In People v. Rizzo, (Cook County Case No. 37997158) defendant was charged with speeding 40 or more mph over the speed limit (625 ILCS 5/11-601.5(b)2). In his motion, he argued that the aggravated speeding statute is unconstitutional as violating Due Process and Equal Protection, and that preclusion of court supervision on the charge pursuant to 730 ILCS 5/5-6-1(p) violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art I, Sec. 11).

In the Court's Memorandum Decision and Order, Judge Gubin rejected the Defendant’s first argument. She found that, given the “serious problems that individuals operating a vehicle at excessive speed can cause,” Illinois had a legitimate interest in enacting legislation designating speeding more than 25 mph over the limit as a Class B misdemeanor (625 ILCS 5/11-601.5(a)), and 35 mph and more over as a Class A (625 ILCS 5/11-601.5(b)).

Judge Gubin went on to address the Defendant’s argument that aggravated speeding is identical to reckless driving (625 ILCS 5/11-503), and, because reckless driving is eligible for court supervision and aggravated speeding is not, the result is a violation of the proportionate penalties clause: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art I, Sec. 11).” Judge Gubin rejected that argument, as a charge of reckless driving has an element of willful and wanton disregard for the safety of persons and property, while aggravated speeding does not contain such an element, thus the charges are not identical.

The Judge goes on, however, to declare the prohibition on court supervision for aggravated speeding an unconstitutional violation of the proportionate penalties clause because it is cruel and degrading. She lists the charges for which court supervision is unavailable, noting that many of them involve bodily injury. She goes on to observe that offenses for which court supervision is available include driving while suspended or revoked, driving under the influence, and theft.

Judge Gubin concludes that mandating a misdemeanor conviction on a first offense, and not allowing a judge to consider mitigating factors, resulting in a non-expungable, permanent (barring a pardon) criminal conviction, with ongoing ramifications in many areas of a person’s life, is cruel and degrading, thus unconstitutional. ■