## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Jackson , 2013 IL 113986

Caption in S upreme Court: T HE PEOPL E OF THE STATE OF I L L I NOI S et al.
, Appellants, v

. AARON JACKS ON, Appe llee.

Docke t No. 113986

Filed Fe bruar y 7, 2013

Held ( Note : This syl l abus

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 by the Repo r t 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

. ) Where a dri v er whose license had been revoke d obtained another one, alleg edly by misleading officia ls, a char g e un der the statute forbidding driving on a revoke d license should not have b ee n d i s missed for the statute’s purported denial of due proce ss as applied wher e the case could be decide d on nonconst i t utional g rounds conce rning proof of the elements of the offe nse—circ uit court dismissal of charg e vac ated.

Dec ision Under Review Ap p ea l from the Circuit Court of Clint on County
, the Hon. Dennis Middendorff

, J udg e, pre siding.

J udg ment Vac ated a nd rema nded.Counsel on

Appea l L isa Madig an, Attorn ey General, of Springf ield, and J ohn Hudspeth, State’s Attorney
, of C arlyle (Michael A. Scodro, S olicitor Gene ral, and Clifford W. Be rlow, Assistant Attorney Gene ral, of Chicag o, of counsel), for the People and interve nor-a ppellant.

M ichae l J

. Pelletier, State Appellate Def ender
, J ohannah B. We b er , De p u t y Def

ender
, and Dan W. Evers, Assistant Appellate Def ender
, of the Offic e of the State Appellate Def ender
, of Mt. V ernon, for appellee

.

J ustices J USTI CE KARMEI ER delivere d the judgme nt of th e c o u rt, with opinion. Chief J ustice Kilbride and J ustices Fr eema n, Thomas, Gar

man, Bur ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 Def

endant, Aar on J ackson, was charg ed by information on Mar ch 3 1
, 2 0 1 1
, wi th the Class 4 felony of “Dr iving while driver’ s li ce n s e, p ermit or privileg e to operate a motor vehicle is suspended or revoke d” (driving while license suspended or revoke d), in violation of I llinois Vehicle Code (Code) section 6-303(a ) and (d), for an offe nse that occur red on J uly 9, 2010. See 625 I L CS 5/6-303 (West 2010). The information also alleg ed that defe ndant was subject t o extended-term sentencing pursuant to section 5-5-3.2(b)(1) o f t he Unified Code of Correc tions (730 I L CS 5/5-5-3.2(b) (1) (Wes t 2 0 1 0)). Def endant moved to dismiss the char g e on the ground that sec tion 6-303 was unconstitutional as applied to him under both the I llinois Con s t i tution of 1970 and the United States Constitution. The circ uit court of Clint on County g rante d the motion, holding that beca use the s t at u t o ry scheme found in section 6-303(a ) and (d) violated d ef en d an t ’s right to due proce ss, the char g e must be dismiss ed and defe ndant discharg ed. The People of the State of I llinois
, and the I llinois Secre tary of State, whom the circ uit court allowed to intervene (collec tively
, the State),
appea led direc tly

to this court, as require d in case s in which a statute of this state has bee n held invalid. See I ll. S. Ct. R. 603 (ef f. Oct. 1, 2010). For the following rea sons, we vacate 1

T he Sta te ’s not ic e of app eal imprope rl y ci te d Supr eme Cour t Rule 302( a) (1) (I ll

. S. Ct. R. 1 302( a) (1) (e ff

. Oct. 4, 2011 )) , which deal s wi th dir ect app eal s t o the S upr eme Cour t in civil cas es, and Supr eme Cour t Rule 612( b) (I ll

. S. Ct. R. 612( b) (e ff

. Sept

. 1, 2006 ))
, whic h dea ls wit h cr iminal
pro cedura l m at te rs gov erned by ci vil app eal s rul es, bu t doe s not inc lud e app eal s to the Supr eme Cour t unde r R

ule 302( a) (1)

. T her eaf

te r, the Cli nto n Count y ci rc uit cou rt erron eou sl y fi le d the Sta te ’s
not ic e of ap pea l in the app el la te cou rt

. T he app el la te cou rt , on it s own m oti on, pro per ly ent er ed a Ma rc h 1, 2012
, ord er tr ans fe rr ing thi s m at te r to thi s cou rt pur sua nt to Supr eme Cour t Rule 365 (I ll

. S. Ct . R. 36 5 ( ef

f. F eb. 1, 19 94) ).

