No. 2--00--0459

	 D R A F T  

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

	)

	Plaintiff-Appellee,	)	

	)	No. 99--CF--3058

v.	)	No. 99--CF--3058

	)	

ANTHONY E. RODGERS,	)	Honorable

	)	George J. Bakalis,

	Defendant-Appellant.	  )	Judge, Presiding.

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court:

	Following a bench trial, defendant, Anthony E. Rodgers, was convicted of driving while his license was revoked (DWLR) (625 ILCS

5/6--303(a) (West 1998)).  He was sentenced to 18 months'

imprisonment.  See 625 ILCS 5/6--303(d) (West 1998) (enhancement to

felony).  He appeals, arguing that the State failed to prove that

he did not have "a restricted driving permit issued *** under the

law of another state" (625 ILCS 5/6--303(a) (West 1998)).  We

affirm.

	Defendant was charged with violating section 6--303(a) of the

Illinois Vehicle Code.  That section states:

		"Any person who drives *** a motor vehicle on any highway

of this State at a time when such person's driver's license

*** 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, family financial responsibility driving permit, probationary license to drive, or a restricted

driving permit issued pursuant to this Code or under the law

of another state, shall be guilty of a Class A misdemeanor."  (Emphasis added.)  625 ILCS 5/6--303(a) (West 1998). 

	At trial, the sole witness was Max Wilson, a Wheaton police

officer.  He testified that on June 29, 1998, he was on patrol.  At

about 1 a.m., on a public highway, he noticed a vehicle traveling

with an unlit headlight.  He stopped the vehicle and asked

defendant, the driver, for his license.  Defendant said that he did

not have one "on his person" but that his name was Jerry J. Foster. 

Wilson relayed that name to his department, which informed him that

the name was an alias used by defendant.  Wilson also learned that

defendant's driver's license had been revoked.  When Wilson

confronted him, defendant admitted his identity, and he was

arrested.

	The State submitted a certified copy of defendant's Illinois

driving record.  In that record, the Secretary of State confirmed

that defendant's license was revoked as of June 29, 1998.

	Defendant moved for a directed finding, arguing that the State

failed to disprove that he had a restricted driving permit from

another state.  Relying on People v. Ellis, 71 Ill. App. 3d 719 (1979), the court denied the motion.  Defendant was convicted and

sentenced, and his motion to reconsider was denied.  He appeals,

repeating the argument that he made below.

	In Ellis, the issue was virtually identical.  The defendant was charged with violating section 6--303(a), which at the time

stated as follows:

		"Any person who drives a motor vehicle on any highway of

this State at a time when his drivers license *** is revoked

or suspended as provided by this Act or any other Act, except as may be allowed by a restricted driving permit issued under

this Act, shall be guilty of a Class A misdemeanor ***."  (Emphasis added.)  Ill. Rev. Stat. 1977, ch. 951⁄2, par. 6--

303(a).

The defendant appealed his conviction, arguing that the State

failed to prove that he did not have a restricted driving permit. 

	The Appellate Court, Fourth District, concluded that the State

had no burden to disprove the statutory exception.  The court

explained:

		"The general rule in Illinois is that where *** there are

exceptions embraced in the enacting clause creating the

offense which affect the description of that offense, the

State must allege and prove that the accused does not come

within the exception. *** On the other hand, if the exception

*** merely withdraws certain acts or persons from the

operation of the statute, it need not be negatived, and its

position in the act *** is of no consequence.  Such exceptions

are generally matters of defense.  [Citations.]  In the

instant case, the exception merely withdraws persons with

restricted driving permits from the operation of the statute

and in no sense is descriptive of the offense."  Ellis, 71 Ill. App. 3d at 720-21.

	Defendant acknowledges Ellis but asserts that, in light of People v. Laubscher, 183 Ill. 2d 330 (1998), Ellis is "of dubious precedential value."  In Laubscher, the defendant was charged with the unlawful use of weapons (UUW) under section 24--1(a)(4) of the

Criminal Code of 1961.  That statute provides:

		"(a) A person commits the offense of unlawful use of

weapons when he knowingly:

	* * *

			(4) Carries or possesses *** concealed on or about

his person except when on his land or in his own abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm ***." (Emphasis added.)  720 ILCS

5/24--1(a)(4) (West 1998).

The defendant appealed his conviction, contending that the State

was bound to negative the exceptions.  The supreme court agreed,

ruling as follows:

		"As can be seen, the legislature has included the above-

[emphasized] exceptions within the statutory definition of the

offense of unlawful use of weapons.  When 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.  Cf. People v. Saltis, 328 Ill. 494, 500-01 (1927) ***."  Laubscher, 183 Ill. 2d at 335.

	Defendant concludes that, as the exceptions in section 24--

1(a)(4) are "part of the body" of UUW, the exceptions in section 6-

-303(a) are "part of the body" of DWLR.  We aggreedo not deny that, in each

statute, the exceptions appear within the definition of the

offense.  Nevertheless, we reject defendant's argument.

	Before Laubscher, the supreme court had not used the phrase "part of the body of a substantive offense."  Clearly, however, the

exceptions in section 24--1(a)(4) are not "part of the body" of UUW

merely because of where they appear.  Indeed, the supreme court has

long recognized that it is not an exception's location that

controls; it is whether, as the Ellis court stated, the exception affects the description of the offense.  See, e.g., People v. Butler, 268 Ill. 635, 638 (1915).  

	We see nothing in Laubscher that evinces an intent to abandon this venerable rule.  On the contrary, by inviting a comparison to Saltis, the court demonstrated its adherence.  Referring to Saltis, we deduce the following.  Although 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."  Saltis, 328 Ill. at 501.  If the exception is so incorporated, the State must disprove

its applicability.  However, if the exception "merely withdraws

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."  Saltis, 328 Ill. at 501.

	In light of this analysis, we determine that Ellis remains valid is correct and that Laubscher is distinguishable.  Under section 24-- 1(a)(4), no defendant can commit UUW merely by carrying or

possessing a concealed firearm.  Rather, a defendant can be guilty only if he is not "on his land or in his own abode or fixed placed of business."  720 ILCS 5/24--1(a)(4) (West 1998).  It is the inapplicability of the exceptions that makes the use of weapons

unlawful.  Thus, to accurately describe the elements of UUW, one

must refer to the exceptions.

	On the other hand, if 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.

	We conclude that, in the parlance of Laubscher, the exceptions in section 6--303(a) are not "part of the body" of the substantive

offense of DWLR.  Therefore, the State was not required to prove

that defendant did not have "a restricted driving permit issued ***

under the law of another state" (625 ILCS 5/6--303(a) (West 1998)). 

On these grounds, we sustain defendant's conviction.

	The judgment of the circuit court of Du Page County is

affirmed.

	Affirmed.

	McLAREN and CALLUM, JJ., concur.