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                                 Supreme Court                             Date: 2018.09.10
                                                                           09:18:44 -05'00'



                           People v. Plank, 2018 IL 122202




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN
Court:               PLANK, Appellee.



Docket No.           122202



Filed                May 24, 2018



Decision Under       Appeal from the Circuit Court of Douglas County, the Hon. Richard
Review               L. Broch, Judge, presiding.



Judgment             Reversed and remanded.


Counsel on           Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Appeal               Solicitor General, and Michael M. Glick and Eric M. Levin, Assistant
                     Attorneys General, of Chicago, of counsel), for the People.

                     J. Steven Beckett and Audrey C. Thompson, of Beckett & Webber,
                     P.C., of Urbana, and Francis L. Thomas, of Tolono, for appellee.



Justices             JUSTICE GARMAN delivered the judgment of the court, with
                     opinion.
                     Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
                     Burke, and Theis concurred in the judgment and opinion.
                                              OPINION

¶1        The Illinois Vehicle Code prohibits anyone with a revoked driver’s license from driving a
     “motor vehicle.” 625 ILCS 5/6-303(a) (West 2012). However, someone with a revoked license
     may still drive a “low-speed gas bicycle” without violating this statute. Id. § 1-146. The
     Vehicle Code defines “low-speed gas bicycle” as a “2 or 3-wheeled device with fully operable
     pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved
     level surface, when powered solely by such a motor while ridden by an operator who weighs
     170 pounds, is less than 20 miles per hour.” Id. § 1-140.15.
¶2        When the State charged defendant John Plank with driving a motor vehicle with a revoked
     license, he claimed that the statute did not clearly tell him which vehicles he could and could
     not drive. Specifically he argued that the Vehicle Code’s definition of “low-speed gas bicycle”
     was unconstitutionally vague in violation of the due process clauses of the United States and
     Illinois Constitutions. The Douglas County circuit court agreed with defendant, dismissed the
     charge against him, and declared section 1-140.15 unconstitutional on its face. The State
     appealed directly to this court. We find that the Vehicle Code’s definition of “low-speed gas
     bicycle” satisfies the requirements of due process of law, and we reverse the circuit court’s
     decision and remand for further proceedings.

¶3                                         BACKGROUND
¶4       Officer Judson Wienke saw defendant John Plank riding a motorized bicycle down a
     Douglas County road at a speed of 26 miles per hour. Officer Wienke would later testify that he
     believed that “with motorized bikes they are allowed to go up to 19 miles per hour. Once they
     hit 20, they have to have a valid driver’s license, insurance, and registration.” He signaled to
     defendant to stop, and defendant pulled over. Defendant admitted to Officer Wienke that his
     license was revoked.
¶5       The State charged defendant with violating section 6-303(a) of the Vehicle Code.
     Generally, driving a motor vehicle on state highways with a revoked license is a Class A
     misdemeanor. However, the State alleged that defendant’s license had been revoked
     previously following a conviction for driving under the influence of drugs or alcohol (DUI).
     After that DUI conviction, defendant was convicted for driving without a valid license in 2011,
     2012, and 2013. This background led the State to increase the new charge to a Class 4 felony,
     requiring at least 180 days’ incarceration. Id. § 6-303(d-3).
¶6       The circuit court did not conduct any evidentiary hearings, so Officer Wienke’s testimony
     at the preliminary hearing provides the only factual record. He described defendant’s bicycle
     as powered by “a weed-eater motor” and noted that it was not registered in Illinois. Although
     the bicycle had pedals in addition to its gasoline motor, Officer Wienke testified that he did not
     see defendant pedaling.
¶7       Defendant moved to dismiss the charge, arguing that the Vehicle Code’s definition of
     “low-speed gas bicycle” was unconstitutionally vague. He claimed both that the definition fails
     to provide persons of ordinary intelligence with a reasonable opportunity to understand what is
     prohibited and that the definition encourages arbitrary and discriminatory enforcement. The
     circuit court agreed and dismissed the charge. The court noted that the definition refers to a
     “paved level surface” but no surface is perfectly level. The definition also relies on the

