## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . McPeak , 2012 IL App (2d) 110557

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. L YNETTE D . McPEAK, De fenda nt-Appellant.

District & N o. Second District Docke t No. 2-11-0557

Filed November 2, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n the prosec ution of defe ndant for driving while her license was suspended following her arr est for driving under the influence of alcohol, the State had no obliga

tion to prove that she was not operating her vehicle

as allowed by a monitoring device driving permit issued pursuant to the I llinois Vehicle Code.

Dec ision Under
Review Appea l from the Circuit C o u rt of Boone County
, No. 10-CF- 223; the Hon. J ohn H. Young , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. L ilien and Kathlee n J

. Hamill, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Michelle J

. Courier, State’s Attorney
, of Be lvidere (L awr ence M. Ba uer and Mary Be th Bur

ns, both of State’s Att orney s Appellate Prosecutor’s Offic e, of c ounsel), for

the People.

Panel J USTI CE SC H O ST O K d e li v e red the judgme nt of the court, with opinion. Presiding J ustice J org ensen and J ustice Bur ke concur red in the judgme nt and opinion.

OP INION

¶ 1 Foll o wi n g a s t i p u l ated bench trial in the circ uit court of Boone County , defe ndant, L y nette D. Mc Peak, wa s found g uilty of driving while her license was suspended ( DWL S) (625 I L CS 5/ 6-303(a ), (c -3) ( West 2008)) and wa s sentenc ed to a 1-y ear term of pr obation and 30 day s in the Boone County jai l

. I t was stipulated that on May 10, 2010, a law enfor ceme nt office r conduc ted a tra ffic stop of a vehicle driven by defe ndant. The a

bstract of defe ndant’s driving rec ord, which was admitted into evidenc e by stipulation, showed that

a Dec ember 6, 2009, arr est in Winnebag o County for driving under the influence of alcohol (DUI ) resulted in the statutory summary suspension of her driv e r ’ s li c e nse pursuant to section 11-501.1 of the I llinois Vehicle Code (Code) (6 2 5 I L CS 5/11-501.1 (West 2008)). The abstrac t indicated that the statutory summary suspension was in eff ect when defe ndant was stopped on May 10, 2010. Def endant a rgues on appea l tha

t, in order to se cure a conviction of DWL S, the State was obliga ted to prove that she was not operating the vehicle as allowed b y a monitoring device driving permit (MDDP) (see 625 I L CS 5/6-206.1 (West 2008))

. Acc ording to defe ndant, beca use no evidenc e was prese nted on t h i s point, her conviction
must be reve rsed. We conc l u d e t h at the State was under no obligation to prese nt such evidenc e and w e ther efor e af firm def endant’ s conviction. ¶ 2 Section 11-501.1 of the Cod e ( 6 2 5 I L CS 5/11-501.1 (West 2008))–the so-ca lled “implied
consent law”–pr ovides that a motorist opera ting a vehicle on a public highw ay in I llinois is deeme d to have consente d that, if arr ested for DUI
, he or she will submit to chemica l testing
to deter m i n e h i s or her blood alcohol level. I f the motorist ref uses to underg o testing, or submits to testing that reve als a blood alcohol level of 0.08 or more, his or h er d ri ving privileg es wil l be sum marily suspended. A “first off ender ” (se e 625 I L CS 5/11-500 (West 2008)) may rec eive a MDDP, which authorizes the rec ipient to drive a vehicle equipped with

an ignition interlock device that p re v ents the vehicle from starting until it has been deter mined that the driver’ s breath alcohol does not exceed a cer tain level. See 625 I L CS 5/1-

-2-129.1, 6-206.1 (West 2008). At the time of defe ndant’s DUI arr est, section 6-206.1(a ) of the