-2-the circ uit court’s order and remand to the circ uit court for further proce eding s consistent

with this opi nion.

¶ 2 BA CKGROUND ¶ 3 On Fe bruar

y 16, 2012, the circ uit court enter ed a wr i t t en o rd er grantingdefe ndant’s motion seeking a decla

ration that the statute under which he was char g ed (625 I L CS 5/6-303 (W est 2010)) was unconstitutional as applied to him. The order stated that the defe nd an t wished to prese nt cer

tain evidenc e at his trial, and the parties had stipulated to these fac ts for the purposes of the motion. There fore
, we shall rely upon the stipulated fac ts set forth below, including ne cessa

ry clar ification, in revie wingthe proprie ty of the c ircuit court’ s order

. ¶ 4 On No v em ber 6, 1997, when defe ndant was 15 y ear s old, he was char g ed wit h t h e offe nse of driving under the influence of alcoho l i n Ka n e County
, I llinois

. Although defe ndant had never applied for a license, the I llinois Secre tary of State cre ated a driving

rec ord for defe ndant under the name Aar on A. J ackson, w h ich i ncluded a driver’ s license, number J 250-0018-2008. The Secre tary of Sate suspended that license as of Dec ember 22, 1997. We note that I llinois law require s the Secre tary of State to suspend the driver’ s license of anyone arr ested for driving under the influence (625 I L CS 5/11-501.1(h) (West 2010)) and that the period of statutory summary suspension continues until all require d reinstateme nt fee s have be en paid. People v . Martinez , 184 I ll. 2d 547, 551 (1998). ¶ 5 On April 19, 1998, defe ndant was char g ed with driving while license suspended, and wa s convicted of that offe nse on April 6, 1999. Meanwhile, on Marc h 25, 1999, defe ndant was sentenc ed to court supervision for the November 6, 1997, driving while under the influence offe nse. In fac t, the rec ord on appeal contains a Marc h 25, 1999, “Plea of Guilty and DUI Orde r for Court Supervision,” placing defe ndant on court supervision until Marc h 24, 2000. On November 29, 2000, defe ndant’s co u rt s upervision was revoke d and a judgme nt was enter ed on the c harg e of dr iving while unde r the influenc e of a lcohol. 2 ¶ 6 On Fe bruar

y 24, 2006, defe ndant applied for and rec eived an I llino i s d ri ver’ s license, number J 250-0008-2008, from the Secre tary of State under the name Aar on J ackson, using 3 his valid social securit y n u m b er. When applying for this license, defe ndant answe red the following question in the neg ative: “I s your driver’ s license or I D car d [or] privileg e to obtain

a license or I D car d suspended, revoke d, canc elled or ref used in any state under this or any other name[? ]” On J anuar y 16, 2008, defe ndant rene wed his driver’ s license number J 250- 0008-2008 without objection from the Sec reta ry of State. ¶ 7 In 2009, defe ndant rec eived citations for the offe nses of sp ee d i n g an d o p er at i n g an

I ll ino is la w re qui re s the Sec re ta ry of Sta te to imm edi at el y re vok e the li cen se of any dri ver 2
upon re cei ving a re por t of the dri ver’s con victi on of a viola ti on of sec ti on 11- 5 0 1 o f t h e C o d e , re la ti ng to dr iving whil e un derth e i nfl uen ce of al coh ol. 625 I LCS 5/ 6- 205( a) (2) (W est 201 0).

Alt hough the ci rc uit cou r t ’ s F ebruar y 16, 2012
, ord er re fe rs to the 2006 dri ver’s li cen se 3 number al te rna te ly as J 250-008- 2008 and J 25 0 -00 08- 2008
, the re cor d sho ws the la tt er number is