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       vehicle’s maximum speed with a driver who weighs 170 pounds. The circuit court criticized
       this aspect of the statute, repeating defendant’s claim that a police officer “would have to have
       a scale in their squad car in order to weigh the individual as soon as they pulled them over.”
¶8         The State filed a motion to reconsider, which the circuit court denied. At the State’s
       request, the court also made explicit findings under Illinois Supreme Court Rule 18 (eff. Sept.
       1, 2006). However, the court neglected to specify whether it found the statute unconstitutional
       as applied or on its face. The State appealed, and this court remanded to the circuit court so that
       it could clarify its ruling. The circuit court made its findings explicit, and it found section
       1-140.15 unconstitutional on its face. This appeal followed.

¶9                                               ANALYSIS
¶ 10        When an Illinois circuit court finds a statute unconstitutional, Illinois Supreme Court Rule
       603 (eff. Feb. 6, 2013) gives this court jurisdiction over the appeal. Whether a statute violates
       the United States or Illinois Constitution is a question of law, which this court reviews de novo.
       People v. Madrigal, 241 Ill. 2d 463, 466 (2011). Statutes are presumed to be constitutional, and
       “[t]o overcome this presumption, the party challenging the statute must clearly establish that it
       violates the constitution.” (Internal quotation marks omitted.) People v. Rizzo, 2016 IL
       118599, ¶ 23.
¶ 11        The State alleged that defendant violated section 6-303(a) of the Vehicle Code, which
       states that “any 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 *** shall be guilty of a Class A
       misdemeanor.” 625 ILCS 5/6-303(a) (West 2012). The term “motor vehicle” includes “[e]very
       vehicle which is self-propelled and every vehicle which is propelled by electric power obtained
       from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by
       human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas
       bicycles.” (Emphasis added.) Id. § 1-146. Finally, “low-speed gas bicycle” is defined as a “2 or
       3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower,
       whose maximum speed on a paved level surface, when powered solely by such a motor while
       ridden by an operator who weighs 170 pounds, is less than 20 miles per hour.” Id. § 1-140.15.
¶ 12        The circuit court agreed with defendant that this definition of “low-speed gas bicycle” was
       unconstitutionally vague and, thus, violated the due process clauses of the United States and
       Illinois Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. A statutory
       provision can be too vague to satisfy the requirements of due process of law in two ways: first,
       the statute does not provide individuals of ordinary intelligence a reasonable opportunity to
       understand what conduct the law prohibits, or second, the statute does not provide law
       enforcement with reasonable standards to avoid arbitrary or discriminatory enforcement. City
       of Chicago v. Morales, 527 U.S. 41, 56 (1999); Bartlow v. Costigan, 2014 IL 115152, ¶ 40. By
       allowing government actors to enforce only those statutes with definite content, the vagueness
       doctrine protects the rule of law from potential abuses of discretion. John C. Jeffries Jr.,
       Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 212-19
       (1985). However, “[i]f the plain language of the statute sets forth clearly perceived boundaries,
       the vagueness challenge fails, and our inquiry ends.” Bartlow, 2014 IL 115152, ¶ 42.



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¶ 13       We find that the circuit court erred when it found the definition unconstitutional. The
       statute both provides sufficient notice of what it prohibits to individuals of ordinary
       intelligence and supplies law enforcement officers with reasonable standards to prevent
       arbitrary enforcement.

