner’s license to be revoked. The officer’s mobile computer also indicated that the owner was issued a RDP; however, the computer did not indicate the terms of the RDP. The officer initiated a traffic stop to determine whether the driver was within the scope of his RDP. At trial, the officer indicated the day of the week and the defendant's apparel suggested that the defendant was not en route to work.

The Court was particularly swayed by the statutory construction of the RDP provision. Under 625 ILCS 5/6–303, an RDP is a statutory defense to the crime of unlicensed driving. Because the state can make a prima facie case of unlicensed driving despite the issuance of a RDP, the Court reasoned that officers have no duty to determine whether a driver is within the scope of his RDP before initiating a Terry stop.

The Court specifically rejected the Second District case, People v. Johnson, 379 Ill. App.3d 710 (2d Dist. 2008). The facts in Johnson are startlingly similar to those in Close. The officer ran the plates on a passing vehicle and discovered the owner’s license was revoked. The Johnson defendant also was issued a RDP. The officer noted that the arrest occurred on Sunday, which is not a traditional work day. Based on the officer's belief that the driver was not on his way to work, the officer conducted a traffic stop to determine the scope of the RDP. The Second District Court held that an officer did not have a reasonable suspicion.

Justice Burke issued the only dissenting opinion. She notes that the correct test to apply is the "totality of the circumstances" test, and the majority holding is out of line with this legal ruler. Under the "totality of the circumstances," an officer would have to take into account the driver's RDP and articulate facts that would suggest the driver was outside those terms.

I had previously written about this case in the December 2009 issue of Kane County Bar Briefs. I argued that the Illinois Supreme Court should have rejected both the Third and Second District holding. Instead, I suggested that the driver's appearance and day of the week were articulable facts supporting an officer’s reasonable belief that the driver was acting outside the scope of his RDP. Neither the majority nor the dissenting opinion to that view.

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