cor re ct

.
-3-uninsured motor vehicle in Marion County
, I llinois

. He pleade d guilty to those offe nses and

paid the assessed fine. The circ uit court of Marion County sent notice of these dispositi ons to the Secre tary of State. On J uly 9, 2010, defe ndant was issued a citation for driving while license suspended, and on J uly 20, 2010, the Secre tary of State sent notice to defe ndant that driver’ s license number J 250-0008-2008 was suspended. On Marc h 31, 2011, the State’s Attorney of Clint on County
, I llinois
, filed an information alleg ing that defe ndant had committed a Cla s s 4 felony for the offe nse of driving while license suspended on J uly 9, 2010. ¶ 8 In addition to setting for th the stipulated fac ts, the circ uit court’s orde r of F ebrua ry 16, 2012, notes that the parties wer e g iven an opportunity to argue and to supplement their
arguments with written memoranda
, and that the court had considere d those arguments and the “brie fs filed here in.” The circ uit court then set forth its u n d er s tanding of the parties
arguments, and its findings, stating , in part, as f ollows: “The substance of the [ S] tate’s posit ion is that the only elements of the offe nse of driving while license suspended are , first whether the defe ndant was driving
, and whether his lice n s e was suspended at that time. Indeed, the Attorney Gene ral argues [4 ] that the sta t u t o ry s cheme cre ates an ‘absolute liability offe nse for driving with a suspended or revoke d license.’ The Attorne y Gene ral urg es that this court find that the defe ndant participated in a fra udulent act by applying for a second license under a diffe rent name, conc ealingthe pre vious suspension.
* * * The essenc e of the defe ndant’s argument is that his due proce ss rig hts would be violated by ref

using to allow him to presen t ev i d ence of the above fac ts. The proposed de fense is in the nature of an af firmative de fense

. * * * This Court finds that, g iven the above fac ts, the trier of fac t could conclude that the Office of the S ecr etar y of S t ate was remise [ sic ] in its duties by issuing li cense J 250-0008-2008 to Mr. J ackson without conducting any examinatio n t o deter mine whether his driving privileg es had been previously revoke d. * * * The Secre tary of State would respond t h at Mr. J ackson committed a fra ud in his application. Fr aud require s intent, and this c ourt finds that Mr. J ackson should be permitted to prese nt evidenc e of his lack of intent. I t may well be, as the Attorney Gene ral sug g ests, that the defe ndant here in committed a fra ud in his application for d ri v i n g privileg es. Howeve r, the issue is not so clea r-c u t t h at it should deprive him of prese nting his defe nse to a trier

of fa ct. * * *
I t is the finding of this court that the statutory s ch em e found in 625 I L CS 5/6-

I n the ci rc uit cou rt , the I ll ino is Att orn ey Gene ra l re pre sen te d the I ll ino is Sec re ta ry of Sta te , 4 whil e Cli nto n Count y Sta te ’s Att orn ey J ohn Huds pet h re pre sen te d the Peop le of the Sta te of I ll ino is

. I n t his cou rt , bot h St at e e nti ti es ar e r epr ese nte d by the Att orn ey Gener al

.
-4-303(a) and (d) is unconstitutional as applied to this particula r defe ndant. The court’s finding of unconstitutionalit y is based upon the due proce ss clause s of the I llinois and United States Constitutions. The court further finds that the statutory scheme found in 625 I L CS 5/6-303(a) and (d) cannot rea sonably be construed in a manner that would prese rve its validity as applied to this defe ndant. The court also finds that the finding of unconstitutionalit y is nece ssary to the court’s decision and judgme nt, and that such decision and judgme nt cannot rest upon an alternative g round. Finally
, the
court finds the notice require d by the I llinois Supreme Court Rule 19 has been serve d
upon the I llinois Secre tary of State and Attorney Gene ral, and that those serve d with the notice have bee n g iven ade quate time and oppor tunity to defe nd the statute. The c harg e is dismissed and the def endant is dischar g ed.”

¶ 9 ANALYSI S ¶ 10 The pe rtinent sections of the statute at issue state:

“§ 6-303. D rivingwhile driver’s l icense , permit or privileg e to oper ate a motor vehicle is suspende d or re voked. (a) Ex cept as otherwise provided i n subsection (a-5), any 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 suc h person’ s driver’ s license, pe rmit or privileg e to do so or the privilege to obtain a driver’ s license or permit is revoke d or suspended as provided by this Code *** shall be guilty

of a Class A misdemea

nor. * * * (d) Any person convicted of a second violation of this Section shall be guilty of

a Class 4 felony and shall serve a minimum term of imprisonment of 30 day s or 300 hours of community service
, as deter mined by the court, if the orig inal revoc ation or suspension wa s fo r a v iolation of Section 11-401 or 11-501 of this Code, *** or a statutory summary suspension or re vocation under Section 11-501.1 of this Code.” 625 I L CS 5/ 6-303(a ), (d) (West 2010). ¶ 11 On appea l to this court, the State contends that the circ uit court err ed in decla ring section 6-303(a ) and (d) unconstitutional as applied to defe ndant. Howeve r, befor e we consider the constitutionalit y of the statute, we must first addre ss a preliminary issue brought to light by the parties’ briefs, i.e.
, whether the circ uit court improperly decide d the constitutional issue raised by defe ndant wher e the case could have been decide d on nonconstitutional grounds. See Mulay v. Mulay
, 225 I ll. 2d 601, 605 (2007); In re Application of the County Treasurer
, 214 I ll. 2d 253, 260 (2005). ¶ 12 In its reply

