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People v. Brener6/1/2005
oided a harsher punishment by properly exercising that constitutional right. To allow the opposite result would be to cure the injustice of the State's failure to adequately represent the interests of its citizens, by inflicting the much greater injustice of stripping a defendant of a constitutional right.
Moreover, that a defendant can avoid a harsher punishment is a basic, common, and acceptable consequence of the prohibition against double jeopardy. Indeed, under the Blockburger test, once we determine that both charges arose from a single physical act, we determine whether the previously prosecuted charge is a lesser-included offense of the greater offense, and, if so, we prohibit the prosecution of the greater offense. Sienkiewicz, 208 Ill. 2d at 6. One charge is not a lesser-included charge of another only if each charge requires proof of a fact not required by the other. Sienkiewicz, 208 Ill. 2d at 6. In this case, the charge of driving under the influence is a lesser-included offense of aggravated driving under the influence, because the only difference of proof between the two is that the latter requires proof of great bodily harm to another. Therefore, defendant may not be prosecuted for both crimes.
III. CONCLUSION
We hold that the charges in this case arose from a single physical act and that the previously prosecuted charge is a lesser-included offense of the subsequently prosecuted charge. Accordingly, we affirm the decision of the circuit court of Jo Daviess County.
Affirmed.
CALLUM and GILLERAN JOHNSON, JJ., concur.
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