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                                                                                                                                                                            SECOND DIVISION
                                                                                                                                                                            November 15, 2005

No. 1-04-1937

The trial judge convicted defendant, Odell Fort, ofpossession of a controlled substance and sentenced him to 30months' imprisonment. Defendant does not challenge theconviction or the sentence. He does raise issues concerningother orders that flowed from the conviction.

Defendant contends: (1) it was error to impose a $500assessment without first determining whether he had the abilityto pay it; (2) he was entitled to a credit against the assessmentbased on the days he spent in custody before sentencing; (3) thestatute mandating a $5 fee for deposit in the Spinal Cord InjuryParalysis Cure Research Trust Fund is unconstitutional; and (4)the compulsory extraction of his blood and perpetual storage ofhis DNA violate his fourth amendment right to be free fromunreasonable searches and seizures.

We agree defendant is entitled to the credit against theassessment and we agree the imposition of the $5 fee violates hisright to due process of law. We reject his other contentions.

FACTS

Since defendant does not challenge his conviction there isno need to go into facts that led to it. Suffice it to say apolice officer saw him throw six baggies into a garbage can andthe baggies were found to contain crack cocaine.

At the sentencing hearing, after reviewing the presentenceinvestigation report and hearing arguments of counsel, the trialcourt sentenced defendant to 30 months' imprisonment. The courtnoted defendant spent 37 days in custody before the conviction,but did not credit those days against the assessment.

A form in the record lists the "fines, fees, assessments,penalties, and reimbursements" imposed by the court on defendant. They total $1,224. The following boxes are marked on the form:

"Costs and Fees

Felony Complaint Filed-Clerk*** $190

Felony Complaint Conviction-

State's Attorney*** $60

Preliminary Hearing- State's

Attorney*** $20

***

State DNA ID System*** $200

Violent Crime Victim Assistance*** $20

Criminal/Traffic Conviction

Surcharge-Additional Penalty*** $4

Automation-Clerk*** $5

Document Storage-Clerk*** $5

Court Services-Sheriff*** $15

***

Controlled Substance/ Cannabis/ Hypodermic Needles Offenses

***

Assessment Controlled Substance*** $500

***

Crime Lab Drug Analysis-Northern*** $100

Trauma Fund*** $100

Trauma Fund Spinal Cord*** $5

***

TOTAL*** $1224"

DECISION

I. The Drug Assessment

Defendant was ordered to pay the $500 assessment pursuant tosection 411.2(a)(3) of the Illinois Controlled Substances Act(Act). 720 ILCS 570/411.2(a)(3) (West 2002). He makes twoclaims concerning the assessment.

First, he contends the assessment really is a fine andshould not have been imposed without a finding of his ability topay it as required by section 5-9-1(d) of the Unified Code ofCorrections (Code) (730 ILCS 5/5-9-1(d) (West 2002)). Section 5-9-1(d) provides:

"In determining the amount and method ofpayment of a fine, *** the court shallconsider:

(1) The financial resources and

future ability of the offender to

pay the fine." 730 ILCS 5/5-9-1(d)

(West 2002).

Second, he contends section 110-14 of the Code of CriminalProcedure of 1963 (Code) (725 ILCS 5/110-14 (West 2002)) entitleshim to a $185 credit against the drug assessment because of the37 days he spent in presentence incarceration. Section 110-14provides:

"(a) Any person incarcerated on a bailableoffense who does not supply bail and againstwhom a fine is levied on conviction of suchoffense shall be allowed a credit of $5 foreach day so incarcerated upon application ofthe defendant. ***" 725 ILCS 5/110-14 (West2002).

To resolve the issues raised by defendant we first mustdetermine whether the legislature intended the assessment to be afine, that is, a pecuniary punishment imposed as part of asentence, or something else, like a fee or court cost, which is acharge taxed by a court, compensatory in nature. People v.Elizalde, 344 Ill. App. 3d 678, 682, 800 N.E.2d 339 (2003);People v. Littlejohn, 338 Ill. App. 3d 281, 283, 788 N.E.2d 339(2003). If it is a fine, defendant is entitled to the $185setoff.

Contrary to the State's contention, the credit issue was notforfeited by defendant's failure to raise it at sentencing or ina post-sentencing motion. The normal rules of forfeiture do notapply to a sentence credit request. A defendant has the right toraise it for the first time on appeal. People v. Woodward, 175Ill. 2d 435, 457, 677 N.E.2d 935 (1997).

