Two Supervisions in Twelve Months: Where This Limit Is Only Sometimes True
By Jason A. Wilkins
The phrase “two in twelve months” is a litany heard across many traffic courts. It forms the bar against which court supervision is often limited. There is, however, far more nuance to this rule than meets the eye and opportunities for leniency exist in much greater abundance. To provide context, the text of this rule can be found at 730 ILCS 5/5-6-1 which forms the basis for court supervision and its limitations. The “two in twelve months” rule can be found at paragraph (k) which states:
“The provisions of paragraph (c) shall not apply to a defendant charged with violating any provision of the Illinois Vehicle Code or a similar provision of a local ordinance that governs the movement of vehicles if, within the 12 months preceding the date of the defendant’s arrest, the defendant has been assigned court supervision on 2 occasions for a violation that governs the movement of vehicles under the Illinois Vehicle Code or a similar provision of a local ordinance. The provisions of this paragraph (k) do not apply to a defendant charged with violating Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance”1 (emphasis added)
In context, the paragraph (c) mentioned in the above citation refers to the provisions of court supervision. What follows is approximately two dozen paragraphs with exceptions to the availability for court supervision; paragraph (k) is one such exception. Perhaps the strangest component is the language that this rule only applies to offenses governing the “movement of vehicles” giving rise to a simple question – what is a moving violation?
What is a Moving Violation?
Throughout the entire traffic code, the definition of moving violation is wholly absent. In the Illinois Administrative Code however, the meaning is supplied. Under 92 Ill. Admin. Code § 1030.1, a traffic regulation governing the movement of vehicles is defined as “a violation for which points are assigned pursuant to 92 Ill. Admin. Code § 1040.20.”2 Section 1040.20 of the Illinois Administrative Code is known as the Illinois Offense Table and lists not only the point values but also the proper classifications for recording such offenses to the driving record. While not all inclusive, this list defines most traffic issues under several categories with their corresponding “Type Actions”: immediate action offenses (Type Actions 82, 83, 93, & 94), withdrawals (Type Action 89), record items (Type Action 68), non-points assigned offenses (Type Actions 95 & 96), and points assigned offenses (Type Actions 87, 97, & 99).3
It is this last category that makes up the entirety of moving violations. Any offense listed on this chart with a corresponding point value is a moving violation. Offenses which seem to be entirely equipment related, such as head, tail, and side light violations, find themselves with point values despite being under Chapter 12 of the Vehicle Code, which is dedicated to equipment. Meanwhile, Illinois Vehicle Code offenses such as driving with a suspended license,4 passing a school bus that is unloading children,5 and street racing6 fall outside of moving violations despite what the nature of their offenses imply. These fall into the category of immediate action offenses. Put simply, an offense constitutes an immediate action offense if, solely upon one conviction, it is possible that one’s driving privileges can be terminated.7 Similarly, withdrawals, another non-points assigned category, are the negation of valid driving privileges by the state as a result of sanctions taken against driving privileges.8
Next are record history items which are stated as non-points assigned matters on the Illinois Offense Table.9 The final category constitutes what may simply be referred to as non-points assigned offenses that, in conjunction with other factors, may result in sanctions against driving privileges (e.g. receiving a violation during a suspension or revocation).10
This view of what constitutes a moving violation is further supported by the language of moving-violation based suspensions or revocations found in the Illinois Vehicle Code. Under the discretionary suspensions or revocations available under 625 ILCS 5/6-206(a), there are several references to moving-violation based suspensions stemming from “traffic regulations governing the movement of vehicles.”11 This language is used for the three major moving-violation based suspensions:
When one reviews the Illinois Administrative Code for the comparable provisions that advise the Secretary of State to terminate driving privileges, we see that the only offenses that trigger suspensions or revocations are points-assigned offenses as described in the Illinois Offense Table at 92 Ill. Admin. Code § 1040.20. In the footnotes for the preceding moving-violation suspensions, the analogous sections codifying these provisions in the Illinois Vehicle Code and Illinois Administrative Code have been provided to show this connection.