brief, the State argues, in part, a s follows:
“It is true that Def

endant’ s driver’ s license w as suspende d and that he la ter a pplied for and obtained a new driver’ s license, albeit by submitt ing a materia lly inacc urate appli cation. *** But the People have not argued that Def endant cannot rely o n h i s second driver’ s license at trial. *** They have instead argued that there are only two elements to the offe nse of driving with a suspended driver’ s license—‘ (1) the act of

-5-driving a motor vehicle on the highw ay s of this State and (2) the fac t of the

revoc ation of the driver’ s license or privileg e’—a nd that this evidenc e is rele vant to whether his driving privileg es wer e suspended under this second element. See People v. Close , 238 I ll. 2d 497, 507-08 (2010) ***. Thus, Def endant’ s repe ated insistence that he ca n offe r evidenc e re lating to the second driver’ s license calls attention to an issue over which, in larg e measure , there is no dispute. Appellants recognize that Def endant may

offe r that evidence at trial. *** The dispute here is over whether Def endant may offe r that evidenc e to show that the g overnme nt has not satisfied its burden of proof under a here tofore unrec og nized

mens rea element, or

only to pr ove he had a valid driver’ s license at the time of the offe nse. Only the cir cuit court has ever conclude d that Def endant may not prese nt that evidenc e and, i n tere stingly
, it was based upon the purported inequity of that
outcome that it deeme d the driving with a suspended driver’ s licens e s tatute unconstitutional.” ¶ 13 Fur

ther, de fenda

nt’s brief states: “While it may be time for this Court to fac e the in eq u ities of the ‘absolute liability ’ offe nse when there is a lack of notice or constructive notice to a driver, this is not the case to exam ine those problems. Rather, this Court is fac ed with [defendant’ s] case of whether he is allowed to prese nt a d ef en s e to the j ury that he believed he had a va lid driver’s lice nse.” ( Emphasis added.) There fore
, the parties agree that defe ndant should be allowed to prese nt evidenc e to show that the State has not met its burden of proof as to the second element of t h e o ff ense. It is only the purpose for which evidenc e of defe ndant’s fac ially valid license may be prese nted which is at issue. Acc ording ly
, we find that the question to be resolved in thi s ca s e i s one

conce rning proof of the elements of the offe nse and not, as the circ uit court found, a question as to the constitutionality of the statute de finingthe offe nse. ¶ 14 This court has repe atedly cited the g ener al principle that co u r ts w il l a d d r e s s constitutional issues only as a last resor

t, rely ing whene ver possible on nonconstitutional g rounds to decide

case s. Mulay
, 225 I ll. 2d at 607; In re E.H.
, 224 I ll. 2d 172, 178 (2006) (listing case s). As we pointed out in E.H.
, 224 I ll. 2d at 178, this c ourt has adopted Supreme Court Rule 18(c) (4) (I ll. S. C t. R. 18(c) (4) (eff

. Sept. 1, 2006)), re quiringa cour t to include a wr itten statement that the case could not be decided on a nonconstitutional g round befor e finding a statute constitutional. Be cause we have found that this case may be decide d on a nonconstitutional
g round, the circ uit court there fore err ed in making its Rule 18(c) (4) statement. Consequently
, we vaca te the circ uit court’s order and rema nd the cause for further proce eding s. See Mulay
, 225 I ll. 2d at 611. ¶ 15 Be fore d o i ng so, howeve r, we choose to clar ify the nonconstitutional issue prese nted. Be cause that i s s u e ra ises a purely leg al question, our revie w is de novo

. See People v. Dunnavan
, 381 I ll. App. 3d 514, 517 (2008); People v. Brener
, 357 I ll. App. 3d 868, 870 (2005) ( de novo revie w appropr iate on motion to dismiss char g es wher e neither the fac ts nor the cr edibility

of witnesses is at issue). ¶ 16 I t is well s ettled that t he only elements necessa ry to prove the offe nse of drivingwhi l e