That brings us to the tricky thicket of statutoryinterpretation. First and foremost, we must ascertain and givepurpose to the legislature's intent. People v. Ward, 215 Ill. 2d317, 324, 830 N.E.2d 556 (2005). We first look to the languageof the statute we are attempting to construe. Castaneda v.Illinois Human Rights Comm'n, 132 Ill. 2d 304, 318, 547 N.E.2d437 (1989). The best indication of legislative intent is the"plain and ordinary meaning of the language used." Littlejohn,338 Ill. App. 3d at 284. We are permitted "to turn to adictionary when determining the meaning of an otherwise undefinedword or phrase." People v. Skillom, No. 1-04-0627, slip op. at12, (October 21, 2005), citing Ward, 215 Ill. 2d at 325.

There are times when courts cannot determine the meaning ofa statute by examining its plain language or when the statute iscapable of being understood by reasonably well-informed personsin two or more different senses, thus creating statutoryambiguity. People v. Purcell, 201 Ill. 2d 542, 549, 778 N.E.2d695 (2002). Where ambiguity is present, we are allowed toresolve the statute's ambiguity by considering its legislativehistory and debates, and by examining the statute's purposes andunderlying policies. Advincula v. United Blood Services, 176Ill. 2d 1, 19, 678 N.E.2d 1009 (1997).

The word that commands our attention is "assessment," asused in section 411.2. Section 411.2(a) provides: "Every personconvicted of a violation of this Act [Illinois ControlledSubstances Act], *** shall be assessed for each offense a sumfixed at: **** (4) $500 for a class 3 or class 4 felony." 720ILCS 570/411.2(a) (West 2002).

Section 411.2 makes no reference to the sentence creditprovisions of section 110-14. Nor does it contain anyrequirement that the trial judge consider a defendant's abilityto pay the assessment. It does contain provisions for defendantsto reduce or suspend payment of the assessment by enteringcommunity service (subsection (e)) or entering an approvedsubstance abuse intervention or treatment program (subsection(f)). 720 ILCS 570/411.2(e), (f) (West 2002). The assessmentscollected are used for alcohol and drug treatment and careprograms, State and Cook County.

The State, pointing to the wording and placement of section411.2, contends the assessment is something other than a fine,making incarceration credits and inquiries into ability to payinapplicable.

Several courts from other appellate districts have decidedthe credit issue. They represent a shutout against the State. No reported decision supports the State's position. We summarizethe relevant decisions:

(1) Second Appellate District: People v. Rodriguez, 276 Ill.App. 3d 33, 41, 657 N.E.2d 699 (1995) (A defendant is entitled toa $5-a-day credit for each day incarcerated on a bailable offensewhen he does not supply bail, "and this credit is applicable to astatutory drug offense assessment."); People v. Otero, 263 Ill.App. 3d 282, 288, 635 N.E.2d 1073 (1994) ($5 per day credit maybe applied against either the $2,000 statutory assessment or thestreet value fine, but not both);

(2) Third Appellate District: Littlejohn, 338 Ill. App. 3dat 284 ("Pursuant to section 110-14, the defendant should beawarded a credit of $1,360 against his drug assessment fines, hisstreet-value fines, the trauma center fine and the crime stoppersfine."); People v. Gathing, 334 Ill. App. 3d 617, 620, 778 N.E.2d215 (2002) (The mandatory drug assessment "is in the nature of afine and is properly offset by the presentence credit created bysection 110-14 of the Code."); People v. Reed, 255 Ill. App. 3d949, 951, 627 N.E.2d 729 (1994) (The $5-a-day credit for each dayincarcerated on a bailable offense when defendant did not supplybail is applicable to a street value fine "and to a statutorydrug offense assessment."); People v. Brown, 242 Ill. App. 3d465, 466, 610 N.E.2d 776 (1993) (Defendant's "$5-per-day creditfor pretrial incarceration which is allowed by section 110-14should have been used to offset his $500 assessment.");

(3) Fifth Appellate District: People v. Haycraft, 349 Ill.App. 3d 416, 430, 811 N.E.2d 747 (2004) (The $5-per-day credit"may be applied against either the statutory assessment or thestreet value fine, but not both.").

The First and Fourth appellate districts have not yet spokenon the sentence credit issue. Defendant relies primarily onGathing. The state contends Gathing and all the other casescited above were wrongly decided.

Admittedly, the cases do not contain in-depth analysis oflegislative intent. Gathing relies on two points. The first isBlack's Law Dictionary definitions of "assessment"--"[i]mpositionof something, such as a tax or fine, according to an establishedrate"--and "fine"--"[a] pecuniary criminal punishment or civilpenalty payable to the public treasury." Gathing, 334 Ill. App.3d at 620, citing Black's Law Dictionary 111 and 647 (7th ed.1999). The second point relied on in Gathing is that payment ofthe assessment is to a special treatment fund "within the StateTreasury." Gathing, 334 Ill. App. 3d at 620.

Brown supplies another reason for holding the creditapplies: "Had the legislature clearly intended to exclude section411.2 from such credits, the legislature could have specificallymade such an exclusion." Brown, 242 Ill. App. 3d at 466.

We would add that the legislature has demonstrated it knowshow to make the $5-per-day credit inapplicable to a special fund. It did so in 1985 when it amended the Violent Crime VictimsAssistance Act to provide fines imposed for certain listedoffenses are "not subjected to the provisions of section 110-14of the Code of Criminal Procedure of 1963***" (Ill. Rev. Stat.1985, ch. 70, par. 510(b)). See People v. Hare, 119 Ill. 2d 441,449-50, 519 N.E.2d 879 (1988).

We decline the State's invitation to reject the consistentline of appellate decisions that allow the sentence creditagainst the drug assessment.

We are instructed:

"one district of the State appellate court isnot always bound to follow the decisions ofother districts, although there may becompelling reasons to do so when dealing withsimilar facts or circumstances. [Citation.] Otherwise, such decisions have onlypersuasive value for the appellate court." In re May 1991 Will County Grand Jury, 152Ill. 2d 381, 398, 604 N.E.2d 929 (1992).

We are persuaded.

A strong case can be made that section 411.2 is ambiguous onthe question of fine versus fee. It is in a section separatefrom the fines provision for convictions under the ControlledSubstances Act (720 ILCS 570/411.1 (West 2002)). Section 411.2does not use the word "fine," and subsection (b) reads: "Theassessment under this section is in addition to and not in lieuof any fines, restitution costs, forfeitures or other assessmentsauthorized or required by law." (Emphasis added.) 720 ILCS570/411.2(b) (West 2002). Still, in subsection (f) the statuterefers to the assessment as a "penalty" ("The court shall notreduce the penalty under this subsection unless ***") andconcludes: "Nothing in this section shall be deemed to affect orsuspend any other fines, restitution costs, forfeitures orassessments imposed under this or any other Act." (Emphasisadded.) 720 ILCS 570/411.2(f) (West 2002).

Assuming the existence of ambiguity, we believe there aretwo sound reasons for adopting the results reached by theappellate court decisions.

First, we take note of the Senate debate on July 18, 1991. Referring to the proposed section 411.2, Senator Cullerton asked:"I'm just curious, though, if--does this reallocate money whichis now being sent somewhere, or does it purport to increase thefines for people who are charged with drug offenses?" (Emphasisadded.) Senator Barkhausen, a sponsor of the bill, answered:

"Yes, it's an increase. It's a new fine;although, we had amended the bill a secondtime through, and I believe the provisionsare here again--I was just looking for them--to give the court some discretion to requirecommunity service work for those who can'tpay fines. But this is new money. It's nota reallocation of any old money." (Emphasisadded.) 87th Gen. Assem., SenateProceedings, July 18, 1991, at 186-87.

When we construe a statute, "it is instructive to considerrelevant statements by legislatures concerning the nature andeffect of the proposed law." Sulser v. Country Mutual InsuranceCo., 147 Ill. 2d 548, 555, 591 N.E.2d 427 (1992). Nothing in theSenate debates indicates an intent that the drug assessment wasto be anything other than a species of fine.

The second reason for following the appellate decisions hasto do with a well-established rule of legislative construction. Our supreme court has held: "*** when the legislature amends astatute, but leaves unchanged portions which have been judiciallyconstrued, the unchanged position will retain the constructiongiven prior to the amendment." People v. Agnew, 105 Ill. 2d 275,280, 473 N.E.2d 1319 (1985).

Section 411.2 was amended in 1994, 1995, and 1997. None ofthe amendments referred to the credit against assessment issue. Brown was decided in 1993, Reed in 1994, Otero in 1994, andRodriguez in 1995. The legislature is presumed to know howcourts have interpreted a statute and may amend the statute if itintended a different construction. Illinois Department of Laborv. Tri State Tours, Inc., 342 Ill. App. 3d 842, 847, 795 N.E.2d990 (2003). We assume the legislature saw no need to change theresults reached in the appellate decisions.

We conclude defendant was entitled to a credit of $185against the $500 assessment. Although we agree the assessment isa kind of fine, we see no need to remand for an inquiry intodefendant's ability to pay it. The assessment is mandatory. Thelegislature provided for ways to eliminate or reduce it. Defendants convicted of drug offenses are given the opportunityto improve their lives and the lives of others (subsections (e)and (f)). That is the statutory plan set out in section 411.2and it tells us why the legislature placed it in its own section,separate from traditional fines.