Code (625 I L CS 5/6-206.1(a) (West 2008)) require d the trial court to inform a first offe nder of his or her

rig ht to a MDDP and to order the Secr etar

y of State to issue a MDDP “unle ss the offe nder has opted, in writing, not to have a MDDP issued.” The order for the issuance of the MDDP must require the rec ipient to pay to the Secre tary of State an administrative fee
not to exceed $30 pe r month. Id. The re cipient must also have an i g nition interlock device installed at his or her own expense within 14 day s of the issu an ce o f the MDDP. The
prov i d er of t he ignition interlock device must notify the S ecr etar y of S tate that it has been installed. Id. The Sec reta

ry must cance l the permit if notification is not rec eived. Id. ¶ 3 The statute under which defe ndant was char g ed here
, sect i o n 6-303 of the Code (625 I L CS 5/ 6-303 (West 2008)), pr ovides, in pertinent par t, as follows: “§ 6-303. Driving while driver’ s license, permit or privileg e to o p er at e a motor vehicle is suspende d or re voked. (a) *** [A] ny

person who drives or is in actua l phy sical control of a motor vehicle

on any highw ay of this State at a time when such person’ s driver’ s l i cense, permit or privileg e to do so or the privileg e to obtain a driver’ s license or permit is revoke d or suspended as provided b y this Code or the law of another state, exc ept as may be specifically allowed by a judicial driving permit i ssued prior to J anuar y 1, 2009, [ MDDP ], family financ ial responsibility driving permit, probationar y license to drive, or

a restric ted driving permit issued pursuant to this Code or under the law of another state, shall be guilty

of a Class A misdemea

nor. * * * (c- 3) Any person convicted of a violation of this Section during a period of summary suspension imposed pursuant to Section 11-501.1 when the person was elig ible for a MDDP shall be g uilty of a Class 4 fe l o n y and shall serve a minimum term of imprisonment of 30 day s.” (Empha sis added.) ¶ 4 I t i s u n d i s p u t ed that defe ndant drove her vehicle during the period of the statutory
summary suspension. There is a lso no dispute that, at the time of the summary suspension, defe ndant was a first offe nder for purposes of section 6-206.1 and was there fore elig ible for

a MDDP. The rec ord does not show, howeve r, whether a MDDP had been issued to defe ndant. At trial, defe ndant argued that the State f ailed to prove that the trial court in the Winnebag o County DUI proce eding s had proper ly notified defe ndant of her rig ht, as a first offe nder, to rec eive a MDDP. Def end an t argued that, absent evidenc e of the require d notification, the State had failed to prove her elig ibilit y for a MDDP. In this appea l, defe ndant does not seriously pursue this argument. Nor does she contest that she was elig ible for a MDDP. I n fac t, her arg ument on appea l is premised o n t he proposition that her el i gi b i lity was proper ly established. Acc ording to defe ndant, “by proving that [she] was elig ible for an MDDP in order to support [charg ing her with a felony ], the State assumed the burden to prove that she either did not rec eive one or drove a vehicle that was not equipped with an ignition in t er l o ck device .” There are two possible rea sons why the State might be held to such a burden: (1) to sustain its burden of proving the elements of the offe nse beyond

a rea sonable doubt or, alterna tively
, (2) to disprove an aff irmative defe nse supported by the

-3-evidenc e. As e x plained below, ne ither re ason applies he re.

¶ 5 I t is a fun d amental principle of criminal l aw that the S tate bears the burden of proving all of the elements of the offe nse beyond a rea sonable doubt. See, e.g. , People v. Hernande z , 2 0 12 I L App (1st) 092841, ¶ 64. Section 6-303(a ) of the Code prohibits a motoris t fr o m operating a vehicle while his or her license is suspended or revoke d, but cre ates an exception wher e operation of the vehicle is “spec ifically allowed” under any of various driving permits, including a MDDP. 625 I L CS 5/6-303(a) (West 2008). Thus, the issue he re is whe ther the inapplicabilit

y of this exception is an element of the offe nse that the State must prove beyond

a rea sonable doubt. Consonant with our decision in People v. Rodgers
, 322 I ll. App. 3d 199 (2001), we hold that it is not. ¶ 6 I n Rodgers
, the defe ndant argued that the State failed to meet its burden of provingthat he violated section 6-303(a ) when he drove while his license was revoke d. Specifica lly
, the defe ndant claimed that the State failed to prove that h e l ac k ed a restricted driving permit from anot h er s t at e. We observe d that, under People v. Laubscher
, 183 I ll. 2d 330 (1998), “ ‘[w] hen an exception a

ppear s as part of the body of a substantive offe nse, the State bear s the burden of disproving the exis tence of the exception be y ond a rea sonable doubt in order
to sustain a conviction for the offe nse.’ ” R o d g er s , 322 I ll. App. 3d at 202 (quoting Laubscher
, 183 I ll. 2d at 335). We noted, howeve r, that “[a]lt houg h an exception may appea r within the statutory

definition of an offe nse, i t is ‘part of the body ’ of the of fense only

if it ‘is so incorpora

ted with the languag e of the definition that the elements of the offe nse cannot be acc urate ly descr ibed without r efe renc e to the exception.’ ” Id. (quoting People v. Saltis
, 328 I ll. 494, 501 (1927))

. On the other hand, “if the exception ‘mere ly withdraws cer tain acts

or cer tain persons from the opera tion of the statute,’ the exception is a matter of defe nse, and its position in the statute ‘make s n o d i ff er en ce.’ ” Id. (quoting Saltis
, 328 I ll. at 501). In ho l d i n g t h at the State does not bear the burden of proving the lack of an out-of-state restric ted driving permit, we r easone d as follows: “[I ]f a defe ndant mere ly drives on a public highw ay while his license is revoke d, he commits what is g ener ally a criminal act. That is, in the ty pical case , the commission of the crime does not depend on the inapplicability of the exceptions. Thus, the exceptions do not bear on the elements o f t h e o ff ense; instead, they state only that particular defendants (those with, e.g. , restric ted driving p er m i t s ) are protec ted from liability

. Be cause the ex ceptions m ere ly withdraw certa in persons from the scope of the statute, the State has no burde n to disprove them.” ( Emphasis in origina l.) Id. at 203. ¶ 7 Simi larly , the statutory exception f or those driving as spec ifically allowed by

a MDDP

mere l y wi t h d ra ws such drivers from the scope of the statute. The exception is there fore a defe nse, not an element of the offe nse that must be proved by the State. Def endant seeks to

av o i d this result by arguing, in essenc e, that, when the State prosec utes the offe nse as a felony and offe rs proof that the defe ndant was elig ible for a MDDP, it nece ssarily raises the statutory defe nse and must then prove beyond a rea sonable doubt that the defe nse does not apply

. See 720 I L CS 5/3-2(b) (West 2008). Def endant rea sons that beca

use “eve ryone who qualifies for

an MDDP must rece ive one unless they opt out, the absenc e of a

n aff irmative indication that the defe ndant opted out supports the single rea sonable infere nce that she did
not opt out.” The argument turns on its head the familiar truism that the absenc e of evidenc e

-4-is not nece ssarily evidenc e of absenc e. See, e.g

. , Un i t ed States Securities & Exc hange

Comm’n v. Bravata
, 763 F. Supp. 2d 891, 910 (E.D. Mich. 2011). Wit hout more information, one can onl y g uess whether a g iven m otorist would choose to re ceive a MDDP. Not eve ry motorist who i s elig ible to rec eive a MDDP is in a position to make use of one. The most obvious example of a motorist with no use for a MDD P i s one who does not own a motor vehicle or have acc ess to a motor v eh i cl e o wn ed by someone who is willing to allow the installation of an ignition interlock device

. Presumably
, such a motorist would g ladly opt out in writing in order to avoid pay ing a MDDP adm i n i s trative fee to the Secre tary of State. M oreove r, there are potentially serious conseque nces for the holder of a M DD P t h at i s

canc elled beca

use the holder fails to install an ignition interlock device

. See 625 I L CS 5/6- 206 (West 2008). ¶ 8 Even i f we were wil ling to acc ept t he idea that elig ibilit y for a MDDP, in itself, yields an inferenc e that one has b ee n i s s u ed, that infere nce is only the s tarting point for raising a defe nse to DWL S. I f a defe ndant is to es ca p e cr iminal responsibility for driving during a period of suspension, there must be evidenc e not only that a MDDP was issued, but also that the defe ndant drove “as speci fi ca l l y allowed” by the MDDP. 625 I L CS 5/6-303(a) (West 2008). In most case s that means the driver may operate only vehicles equipped with ignition interlock device s. See 625 I L CS 5/6-206.1(a- 1) (West 2008). There is no basis in law or logic for an i n fe re nce that, mere ly beca use a driver is elig ible for a MDDP, he or she will

nece ssarily

comply with this requirement. ¶ 9 Be cause there was insufficient evidenc e to raise a defe nse based on the issuance of, and compliance with, a MDDP, the State met its burden of proof by establishing that defe ndant drove during the period of a statutory summary suspensi o n an d that she was elig ible for a MDDP. ¶ 10 For the fore g oing rea sons, the judgme nt of the circ uit court of Boone County is a ffirme d.

¶ 11 Affir

med.

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