-6-license suspended or revoked a re “ ‘(1) the ac t of driving a mot or vehicle on the hi g hway s of this State, and (2) the fac t of the revoc ation of the driver’ s license or privileg e.’ ” People

v. Close
, 238 I ll. 2d 497, 509 (2010) (quoting People v. Turner
, 64 I ll. 2d 183, 185 (1976)) ;

see also People v. W

aldron
, 208 I ll. App. 3d 234, 236 (1991); People v. Papproth
, 5 6 I ll. App. 3d 683, 686 (1977). Her e, only the second element is at issue. There fore
, at trial, once t h e S t at e p resents evidenc e to establish that defe ndant’s license or privileg e to drive was suspended or revoke d, defe ndant is entitled to prese nt evidenc e supporting his defe nse, i.e.
, that he did, in fac t, possess a valid license

. ¶ 17 In Turner
, W

aldron
, and Papproth
, the defe ndants wer e char g ed under section 6-303 of the Code with d ri ving while license suspended or revoke d and the State prese nted fac ts establis h i n g, i n ter alia
, the second element of that offe nse, that a license issued to the defe n d a nt h a d b e e n r e v o k e d

. T h e rea fter, eac h defe ndant prese nted evidenc e that he possessed

a driver’ s license, valid on its fac e, at the time of his arr est. Howeve r, as to the revoke d license at issue in Turner , this court stated:

“The Secre tary of State had revoke d the defe ndant’s license, and it co u l d be
restore d only upon compliance with the provisions of the statute. The defe ndant, of

course , did n o t co mply with the provisi ons of section 6-208. His privileg e to drive

was not restore d throug h his fra udulently obtaining a license under [another] name.” Turner , 64 I ll. 2d at 187. ¶ 18 This holding in Turner has bee n interpre ted to mean that
“if one purposely conce als the fac t of the previous revoc ation of his license in order
to mislead the authorities and preve nt them from proper ly deter mini ng whether he should be g rante d a license, he may not interpose a license so procur ed as a defe nse to the charg e of driving whil e h i s l icense was revoked.” W aldron
, 208 I ll. App. 3d at 236-37 (c iting Turner , 64 I ll. 2d at 187, and Papproth , 56 I ll. App. 3d at 688). There fore
, although a defe ndant is entitled, at his trial for the offe nse of driving while license suspended or revoke d, to prese nt evidenc e that he possesses a validly obtained license, if the State rebuts this defe nse by showing that the license was not restore d in compliance with the provisions of the Code, the second element of the offe nse is established. See Turner
, 64 I ll. 2d at 187; W

aldron
, 208 I ll. App. 3d at 237 (evide nce that defe ndant knew his I llinois license

was revoke d and that he perpe trated fra ud in obtaining Kansa s license was sufficie nt to prove him guilty of driving while license suspended or revoke d); but see Papproth
, 56 I ll. App. 3d
at 688-89 (re viewing court held, in r e v e r s ing defe ndant’s conviction for driving while license suspended or revoke d, that the evidenc e did not support a find i n g t h at defe ndant was attempting to perpe trate a fra ud or act calc ulated to dece ive the Secre tary of State in attempting to reinstate his revoke d license, when he truthfully informed the examiner of the prior re vocation but was ne verthe less g iven a tempor ary license)

. ¶ 19 Acc ording ly
, in this ca s e, as in Turner and W aldron
, the State may rebut de fenda nt’s evidenc e that he possessed a valid license wi t h ev i d ence that his license was not valid beca use he purposely misled the authorities to preve nt them from proper ly deter mining that his driving privileg es had not been otherwise suspended, re voked, or canc elled. Alternatively
, the S tate may rebut a defe ndant’s evide nce that he possessed a valid license

-7-with evidenc e that, while not attempting to perpe trate a fra ud, h e n o n etheless misled authorities such that his license was not restore d in compliance with the p ro v i s i o n s of the Code. See Turner
, 64 I ll. 2d at 187 (def endant’ s revoke d license could be restore d only upon compliance with section 6-208). ¶ 20 Section 6-208(b) (625 I L CS 5/6-208(b) (West 2010)) provides, inter alia : “Any person whose license, permit, or privileg e to drive *** has been revoke d shall not be entitled to have such license *** rene wed or restore d. Howeve r, such person may *** make application for

a license pursuant to Section 6-106,” afte r a ce rt ai n period of time has expired from the eff ective date of the revoc ation, but “m ay not have their privileg es restore d until the Secre tary rec eives pay

ment of the require d reinstateme nt fee .” Section 6-106(b) (625 I L CS 5/6-106(b) (West 2010)) calls, inter a l i a , fo r the applicant to disclose whether any license has eve r bee n “ca

ncelled, suspe nded, re voked or ref used, and if so, the date a nd rea son for such” a ction. Additionally , section 6-208( b) states:

“In no event shall the S ecr etar y issue such l icense unless and unti l such person has had a hear ing pursuant to this Code and the appropr iate administrative rules and the Secre tary is satisfied, afte r a revie w or investigation of such person, that to g rant the privileg e of driving a motor vehicle on the highw ay s will not endang er the public safe ty or we lfare .” 625 I L CS 5/ 6-208(b) (West 2010). ¶ 21 There fore
, a person whose defe nse is that he forg ot, or did not know that his license w as revoke d when applying for a license, l ea d i ng to his providing err oneous answe rs on his application, still misleads authorities, re sulting in a failure to c omply with a ll pr ere quisites for obtaining a valid license. At trial in these case s, the State may rebut a defe ndant’s fac ially valid license with proof that the err oneous information he provided cause d the Secre tary of State to is s u e t he license which, under the provisions of the statute, should not have been issued. See Turner , 64 I ll. 2d at 187. ¶ 22 I f, h o we v er , as in Papproth
, the evidenc e shows that: (1) the defe ndant restore d his license by complying with the applicable Code provisions and (2) the State cannot establish that he did so by perpe trating a fra ud, we agree with that court that “[t] he Turner rule should
not be app l i ed *** to a situation wher e an unintentional err or is made in an application,
espec ially when it does not mislead the Secre tary of State as to whether the applicant should be investigated.” Papproth
, 56 I ll. App. 3d at 688. In Papproth
, the defe ndant did not conce al his identity or the fac t of a 1972 revoc ation o f h i s l i cense

. His answe r as to the rea son for such revoc ation was not completely corr ect, as his license had been revo k ed i n 1 9 7 2 for moving violations, but he told the Secre tary of State examiner of his license’ s suspensions for lack of insurance betwee n 1968 and 1972. The appellate court held t h at “t h e evidenc e d o es not support a finding t hat [ defe ndant] was attempting t o perpe trate a fra ud but ra t h er sug g ests an honest confusion.” Id. at 688. Additionally
, the examiner, despite rec eiving this information, issued the defe ndant a temporar y license without first investigating him and his driving rec ord or allowing time fo r further investigation, as require d by the languag e of section 6-208(b) in eff

ect at the time of his arr est. See I l l

. R ev

. S t at. 1975, ch. 951⁄2, ¶ 6- 208(b). We find that, under these circ umstances, a “def endant should not be held criminally responsible be cause of such ove rsight.” Papproth , 56 I ll. App. 3d at 689.

-8-¶ 23 We there fore hold that, in a trial fo r a violation of section 6-303, our case law and the

statutory sche m e est ablished by the Code for restoring suspended and revoke d licenses allows for a deter

mination by the trier of fac t as to whether the defe ndant misled authorities into reinstating his privileg e to drive by providing err oneous information throu gh ei t h er purposef ul conce alment or incorre ct repr esentation. I t is important to note, howeve r, in light of the fac t that both parties agree that section 6 -3 0 3 h as been construed to set forth an absolute liability offe nse, that there is no aff irmative defe nse, such as insanity or nece ssity
, to violations of that section wher e the defe ndant does not contest that his license was suspended or revoke d. See People v. Ave ry , 277 I ll. App. 3d 824, 827, 830 (1995) (insanity defe nse was unavailable to defe ndant charg ed with ag g ravated driving under the influence
, wher e offe nse was absolute liability offe nse and defe nd an t ’s offe r of proof showed he
repe atedly

drove while under the influence ).

¶ 24 CONCLUSI ON ¶ 25 We hold that defe ndant’s motion to decla re section 6-303(a) and (d) of the Vehicle Code unconstitutional was improper ly g rante d, as a deter mination of t he c o n s t i tu t i onality of t he
statute is not nece ssary to decide the question prese nted by this case

. For this rea son, the judgme nt of the circ uit court of Clint on County dismiss ing the ch ar g ed offe nse and discharg ing defe n d an t i s v acated, and the cause rema nded to that court for further
proce eding s consistent with this opi nion.

¶ 26 Vac ated a

nd rema nded.

-9-