Returning to our previous restriction on supervision at 730 ILCS 5/5-6-1(k), since anything classified as withdrawals, record items, immediate action, or non-points assigned inherently have no points assigned under 92 Ill. Admin. Code § 1040.20, they necessarily are not traffic regulations governing the movement of vehicles. As such, 730 ILCS 5/5-6-1(k) has no bearing on the eligibility of court supervision for offenses without point values. This has two profound consequences. First, a defendant charged with any offense without a point value can never be denied eligibility for supervision based solely on having been assigned supervision on two occasions in a prior twelve-month period. Second, a defendant is not ineligible for supervision on a moving violation unless both of the prior two occasions of court supervision in the twelve months preceding the arrest date were for points-assigned offenses.
Two in Twelve?
Upon a close reading of 730 ILCS 5/5-6-1(k), we see that the idea that two court supervisions are the limit in the “twelve months” rule arises out of an assumption in the language. The provisions of court supervision are not available if one has been assigned court supervision on two occasions within a twelve-month period. This much is true. The devil, however, is in the details as the twelve months runs one direction from a specific point. Reasonable minds have differed as to the exact way to draw such a period, but the statute prescribes very specific instructions on this question. The measurement according to the statute prohibits supervision if:
…within the 12 months preceding the date of the defendant’s arrest, the defendant has been assigned court supervision on 2 occasions…15
This restriction on supervision bars court supervision on a new offense if, within the past twelve months preceding the arrest date of the offense for which court supervision is sought, there are two occasions where court supervision was assigned. It should be noted that the language of “occasions” would treat multiple judgments of court supervision issued simultaneously as one occasion. For a hypothetical situation, let’s assume a defendant receives three speeding tickets. Two tickets have been given court supervision while one ticket is still pending. Each one would be a points-assigned moving violation so they would qualify as offenses subject to 730 ICLS 5/5-6-1(k). For these three offenses, let’s also assume the issuance and supervision dates were as follows:
Applying the rule for Ticket 1, we would have no court supervisions in the twelve months preceding the arrest date of 2-1-18. For Ticket 2, we would see one supervision on February 28, 2018 in the twelve months preceding March 1, 2018. For Ticket 3, only one court supervision has been assigned in the twelve months preceding the arrest date of April 1, 2018 as the second supervision was assigned after this ticket was issued. In this situation, a defendant is eligible for three supervisions within a twelve-month period.
One may reasonably conclude that simply being eligible for court supervision does not a good candidate make. This may very well be true. That being said, the court has broad discretion as to the duration of court supervision and can be certain that any future moving violations for many months will not be eligible for court supervision following a third court supervision. This fact, combined with the ability to revoke said court supervision for new violations potentially triggering a license suspension, may well serve as a strong deterrent against a future violation. A third supervision, rather than an excuse for future conduct, may serve to curb behavior and prevent further traffic offenses.
From the reading of 730 ILCS 5/5-6-1(k), it is clear that the intended limits of this statute only apply to offenses governing the movement of vehicles. A strange inclusion of the Driving Under the Influence (DUI) statute seems out of place. In the closing portion of paragraph (k), it states:
The provisions of this paragraph (k) do not apply to a defendant charged with violating Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance.”16 (emphasis added)
In the context of what an offense governing the movement of vehicles is, this section of the statute seems superfluous. After all, a DUI is an immediate action offense under the Illinois Offense Table and would thus not be an offense governing the movement of vehicles.17 In reviewing the language of the supervision statute at 730 ILCS 5/5-6-1(d), we see the restriction on supervision for a person facing a second DUI after a previous finding of guilt. This restriction, in part, states:
The provisions of paragraph (c) shall not apply to a defendant charged with violating Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance when the defendant has previously been…18 (emphasis added)
From all appearances, it looks as though the legislature used the bolded phrase from the previous restriction on supervision for a second DUI in the later written paragraph (k). With the implied meaning of a moving violation, one could be forgiven in believing that a DUI would constitute a moving violation under the law. Given the extreme penalties if one concluded a DUI was a moving violation, the legislature most likely copied and pasted this language from the DUI supervision restriction at paragraph (d) as the overwhelming evidence points to the interpretation of paragraph (k) and offenses governing the movement of vehicles outlined in this article. Seeing as how we currently treat immediate action offenses as subject to this rule from time to time, it is likely a court could err by refusing supervision on a DUI merely because of court supervision on two petty tickets in the past twelve months. In the absence of explicitly and superfluously stating that DUIs are exempt from this rule, it is hard to refute at least one defendant may have been denied supervision on a first time DUI based on a mistaken belief that it is a moving violation.