II. Spinal Cord Research Fund Fee

Defendant contends his due process rights were violated bythe trial court's imposition of a $5 fee for deposit into theSpinal Cord Injury Paralysis Cure Research Trust Fund (SpinalCord Fund). 730 ILCS 5/5-9-1.1(c) (West 2002). Defendantcontends collecting a $5 Spinal Cord Fund fee from a personconvicted of a drug-related offense is an arbitrary andunreasonable exercise of the State's police power. See People v.Wick, 107 Ill. 2d 62, 63, 481 N.E.2d 676 (1985). He says thestatute bears no rational relationship to the public interestintended to be protected.

All statutes are presumed to be constitutional. People v.Wilson, 214 Ill. 2d 394, 398-99, 827 N.E.2d 416 (2005). Theparty challenging the statute's validity bears the burden ofclearly demonstrating a constitutional violation. Wilson, 214Ill. 2d at 399. If reasonably possible, a court should construe a statute so as to confirm its constitutionality and validity. Wilson, 214 Ill. 2d at 399. Whether a statute is constitutionalis a question of law that we review de novo. People v. Malchow,193 Ill. 2d 413, 418, 739 N.E.2d 433 (2000). Where the statuteunder consideration does not affect a fundamental constitutionalright, we ask whether the statute "bear[s] a reasonablerelationship to the public interest intended to be protected,"and whether "the means adopted [are] a reasonable method ofaccomplishing the desired objective." People v. Lindner, 127Ill. 2d 174, 179-80, 535 N.E.2d 829 (1989).

Defendant compares the statute in this case to that inLindner, where the defendant challenged two sections of theIllinois Vehicle Code that provided for mandatory revocation ofthe offender's driver's license on conviction of certain sexoffenses. Lindner, 127 Ill. 2d at 176, citing Ill. Rev. Stat.1987, ch. 95 1/2, pars. 6-204(a)(1), 6-205(b)(2). The court heldthe penalty of license revocation bore no relationship to theoffense, whether the purpose of the statute was the safeoperation of motor vehicles, or the punishment or deterrence ofthe defendants. Lindner, 127 Ill. 2d at 181. There was norational basis for choosing to punish some particular offensesnot involving a vehicle with revocation while excluding others. Lindner, 127 Ill. 2d at 185. See also People v. Lawrence, 206Ill. App. 3d 622, 624, 565 N.E.2d 322 (1990) (imposing asuspension of a driver's license as a penalty for unlawfuldelivery of a controlled substance and not other crimes thatcould be furthered by driving was an arbitrary decision of thelegislature.)

In response, the State contends the legislature reasonablydetermined that drug offenders cause traffic accident injuries tomembers of the community and should be made to contribute to theresearch and care of those injured. The State relies on Arangoldv. Zehnder, 204 Ill. 2d 142, 148, 787 N.E.2d 786 (2003), wherethe court held a tax on tobacco products was reasonably relatedto the State's interest in preserving the health of its citizensby providing for long-term medical care. The State contends the$5 fee is reasonably related to the State's interest in fundingspinal cord injury research because drug offenders are likely todrive under the influence of drugs and cause spinal cordinjuries. The State attaches statistics to its brief showing thenumber of spinal cord injuries caused by drunk drivers. We donot consider these statistics as they were not introduced intoevidence in the trial court. See People v. Woolley, 178 Ill. 2d175, 204, 687 N.E.2d 979 (1997) (An argument relying on mattersoutside the record may not be considered on appeal.)

Recently, another division of this court examined thestatute at issue and found it to be unconstitutional. People v.Rodriguez, No. 1-04-3546 (November 3, 2005). The court said:

"[w]hile driving under the influence of acontrolled substance arguably bears arational relationship to spinal cordresearch, we cannot say that the simplepossession of a controlled substance, anoffense that does not involve or require theuse of a motor vehicle, is reasonably relatedto spinal cord research. Furthermore, theparties have not called to our attention anyother statutes that impose a fee earmarkedfor the Spinal Cord Injury Research Fund upondefendants whose crimes did not involve motorvehicles. Accordingly, we find therelationship between possession of acontrolled substance and the Spinal CordInjury Research Fund simply too attenuated tosurvive defendant's due process challenge."Rodriguez, No. 1-04-3546, slip op. at 15.

Given the State's virtually identical argument forconstitutionality in this case, we see no reason to depart fromthe holding in Rodriquez. We find the imposition of the $5 feeviolated defendant's substantive due process rights. We reversethe order that defendant pay a $5 fee to the Spinal Cord InjuryParalysis Cure Research Trust Fund.

III. DNA

Defendant contends the compulsory extraction and perpetualstorage of his DNA violate his fourth amendment right to be freefrom unreasonable searches and seizures under the federal andstate constitutions. U.S. Const., amend. IV; Ill. Const. 1970,art. I,