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12 September 2000
                                                            NO. 4-99-0992

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

___________________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:

Following a bench trial, the circuit court of ChampaignCounty found defendant Lewis O'Brien guilty of driving an uninsuredvehicle under section 3-707 of the Illinois Vehicle Code (Code) (625 ILCS 5/3-707 (West 1998)). The trial court imposed a fine of$501 plus court costs against defendant. The trial court subsequently denied defendant's motion for a new trial. Defendantappeals, arguing that the trial court erroneously found section 3-707 of the Code to be an absolute liability offense. He furthercontends that the State was required to prove a culpable mentalstate. Because it did not, it failed to prove him guilty beyond areasonable doubt. We reverse.

I. BACKGROUND

In June 1999, the State issued a traffic citation todefendant for driving an uninsured vehicle in violation of section3-707 of the Code. The trial court held a bench trial on thecitation in August 1999.

Officer Stephen Mechling testified that he is a policeofficer at the University of Illinois. On June 10, 1999, heobserved that the automobile that defendant was driving had anexpired registration sticker. Mechling stopped the vehicle. Defendant told Lewis that he had borrowed the car and did not knowthat the sticker had expired. Mechling checked the license platenumber using the mobile computer in his squad car and learned thatthe owner of the automobile had an expired driver's license andexpired license plates. Mechling believed that "there was a probable good chance there wasn't insurance on the vehicle." Hethen issued a citation for an uninsured motor vehicle. The Staterested its case.

Defendant's attorney moved for a directed verdict,arguing that section 3-707 of the Code was not an absoluteliability statute. The State had not proved its case because theevidence showed that defendant had no knowledge of the lack ofinsurance or any intent to commit the offense. The trial courtdenied the motion for a directed verdict, finding that section 3-707 is an absolute liability offense.

No other evidence was presented. The trial court founddefendant guilty of driving an uninsured vehicle in violation ofsection 3-707. Defendant filed a posttrial motion reasserting thearguments he made at trial. The trial court denied his motion andsentenced him as aforesaid.

This appeal followed.

II. ANALYSIS

Defendant argues that the trial court erred in findingthat section 3-707 of the Code creates an absolute liabilityoffense. As he did in the trial court, defendant contends that theState failed to prove him guilty beyond a reasonable doubt ofviolating section 3-707 because it did not prove that he knew thatthe vehicle was uninsured or that he intended to commit theoffense. We agree that the trial court erred in finding thatsection 3-707 of the Code creates an absolute liability offense.

Section 4-9 of the Criminal Code of 1961 (Criminal Code)provides:

"Absolute Liability. A person may beguilty of an offense without having, as toeach element thereof, one of the mental statesdescribed in [s]ections 4-4 through 4-7 if theoffense is a misdemeanor which is not punishable by incarceration or by a fine exceeding$500, or the statute defining the offenseclearly indicates a legislative purpose toimpose absolute liability for the conductdescribed." 720 ILCS 5/4-9 (West 1998).

The Illinois legislature has intended to limit the scope ofabsolute liability offenses. People v. Gean, 143 Ill. 2d 281, 285-86, 573 N.E.2d 818, 820 (1991), citing Ill. Ann. Stat., ch. 38,par. 4-9, Committee Comments--1961, at 226-28 (Smith-Hurd 1989)(now 720 ILCS Ann. 5/4-9, Committee Comments--1961, at 169-72(Smith-Hurd 1993)). Absent clear indication that the legislatureintended to impose absolute liability or an important public policyfavoring absolute liability, courts are unwilling to interpret astatute as creating an absolute liability offense. Gean, 143 Ill.2d at 286, 573 N.E.2d at 820-21; In re K.C., 186 Ill. 2d 542, 546,714 N.E.2d 491, 494 (1999). Instead, if at all possible, courtswill infer the existence of a culpable mental state, even where thestatute itself appears to impose absolute liability. K.C., 186Ill. 2d at 546, 714 N.E.2d at 494.

Turning to the statute at hand, section 3-707 of the Codeprovides as follows:

"No person shall operate a motor vehicleunless the motor vehicle is covered by aliability insurance policy in accordance with[s]ection 7-601 of this Code.

Any person who fails to comply with arequest by a law enforcement officer fordisplay of evidence of insurance, as requiredunder [s]ection 7-602 of this Code, shall bedeemed to be operating an uninsured vehicle.

Any operator of a motor vehicle subjectto registration under this Code who is convicted of violating this [s]ection is guiltyof a business offense and shall be required topay a fine in excess of $500, but not morethan $1,000. However, no person charged withviolating this [s]ection shall be convicted ifsuch person produces in court satisfactoryevidence that at the time of the arrest themotor vehicle was covered by a liabilityinsurance policy in accordance with [s]ection7-601 of this Code." 625 ILCS 5/3-707 (West1998).

While section 3-707, as written, does not impose incarceration, itdoes impose a fine in excess of $500. Therefore, section 3-707 canimpose absolute liability only under one of two conditions: (1)clear evidence exists that the legislature so intended or (2) animportant public policy favors absolute liability. We hold thatneither condition exists.

The State argues that the best indicator of legislativeintent is the plain language of the statute. Because section 3-707provides no element of a mental state, the State suggests that thelegislature intended to make it an absolute liability offense. However, "'[t]he mere absence of express language describing amental state does not per se lead to the conclusion that none isrequired.'" Gean, 143 Ill. 2d at 286, 573 N.E.2d at 821, quotingPeople v. Valley Steel Products Co., 71 Ill. 2d 408, 424, 375 N.E.2d 1297, 1304 (1978). We are unable to glean from the plainlanguage of section 3-707 itself any legislative intent to createan absolute liability offense. We have also examined the legislative history of section 3-707 of the Code and have likewise notfound any clear indication of a legislative intent to make section3-707 an absolute liability statute. 85th Ill. Gen. Assem., HouseProceedings, May 18, 1988, at 126-47.

The State also argues that the insubstantial penaltyprovided in section 3-707 of the Code makes it more likely thatsection 3-707 creates an absolute liability offense. The State iscorrect that a factor to be considered in determining whether astatute creates an absolute liability offense is the possiblepunishment that can be imposed for a violation. Gean, 143 Ill. 2dat 287, 573 N.E.2d at 821. "'[W]here the punishment is great, itis less likely that the legislature intended to create an absoluteliability offense.'" Gean, 143 Ill. 2d at 287, 573 N.E.2d at 821,quoting People v. Sevilla, 132 Ill. 2d 113, 122, 547 N.E.2d 117,121 (1989). However, the insubstantial nature of the punishment,by itself, is insufficient to evidence a clear legislative intentto create an absolute liability offense. As we have stated,neither the plain language nor the legislative history of section3-707 provides other evidence of such a clear legislative intent.

Relying on People v. Avery, 277 Ill. App. 3d 824, 661N.E.2d 361 (1995), the State argues in the alternative that thepublic policy of highway safety favors imposition of absoluteliability. In Avery, the statute at issue made driving whileimpaired by an alcohol concentrate of 0.10% or higher a criminaloffense. Avery, 277 Ill. App. 3d at 829, 661 N.E.2d at 365. TheAvery court found evidence of a legislative intent to imposeabsolute liability. The court also found an important publicpolicy, namely, street and highway safety, that favored absoluteliability. Avery, 277 Ill. App. 3d at 829-30, 661 N.E.2d at 365. The State has erroneously likened the purposes andpolicies promoted by section 3-707 of the Code to those promoted bythe statute in Avery. Unlike the statute in Avery, section 3-707does not promote street and highway safety by regulating the waypeople drive. Rather, section 3-707 is concerned with theconsequences after an accident has already occurred, particularlywith the payment of medical costs and automobile repair expenses. By promoting liability insurance, section 3-707 seeks to reduce thenumber of instances in which a motorist struck by an uninsuredvehicle is left to pay the medical bills and property damagehimself. While these are certainly legitimate concerns, we findthat they are not sufficient justification to warrant absoluteliability under section 3-707 of the Code, particularly in theabsence of any legislative intent to the contrary. We arepersuaded by the fact that in People v. Nunn, 77 Ill. 2d 243, 251-52, 396 N.E.2d 27, 30-31 (1979), the Illinois Supreme Court foundthat the offense of leaving the scene of a vehicle accidentinvolving death or personal injury was not an absolute liabilityoffense, although the public policies implicated thereby areequally if not more important than the public policy implicated bysection 3-707 of the Code.

Having found that section 3-707 is not an absoluteliability offense, we must determine what mental state applies. Weconclude that knowledge is the appropriate mental element. SeeGean, 143 Ill. 2d at 288-89, 573 N.E.2d at 822 (mental staterequired for conviction for possession of salvage certificateswithout authority and certificates of title without completeassignment is knowledge); Sevilla, 132 Ill. 2d at 124, 547 N.E.2dat 122 (knowledge is element of offense of failing to file aretailers' occupation tax return); Nunn, 77 Ill. 2d at 252, 396N.E.2d at 31 (offense of leaving scene of an accident involvingdeath or injury requires proof that defendant knew that the vehiclehe was driving was involved in accident). The purpose of section3-707 of the Code is to prevent motorists from driving uninsuredvehicles. To show a violation of section 3-707 of the Code, theprosecution must prove that the accused knew that the vehicle hewas driving was uninsured.

Here, the State presented no evidence that establishedthat defendant knew the vehicle he was driving was uninsured. Accordingly, we reverse the decision of the trial court findingdefendant guilty of a violation of section 3-707 of the Code andvacate his sentence.

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of thetrial court and vacate the sentence imposed upon defendant.

Reversed.

KNECHT, J., concurs.

MYERSCOUGH, J., dissents.

JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. The trial court did not err infinding section 3-707 of the Code creates an absolute liabilityoffense. Section 3-707 imposes absolute liability because there isboth clear evidence that the legislature so intended and animportant public policy favors absolute liability. Section 3-707of the Code, and a host of other corresponding or cross-referencedsections, including sections 7-601 and 7-602 and other sectionsfound in the same chapter, all reflect, in their plain language,the legislature's intent to create absolute liability offenses. See 625 ILCS 5/3-707, 7-601, 7-602 (West 1998). These sectionsalso espouse important public policies in favor of highway safetyand financial responsibility.

Sections 7-601 (required liability insurance policy) and7-602 (insurance card) are located in article VI (mandatoryinsurance) of chapter 7 (Illinois Safety and Family FinancialResponsibility Law) of the Code. 625 ILCS 5/7-601, 7-602 (West1998). These statutes, as well as those contained in the samechapters and articles, reflect in their plain language thelegislative intent to create absolute liability offenses, as wellas the important public policies of highway safety and financialresponsibility. Illinois courts have often recognized that thepublic policy behind, or the purpose of, the insurance requirementis protection of the public. See State Farm Mutual AutomobileInsurance Co. v. Universal Underwriters Group, 285 Ill. App. 3d115, 120-21, 674 N.E.2d 52, 55 (1996).

Section 3-707 could not be clearer: "No person shalloperate a motor vehicle unless the motor vehicle is covered by aliability insurance policy in accordance with [s]ection 7-601 ofthis Code." (Emphasis added.) 625 ILCS 5/3-707 (West 1998). Section 7-601 further specifies not only that one shall notoperate, register, or maintain registration of an uninsured motorvehicle, but an owner may not permit someone else to do so. Section 7-602 then requires any operator of a motor vehicle tocarry proof of insurance--very specific types of proof.

Moreover, section 3-707 creates a rebuttable presumptionthat anyone who cannot provide that very specific proof ofinsurance shall automatically be deemed to be operating anuninsured motor vehicle. However, the operator may rebut thatpresumption in court by producing proof that insurance existed atthe time of the arrest. Nothing is said in the statute aboutknowledge or inadvertence.

The legislature has set forth the specific Code violations that are intent crimes. For example, under sections 7-602 (display of false insurance) and 7-603 (making or selling invalidor counterfeit insurance cards) (625 ILCS 5/7-602, 7-603 (West1998)), knowledge is required; and violation of section 7-602 is aClass A misdemeanor and violation of section 7-603 is a Class 4felony. Knowledge is clearly an element required to prove displayof false insurance:

"No person shall display evidence ofinsurance to a law enforcement officer, court,or officer of the court, knowing there is novalid liability insurance in effect on themotor vehicle as required under [s]ection 7-601 of this Code or knowing the evidence ofinsurance is illegally altered, counterfeit,or otherwise invalid as evidence of insurancerequired under [s]ection 7-602 of this Code. If the law enforcement officer issues a citation to a motor vehicle operator for displaying invalid evidence of insurance, the officershall confiscate the evidence for presentationin court.

Any person convicted of violating this[s]ection is guilty of a Class A misdemeanor." (Emphasis added.) 625 ILCS 5/3-710 (West1998).

Knowledge or intent is not an element required to provea violation of section 3-707. The legislature was clear. Avehicle cannot be driven without insurance. Vehicle insurance ismandatory. The legislative policy is set forth throughout thesestatutes and can be gleaned from their titles, for chapter 7 of theCode "Illinois Safety and Family Financial Responsibility Law" (625 ILCS 5/7-100 through 7-708 (West 1998)), as well as the plainlanguage of the statute. The public is disserved by ignoring theevident legislative intent to promote safety and family responsibility here.

Moreover, in Nunn, 77 Ill. 2d at 251-52, 396 N.E.2d at30-31, the supreme court found that the offense of leaving thescene was not an absolute liability offense; however, not becausethe offense failed to implicate an important public policy such ashighway safety. The case did not address this issue because thatstatute, in its language and history, clearly required knowledge ofthe driver that there had been a collision. There is no suchlanguage in 3-707 to indicate that the driver must know or be awarethat there is no insurance on the vehicle. In fact, the driver hasan affirmative duty to see that there is proof of insurance in thevehicle.

Similarly, vehicles are required to be registered andlicensed with the Secretary of State and proof of registration anddisplay of license plates are required to be carried and exhibitedupon demand.

"(a) Every registration card for a vehicle of the second division weighing more than8,000 pounds or any vehicle of the seconddivision weighing 8,000 pounds or less towinga trailer, except pole trailer or semitrailershall at all times be carried in the vehicleto which it refers or shall be carried by theperson driving or in control of such vehiclewho shall display the same upon demand of apolice officer or any officer or employee ofthe Secretary of State.

(b) The provisions of this [s]ectionrequiring that a registration card be carriedin the vehicle to which it refers or by theperson driving the same shall not apply whensuch card is used for the purpose of makingapplication for renewal of registration orupon a transfer of registration of said vehicle." 625 ILCS 5/3-411(a), (b) (West 1998).

Similarly, no person shall operate a vehicle with acancelled, suspended, or revoked registration, although an ownermust not knowingly permit such a vehicle to be operated upon ahighway:

"(a) No person shall operate, nor shallan owner knowingly permit to be operated, uponany highway:

(1) A vehicle the registrationof which has been cancelled, suspended[,] or revoked; or

(b) No person shall use, nor shall anyowner use or knowingly permit the use of anyIllinois registration plate, plates or registration sticker, or any Illinois ReciprocityPermit or Prorate Decal which has beencancelled, suspended[,] or revoked." 625 ILCS5/3-702(a)(1),(b) (West 1998).

The operator (as opposed to an owner) of the vehicle is subject toabsolute liability for this offense, which is also a Class Amisdemeanor. 625 ILCS 5/3-702(c) (West 1998).

The statutory scheme and language set forth in the Codeevince both legislative intent to create absolute liability and animportant public policy--highway safety and financialresponsibility--favoring absolute liability. I would affirm thetrial court.