Can a prosecutor offer a DUI defendant court supervision only if the defendant drops the civil challenge to the statutory summary license suspension?

Plain-English summary

In plea negotiations on a first-time DUI defendant's case, the state's attorney offered court supervision on the DUI charge only if the defendant agreed to dismiss the civil proceeding to rescind the statutory summary suspension of his license. The inquiry asked whether this was improper as an attempt to gain an unfair advantage in the civil summary-suspension proceeding as part of the plea negotiation.

The committee reviewed the former Code rules barring a lawyer from presenting or threatening criminal charges to gain an advantage in a civil matter (Rule 7-105) and the related EC-21, which explains that using the criminal process to coerce settlement of private civil claims subverts both processes. It noted Opinion 539 (condemning a prosecutor's threats of prosecution to settle a civil matter between private parties), Opinion 87-7 (threatening disciplinary proceedings to influence a civil action), and MacDonald v. Musick (improper to condition dismissal on a defendant's admission precluding civil claims against arresting officers).

The committee distinguished those situations. The facts here involved no threatened criminal action, and the related civil summary-suspension proceeding does not involve private claims but the public interest in safe streets and highways. The committee concluded it is not an improper exercise of prosecutorial discretion to condition the plea agreement on dismissal of the summary-suspension proceeding, or alternatively to consent to rescission as part of plea negotiations. The conditional plea does not prejudice the administration of justice but promotes the public interest the legislation serves; there is no private civil claim and no unfair advantage in a dispute between private parties, so the arrangement is proper provided the defendant is adequately informed of the consequences.

Currency note

This opinion was issued in 1989, under the former Illinois Code of Professional Responsibility. The ISBA Board of Governors affirmed it in January 1991, pointing to the 1990 Illinois Rules of Professional Conduct (Rules 1.2(d) and (e) and 3.3(a)(7)). Illinois later adopted the 2010 Rules, and subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a prosecutor make a DUI plea offer contingent on dropping the license-suspension challenge?

A: The opinion concluded it is not improper, because the summary-suspension proceeding concerns the public interest in safe highways rather than a private civil claim.

Q: Isn't this like threatening criminal charges to gain a civil advantage?

A: The opinion distinguished that situation, noting there was no threatened criminal action and no private civil claim, so the bar on using criminal process to coerce private civil settlements did not apply.

Q: What condition does the opinion attach?

A: The opinion conditioned propriety on the defendant being adequately informed of the consequences of the plea agreement.

Background and rules framework

The opinion applied the former Code's bar on using or threatening criminal charges to gain an advantage in a civil matter (Rule 7-105 and EC-21), concluding it did not reach a plea condition tied to a public-interest license suspension; the Board later mapped the analysis to the 1990 Rules on a lawyer's conduct in negotiation and candor (Model Rules 1.2(d), (e), and 3.3(a)(7)).

Citations and references

Rules of Professional Conduct:

• Former Illinois Code Rules 7-101, 7-102(a)(8), 7-105 and EC-21 / 1990 Illinois Rules 1.2(d), (e), 3.3(a)(7)

Statutes:

• Ill. Rev. Stat., ch. 95 1/2, § 11-501 (DUI) and § 2-118.1 (summary suspension hearing)

Cases:

• MacDonald v. Musick, 425 F.2d 373 (9th Cir. 1970), improper to condition dismissal on waiver of civil claims against officers.

Other opinions cited:

• ISBA Opinions 539 and 87-7: threats of prosecution or discipline to influence civil matters.

See also

• ISBA Ethics Op. 91-29: Opposing Lawyer's Threat Not Reportable
• ISBA Ethics Op. 90-36: Duty to Report Threats of Criminal Prosecution
• ISBA Ethics Op. 90-29: Part-Time Prosecutor Representing Prisoners

Source

• Landing page: https://www.isba.org/ethics/opinions/8916