may please the court that afternoon and my name is kathleen whack from the house offenders office representing mr richard lewis i plan to focus mainly on arguments to end three these two alternative due process arguments raised in the briefs and i will explain how this court's recent decision in people versus the laws specifically applies to my first due process argument but i will of course address your questions on any of the other issues raised in the first mr lewis's conviction under section six forty six slash one twenty of the criminal code violates the due process clause because it does not require proof of a criminal mental state and can punish innocent conduct a the purpose of the statute is to make it more difficult for prior offenders to get the ingredients used to make methamphetamine but the statute is override because it can punish the entirely not criminal conduct of buying or possessing  decongestant st i had hoped this argument differs from the one made in law as his and that case the defendant was trying to preserve the constitutionality of the statute by requiring that a conviction be accompanied by a criminal is over bride punishes and it's a contract just using it to treat medical symptoms and fails the rational relationship tats because the statute does not require the prior offender to have a criminal purpose when he buys or possesses the prescribed precursor without a prescription a person with a prior meth conviction faces this felony conviction and a minimum one year prison sentence for possession with the intent to treat medical symptoms of himself or others in his h this court expressly held in laws that it was not reaching this issue although it was raised at the trial court level because the public counsel had forfeited the argument on appeal and so therefore we are now asking this court to address the constitutionality of the statute and louis's case we have knowledge that the statute already contains a mental state of knowingly so this case is not fall under the parameters of case like that was relied on by a public counsel in laws in that there is a mental state of knowingly possesses receives acquires the precursor but without a criminal purpose to divert meth production there is no reasonable relationship between the statute whose purpose is to make it harder to get the precursor to make and methamphetamine and the defendant's conduct of possessing any amount of a decongestant that well your honor it covers anyone with a prior conviction under the nothing but i mean community control act so from that matter it might have been from a person with a prior conviction of making maff or being involved with others who made  from possessing methamphetamine and maybe you had no ever in the background maybe never had diverted a precursor to make math so it is targeting people with prior prior offenses true wilner that was addressed in the other misdemeanor statute which i'm also open to discussing here in six forty eight slash twenty where it was only a misdemeanor offense and you found it to be a rational relationship between the prohibition against anyone with a prior offense or anyone purchasing more than seventy five hundred milligrams of a precursor within a thirty day period there  level it is it's a very overbroad statute an instructive case is carpenter which the court noted in laws was the case that should have been relied upon for the defendant's argument and l knowing that there was a secret compartment in a motor vehicle and and carpenter pointed out that the person could knowingly possess the motor vehicle that contains can secret compartment but have no intent to be hiding something particularly in there to from law enforcement you know like a weapon or drives which is what the whole purpose of that statute was so here we are asking th that six forty six slash one twenty is unconstitutional on to process grounds because it's not reasonably designed to achieve the purpose of keeping prior offenders from getting in order to manufacture muff because it's overbroad and potentially punishes this and it's and conduct a consuming for health purposes or even as i said someone could be running afoul of it the police going to the house and find a package of it in their medicine cabinet our second to process argument which was argument three in the briefs is that six forty six slash one twenty is an arbitrary irrational statute because it carries a much greater penalty th conduct acquiring more than seventy five hundred milligrams of than a thirty day period which obviously is more likely to be diverted to the manufacture of math carries only a class  carrying a much lower penalty as we noted in the briefs the scheme is substantially similar to the schemes that issue in illinois supreme pieces of wagner and bradley and where be more culpable conduct carry the was selling close to a church or school now that's not entirely analogous but it's part of a a public policy that sometimes the things that you do have greater consequences because of what you've done before or were you do how does that or the sex offender who doesn't know he so he bears consequences that may be totally unrelated to why he was there just as this gentleman bears consequences because his ability to possess even a single pill is abuse convictions from being around children where they may be harmed so that well we don't want this guy appear on meth because it may be bad for him well separate and apart from using it to create something else but i really don't  want to be around the cursors but here yeah i think the issue here is that it's a nothing but i mean precursor is a schedule five dr controlled substance which means it has low potential for abuse and has medicinal purposes so here we're talking about something that is not inherently dangerous and of itself like an illegal like heroin for all it's not inherently dangerous the defender goes to the dog park this may be the most the most  couldn't tell you couldn't see the boy and yet you would be made be held to that standard as state's attorney chose charge or revoke well i believe this may probably has been challenged by someone with saxophones perhaps on those on those grounds but you know looking at it here we're talking about the rational purpose of the last six forty six last one twenty is to keep people from getting me angry hence to make methamphetamine but we're talking about it's not rationally there's not rationally tailored when he doesn't have a criminal purpose to use this product so from that milligrams in a thirty day period which is clearly as discussed in one or a much more rational way to stop the harm which is to stop the production of methamphetamine were as here we're talking about someone with a with a decongestant pill in their house with a felony so this from a due process standpoint this is not a rational statute it's also going on i don't necessarily want to get into the other ones arguments in the brief but we also look at it the misdemeanor offense applies to anyone from any jurisdiction with the prior methamphetamine related offense so that again is this rationally tailored to if you say we're just go just targeting him specifically and six forty six one twenty people with prior convictions under the mc c p a in illinois so it's only applying to a very small class  convicted of just having some math why are they kept from getting a cold decongestant hell from that standpoint this is just such an overbroad statute in this not rationally related to the  he essentially now arguing that the state filled to prove his knowledge of the law which of course because section one twenty eight does not clearly defines now which it was in elements section fo statutory definition so it's fed this knowledge of the law does not matter so with respect to substantive due process the question is whether there's a reasonable relationship to the public interest here which is preventing diversion of precursors towards manufacture methamphetamine is this a reasonable method a furthering that public interest those are the questions and there is a rational basis here because this is the most workable easily enforceable mechanism of preventing those people who have histories of prior convictions that make them the most likely people to divert any amounts of ceuta african towards and lists that mean a faction of methamphetamine from obtaining it without a prescription so in other words if they don't get a prescription the presumption is that they are intending on paper they could get a prescription if they really needed it in other words but they don't have a prescription so therefore they are going to value for that is a reasonable judgment that the legislature to make in passing this law and essentially what this defense argument is that he disagrees that this conduct which has been identified by the legislature should be criminal he says  that the legislature says no it's criminal conduct he disagrees he's going to lose that question because people of the old state of illinois through their elected representatives in general simply get to decide what is innocent and what is criminal they said that this specific conduct is  is that a person with this in this criminal conviction history who possesses super after green in any amount without a prescription that's the crime that's the only crime and that's what exactly what the legislature intended to do so they're for all the other cases that are doing a substitute due process are irrelevant they don't apply here because those are situations the legislature criminalize way too much more than they meant to hear that it's exactly the same just like the williams case that the unidentified sound recordings case statute prohibits possession to have an act of possession has to be voluntary defend has no astaire has to have voluntarily have an act of possession so if someone else in his house had it but he doesn't have some prescription he's very guilty  possession are usually related to affirming convictions after that showing had been made to say that that was part of what it means to this that's something and it can be constructive it doesn't have to be in the person's own pocket for the medicine cabinet right because we share a bathroom with people in your home and it's clear to all of you possess it well it would be better for the people to organize their conduct in such a way so as to make it prevent that person from obtaining access to the substance which he is not allowed to decide if he wants to stay on the right side of the law and doesn't want to get prosecuted and trapped in a situation where the state might charge him might argue constructive possession if you does something to ensure that he doesn't have access to it like for example if someone has like a lock box an inexpensive lock box with a key they could keep that secret for going in there keep the key and not give their partner their roommate access to that substance that could be something that people could do to organize their fares but that doesn't mean that it's irrational for the legislature to h were to make some other limits for example say you cannot because that's more than one thousand milligrams a day any time what's to stop a person then from taking that one thousand diverting it and going back and getting another one thousand and diverting that cetera this a rational method of accomplishing its objective and so the senate claims that this is for treating medical sentence but yes it is a schedule five controlled substance which means highly regulated one cannot simply go to a friend  at all innocent contact in fact it's actually already illegal with even without one step section one twenty so one thing to think about too under subsidy due process is one of the legislature just simply said that this is control says one schedule five controlled substance we're going to make it illegal for every one element possess this but they did they instead realized that this is something that some people have so they permitted as a matter of legislative grace under it a highly regulated system people to obtain it without a prescription and limited amounts except for people who have histories under convictions under the methamphetamine control and community protection act those people we don't trust with this at all so that's reasonable to do legislature could have made this a class four felony for anybody to possess it all in any amount got scription they didn't do that they made a big give space for some people to do this and other people not and that's reasonable class patient hundred equal protection clause and the fact that the a separate scheme that they cite and defense sites in their brief which is methamphetamine precursor control act which applies to everybody and of course there's some increase in penalties if someone ties they have to be related conviction but that's a companion scheme and that is a different form a great deal ation and the weight case it's possible have different punishment for separate expenses based on the same facts but the same same act and under the status case it's possible this is there is some level of overlap here and the fact the defendants claim is to say that it is possible for one person with a prior mc c p a prior conviction to go in and vise over seventy five hundred milligrams of controlled substance in thirty days without a prescription and violate both laws but that's not at all how the portion of penalties identical test works you have to look at the actual elements of the crimes and here the extra elements one has to say you they can't really be compared in terms of the type of the schemes are compact are our companion schemes but they're really targeting different contacts in it and they do have different purposes  so with that respects the state urges this court to find that this charge was proved beyond a reasonable doubt in the offense is constitutional and i would entertain any questions you have here we're saying he has to have knowledge of possession and also for purchase and also knowledge that it's a nothing but i mean person so i understand the tell had this holding that if the defendant in that case had known that he presents this a substance that would have been enough to prove his knowledge here were saying there was no proof i mean the statute says must not by own receive possess a methamphetamine precursor so my position is that it's not so much a mistake of a law as a mistake of the fact just you know the fact that this product facts of what it is he i still i would still insist that this is really not so much of a he doesn't he he may know the law that it's illegal to possess a methamphetamine cursor but doesn't know what he has because what he has is not a bottle of i guess ammonia and other things that people used to make methamphetamine those are also not just what they are but they're also something else so arguments that he doesn't have the conscious awareness the facts now in i v which much an element of the offense the whole prescription as counsel said for the person apparently is because it seems like it might be treated more as an exception rather than an element of the crime so they've allowed for this exception for a prior offender with the prescription yet have overlooked the glaringly obvious problem that even with the prescription that person may have no intent of used to treat cold sometimes may have the intent to still divert methamphetamine production so seems a little bit adding to their rationality of the whole scheme here where the really the purpose of it all is to prevent someone from diverting this precursor into making meth so there is this you know the prescription the loophole but that just adds to the irrationality of what's what's going on here where they want to just slap a prison sentence on someone who may have a completely harmless purpose of using it to treat calls and just happens to have it in their medicine cabinet at home and very well could get charged with constructively and we've been found in this house so for these reasons we asked the sam court to grant this jury was there at least