In 2010, a driver was convicted of driving under the
influence of alcohol and appealed, claiming her conviction was “void” because the Village prosecuted
her without the written permission of the County State’s Attorney as required by Section 16-102(c) of the Illinois Vehicle Code. That section 
provides that “The State’s Attorney of the county in
which the violation occurs shall prosecute all violations [of the Code] except when the violation
occurs within the corporate limits of a municipality, the municipal attorney may prosecute if
written permission to do so is obtained from the State’s Attorney.”

The Appellate Court upheld her conviction in Village
of Glen Ellyn v. Podkul
, rejecting the driver’s arguments. 
First, the Appellate
Court held that the driver’s claim challenging the Village’s authority to prosecute
was forfeited because the driver failed to make an objection during her trial or
post-trial motions.

Second, the Appellate Court rejected the driver’s claim that a
conviction made without statutory authority is void and can
be challenged at any time. The Appellate Court held that the trial court’s judgment would only be void if it lacked
subject matter jurisdiction over the issue or lacked personal jurisdiction over
the defendant. Here, the Appellate Court held that the conviction would only be voidable, so could only be challenged at the appropriate time and through the proper process.

Finally, the Appellate Court rejected the driver’s argument that the
conviction could be reversed under the “plain error” rule.
The Court held that the plain error rule only allows reversal if there is a structural error proven to have
caused a severe threat to the fairness and reliability of the trial but the driver failed to demonstrate any error that would rise to
the necessary level of severity to justify reversal of her conviction. Here, the driver was not prevented from mounting an adequate defense, putting on evidence, cross-examining the State’s witnesses, or
presenting arguments during her trial. Instead, she merely argues that the Village lacked the statutory authority to prosecute her – i.e., that the prosecution was brought by the wrong party, not that the proceedings
themselves were fundamentally unfair or unreliable.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink