ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

LYNETTE D. McPEAK, Defendant-Appellant.

 District & No. Second District

Docket No. 2-11-0557

Filed November 2, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In the prosecution of defendant for driving while her license was

suspended following her arrest for driving under the influence of alcohol,

the State had no obligation to prove that she was not operating her vehicle

as allowed by a monitoring device driving permit issued pursuant to the

Illinois Vehicle Code.

Decision Under 

Review

Appeal from the Circuit Court of Boone County, No. 10-CF-223; the

Hon. John H. Young, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Thomas A. Lilien and Kathleen J. Hamill, both of State Appellate

Defender’s Office, of Elgin, for appellant. 

Michelle J. Courier, State’s Attorney, of Belvidere (Lawrence M. Bauer

and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s

Office, of counsel), for the People.

Panel JUSTICE SCHOSTOKdelivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Burke concurred in the judgment

and opinion.

OPINION

¶ 1 Following a stipulated bench trial in the circuit court of Boone County, defendant,

Lynette D. McPeak, was found guilty of driving while her license was suspended (DWLS)

(625 ILCS 5/6-303(a), (c-3) (West 2008)) and was sentenced to a 1-year term of probation

and 30 days in the Boone County jail. It was stipulated that on May 10, 2010, a law

enforcement officer conducted a traffic stop of a vehicle driven by defendant. The abstract

of defendant’s driving record, which was admitted into evidence by stipulation, showed that

a December 6, 2009, arrest in Winnebago County for driving under the influence of alcohol

(DUI) resulted in the statutorysummarysuspension of her driver’slicense pursuant to section

11-501.1 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501.1 (West 2008)). The

abstract indicated that the statutory summary suspension was in effect when defendant was

stopped on May 10, 2010. Defendant argues on appeal that, in order to secure a conviction

of DWLS, the State was obligated to prove that she was not operating the vehicle as allowed

by a monitoring device driving permit (MDDP) (see 625 ILCS 5/6-206.1 (West 2008)).

According to defendant, because no evidence was presented on this point, her conviction

must be reversed. We conclude that the State was under no obligation to present such

evidence and we therefore affirm defendant’s conviction.

¶ 2 Section 11-501.1 of the Code (625 ILCS 5/11-501.1 (West 2008))–the so-called “implied

consent law”–provides that a motorist operating a vehicle on a public highway in Illinois is

deemed to have consented that, if arrested for DUI, he or she will submit to chemical testing

to determine his or her blood alcohol level. If the motorist refuses to undergo testing, or

submits to testing that reveals a blood alcohol level of 0.08 or more, his or her driving

privileges will be summarily suspended. A “first offender” (see 625 ILCS 5/11-500 (West

2008)) may receive a MDDP, which authorizes the recipient to drive a vehicle equipped with

an ignition interlock device that prevents the vehicle from starting until it has been

determined that the driver’s breath alcohol does not exceed a certain level. See 625 ILCS 5/1-

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129.1, 6-206.1 (West 2008). At the time of defendant’s DUI arrest, section 6-206.1(a) of the

Code (625 ILCS 5/6-206.1(a) (West 2008)) required the trial court to inform a first offender

of his or her right to a MDDP and to order the Secretary of State to issue a MDDP “unless

the offender has opted, in writing, not to have a MDDP issued.” The order for the issuance

of the MDDP must require the recipient to pay to the Secretary of State an administrative fee

not to exceed $30 per month. Id. The recipient must also have an ignition interlock device

installed at his or her own expense within 14 days of the issuance of the MDDP. The

provider of the ignition interlock device must notify the Secretary of State that it has been

installed. Id. The Secretary must cancel the permit if notification is not received. Id.

¶ 3 The statute under which defendant was charged here, section 6-303 of the Code (625

ILCS 5/6-303 (West 2008)), provides, in pertinent part, as follows:

“§ 6-303. Driving while driver’s license, permit or privilege to operate a motor

vehicle is suspended or revoked.

(a) *** [A]ny person who drives or is in actual physical control of a motor vehicle

on any highway of this State at a time when such person’s driver’s license, permit or

privilege to do so or the privilege to obtain a driver’s license or permit is revoked or

suspended as provided by this Code or the law of another state, except as may be

specifically allowed by a judicial driving permit issued prior to January 1, 2009,

[MDDP], family financial responsibility driving permit, probationary license to drive, or

a restricted driving permit issued pursuant to this Code or under the law of anotherstate,

shall be guilty of a Class A misdemeanor.

* * *

(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 eligible for a

MDDP shall be guilty of a Class 4 felony and shall serve a minimum term of

imprisonment of 30 days.” (Emphasis added.)

¶ 4 It is undisputed that defendant drove her vehicle during the period of the statutory

summary suspension. There is also no dispute that, at the time of the summary suspension,

defendant was a first offender for purposes of section 6-206.1 and was therefore eligible for

a MDDP. The record does not show, however, whether a MDDP had been issued to

defendant. At trial, defendant argued that the State failed to prove that the trial court in the

Winnebago County DUI proceedings had properly notified defendant of her right, as a first

offender, to receive a MDDP. Defendant argued that, absent evidence of the required

notification, the State had failed to prove her eligibility for a MDDP. In this appeal,

defendant does not seriously pursue this argument. Nor does she contest that she was eligible

for a MDDP. In fact, her argument on appeal is premised on the proposition that her

eligibility was properly established. According to defendant, “by proving that [she] was

eligible for an MDDP in order to support [charging her with a felony], the State assumed the

burden to prove that she either did not receive one or drove a vehicle that was not equipped

with an ignition interlock device.” There are two possible reasons why the State might be

held to such a burden: (1) to sustain its burden of proving the elements of the offense beyond

a reasonable doubt or, alternatively, (2) to disprove an affirmative defense supported by the

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evidence. As explained below, neither reason applies here.

¶ 5 It is a fundamental principle of criminal law that the State bears the burden of proving

all of the elements of the offense beyond a reasonable doubt. See, e.g., People v. Hernandez,

2012 IL App (1st) 092841, ¶ 64. Section 6-303(a) of the Code prohibits a motorist from

operating a vehicle while his or her license is suspended or revoked, but creates an exception

where operation of the vehicle is “specificallyallowed” under any of various driving permits,

including a MDDP. 625 ILCS 5/6-303(a) (West 2008). Thus, the issue here is whether the

inapplicability of this exception is an element of the offense that the State must prove beyond

a reasonable doubt. Consonant with our decision in People v. Rodgers, 322 Ill. App. 3d 199

(2001), we hold that it is not.

¶ 6 In Rodgers, the defendant argued that the State failed to meet its burden of proving that

he violated section 6-303(a) when he drove while his license was revoked. Specifically, the

defendant claimed that the State failed to prove that he lacked a restricted driving permit

from another state. We observed that, under People v. Laubscher, 183 Ill. 2d 330 (1998),

“ ‘[w]hen an exception appears as part of the body of a substantive offense, the State bears

the burden of disproving the existence of the exception beyond a reasonable doubt in order

to sustain a conviction for the offense.’ ” Rodgers, 322 Ill. App. 3d at 202 (quoting

Laubscher, 183 Ill. 2d at 335). We noted, however, that “[a]lthough an exception may appear

within the statutory definition of an offense, it is ‘part of the body’ of the offense only if it

‘is so incorporated with the language of the definition that the elements of the offense cannot

be accurately described without reference to the exception.’ ” Id. (quoting People v. Saltis,

328 Ill. 494, 501 (1927)). On the other hand, “if the exception ‘merelywithdraws certain acts

or certain persons from the operation of the statute,’ the exception is a matter of defense, and

its position in the statute ‘makes no difference.’ ” Id. (quoting Saltis, 328 Ill. at 501). In

holding that the State does not bear the burden of proving the lack of an out-of-state

restricted driving permit, we reasoned as follows:

“[I]f a defendant merely drives on a public highway while his license is revoked, he

commits what is generally a criminal act. That is, in the typical case, the commission of

the crime does not depend on the inapplicability of the exceptions. Thus, the exceptions

do not bear on the elements of the offense; instead, they state only that particular

defendants (those with, e.g., restricted driving permits) are protected from liability.

Because the exceptions merely withdraw certain persons from the scope of the statute,

the State has no burden to disprove them.” (Emphasis in original.) Id. at 203.

¶ 7 Similarly, the statutory exception for those driving as specifically allowed by a MDDP

merely withdraws such drivers from the scope of the statute. The exception is therefore a

defense, not an element of the offense that must be proved by the State. Defendant seeks to

avoid this result by arguing, in essence, that, when the State prosecutes the offense as a

felony and offers proof that the defendant was eligible for a MDDP, it necessarily raises the

statutory defense and must then prove beyond a reasonable doubt that the defense does not

apply. See 720 ILCS 5/3-2(b) (West 2008). Defendant reasons that because “everyone who

qualifies for an MDDP must receive one unless they opt out, the absence of an affirmative

indication that the defendant opted out supports the single reasonable inference that she did

not opt out.” The argument turns on its head the familiar truism that the absence of evidence

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is not necessarily evidence of absence. See, e.g., United States Securities & Exchange

Comm’n v. Bravata, 763 F. Supp. 2d 891, 910 (E.D. Mich. 2011). Without more information,

one can only guess whether a given motorist would choose to receive a MDDP. Not every

motorist who is eligible to receive a MDDP is in a position to make use of one. The most

obvious example of a motorist with no use for a MDDP is one who does not own a motor

vehicle or have access to a motor vehicle owned by someone who is willing to allow the

installation of an ignition interlock device. Presumably, such a motorist would gladly opt out

in writing in order to avoid paying a MDDP administrative fee to the Secretary of State.

Moreover, there are potentially serious consequences for the holder of a MDDP that is

cancelled because the holder fails to install an ignition interlock device. See 625 ILCS 5/6-

206 (West 2008).

¶ 8 Even if we were willing to accept the idea that eligibility for a MDDP, in itself, yields

an inference that one has been issued, that inference is only the starting point for raising a

defense to DWLS. If a defendant is to escape criminal responsibility for driving during a

period of suspension, there must be evidence not only that a MDDP was issued, but also that

the defendant drove “as specifically allowed” by the MDDP. 625 ILCS 5/6-303(a) (West

2008). In most cases that means the driver may operate only vehicles equipped with ignition

interlock devices. See 625 ILCS 5/6-206.1(a-1) (West 2008). There is no basis in law or logic

for an inference that, merely because a driver is eligible for a MDDP, he or she will

necessarily comply with this requirement.

¶ 9 Because there was insufficient evidence to raise a defense based on the issuance of, and

compliance with, a MDDP, the State met its burden of proof by establishing that defendant

drove during the period of a statutory summary suspension and that she was eligible for a

MDDP.

¶ 10 Forthe foregoing reasons, the judgment of the circuit court of BooneCounty is affirmed.

¶ 11 Affirmed.

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