A review of what we call the “two in twelve months” rule provides a clearer guideline as to the eligibility of court supervision as the legislature intended. Most importantly, it empowers the court to concern itself less with the question of eligibility and more with the question of appropriateness. Some may bristle at the thought of three supervisions for moving violations within a one year period given the mental inertia produced by assumptions in the so called “two in twelve months” rule. Understandably so, the incorrect per se ineligibility based on statutory misinterpretation will necessarily cloud our judgment of what is appropriate. To this, we should look to the standards set in 730 ILCS 5/5-6-1(c)(1-3), where the court should consider court supervision if:
(1) The Offender is not likely to commit further crimes; (2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and (3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code 19
As stated previously, any third supervision will be a strong deterrent against future violations as a new citation during a third supervision will likely result in a suspension once a petition to revoke is pursued. The court, in an effort to ensure this, has discretion to enter longer supervision periods when necessary. The public is best served by avoiding the imposition of criminal records for traffic offenses and this is highlighted by the already strong tendency in many counties towards seeking court supervision wherever possible.
The best interests of justice are certainly served by offering a third supervision. Traffic courts often involve pro se defendants unaware of supervision and its limits. By handling supervision eligibility as outlined in this article, the court has the opportunity to warn a defendant that supervision is no longer available at the very moment of their second assignment of court supervision. This will not only serve to deter future violations, but it will result in a more just process for defendants who may not have counsel to warn them.
Finally, as to the question of appropriateness, this will vary from case to case. What is most important is that this analysis not be tainted by our current mistaken interpretations of what has become known colloquially as the “two in twelve months” rule. Not every defendant will be a good candidate for supervision and the past conduct of some will render a third supervision inappropriate even if legally available. That being said, the worthiness for court supervision should be determined on an individual basis rather than a cookie-cutter belief that two in one year should be the maximum; from time to time, that may mean that, in the best judgment of the court, a third court supervision may be appropriate for a situation that our past understandings determined was inappropriate based solely on an incorrect per se interpretation of the statute.
For those deemed worthy, we can only hope that additional bite of the apple is just as sweet.
1. 730 ILCS 5/5-6-1(k).
2. 92 Ill. Admin. Code § 1030.1.
3. 92 Ill. Admin § 1040.20(a)(1). Type Actions 82 is identified as immediate action elsewhere at paragraph (u).
4. 625 ILCS 5/6-303.
5. 625 ILCS 5/11-1414.
6. 625 ILCS 5/11-506(a).
7. https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_dc19.pdf Special thanks to Andrew Holton for providing this resource.
8. 92 Ill. Admin. Code § 1040.1. Special thanks to Theodore Harvatin for providing this resource.
9. 92 Ill. Admin. Code § 1040.20(t).
11. 625 ILCS 5/6-206(a).
12. 625 ILCS 5/6-206(a)(2) which corresponds with 92 Ill. Admin. Code § 1040.30.
13. 625 ILCS 5/6-206(a)(36) which corresponds with 92 Ill. Admin. Code § 1040.29.
14. 625 ILCS 5/6-206(a)(44) which corresponds with 92 Ill. Admin. Code § 1040.28.
15. 730 ILCS 5/5-6-1(k).
16. 730 ILCS 5/5-6-1(k).
17. 92 Ill. Admin. Code § 1040.20(b).
18. 730 ILCS 5/5-6-1(d).
19. 730 ILCS 5/5-6-1(c)(1-3).Jason A. Wilkins received his Bachelor of Science in Political Science from Illinois State University in 2010 and his Juris Doctor from Northern Illinois University College of Law in 2013. He has been employed for the past 4.5 years as a solo practice attorney in DuPage County who exclusively handles non-DUI traffic matters.