¶ 14                                      A. The Driver’s Weight
¶ 15       Initially the parties dispute whether a vehicle only qualifies as a “low-speed gas bicycle”
       when it is driven by someone who weighs 170 pounds. To reiterate, a “low-speed gas bicycle”
       is a “2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one
       horsepower, whose maximum speed on a paved level surface, when powered solely by such a
       motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour.” 625
       ILCS 5/1-140.15 (West 2012).
¶ 16       Defendant argues that the definition only applies when the driver weighs exactly 170
       pounds and that the statute is vague when drivers have different weights. He cites the statutory
       canon that courts must give effect to every provision of the statute and should not render any
       part of it superfluous. Corley v. United States, 556 U.S. 303, 314 (2009). Because the Vehicle
       Code limits the definition of “low-speed gas bicycle” to a vehicle “ridden by an operator who
       weighs 170 pounds,” defendant argues that the court would violate this statutory canon if it
       read the definition to apply to all drivers, not solely those drivers who weigh 170 pounds. He
       refers to this as the “weight component” of the statute, and he notes that 40 other states have
       similar provisions in their vehicle codes that do not reference the driver’s weight.
¶ 17       The State responds that the definition refers to the weight of a driver only to clarify how
       powerful a vehicle’s engine must be for the vehicle to qualify as a “motor vehicle” and that an
       engine’s capability is the same regardless of any particular driver’s weight. To designate the
       relevant engine capability, the definition relies on the bicycle’s maximum speed on a paved,
       level surface. The State cites the National Highway Traffic Safety Administration’s (NHTSA)
       explanation that “the speed of a low-powered, two-wheeled vehicle may vary considerably
       depending on the weight of the driver.” NHTSA, Notice of Draft Interpretation, 70 Fed. Reg.
       34810, 34812 (June 15, 2005). According to the State, this explains why the relevant metric is
       the vehicle’s “maximum speed on a paved level surface *** while ridden by an operator who
       weighs 170 pounds.” (Emphasis added.) 625 ILCS 5/1-140.15 (West 2012).
¶ 18       The State’s reading is more persuasive. Defendant would be correct if the Vehicle Code
       defined “low-speed gas bicycle” as a “2 or 3-wheeled device with fully operable pedals and a
       gasoline motor of less than one horsepower, while ridden by an operator who weighs 170
       pounds.” However, the definition includes other phrases. The statute actually defines
       “low-speed gas bicycle” as a “2 or 3-wheeled device with fully operable pedals and a gasoline
       motor of less than one horsepower, whose maximum speed on a paved level surface, when
       powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less
       than 20 miles per hour.” (Emphases added.) Id. As defendant suggests, the court must give
       effect to every phrase in the statute and should not render any part of it superfluous. These
       phrases mean that a defining characteristic of a low-speed gas bicycle is an engine that is
       incapable of transporting 170 pounds at 20 miles per hour without help from gravity or
       pedaling. A bicycle’s motor will either have this capability or not, regardless of the weight of



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       any particular driver.

¶ 19                              B. Difficulty Understanding the Statute
¶ 20        Even though a vehicle’s status as a “motor vehicle” or a “low-speed gas bicycle” is the
       same regardless of any particular driver’s weight, defendant still insists that the Vehicle
       Code’s definition of “low-speed gas bicycle” is vague because people of ordinary intelligence
       cannot determine which vehicles they can legally drive. Defendant states in his brief that “the
       sole reason [he] purchased the vehicle at issue in this case is because, as someone whose
       license was revoked, he knows he may not operate motor vehicles. [Defendant] bought his
       motorized bicycle to comply with the law by operating a vehicle that fell under one of the
       prescribed exceptions to a ‘motor vehicle.’ ” His brief also references two newspaper articles
       that express similar frustrations. He contends that even when people want to comply with the
       law, they cannot easily determine how to do so.
¶ 21        The circuit court neither conducted an evidentiary hearing nor heard defendant testify, so
       none of this information is part of the record. Regardless, these allegations do not change this
       court’s analysis. Even before he drove his new bicycle, defendant had an obligation to
       determine whether it fit the definition of “low-speed gas bicycle.” The Vehicle Code specifies
       that each “motor vehicle *** when driven or moved upon a highway shall be subject to the
       registration and certificate of title provisions of this” statute. Id. § 3-402. It also requires that
       “[e]very owner of a vehicle subject to registration under this Code shall make application to the
       Secretary of State for the registration of such vehicle upon the appropriate form or forms
       furnished by the Secretary.” Id. § 3-405. An application for vehicle registration must
       accompany an application for a certificate of title. Id. § 3-115(a). According to Officer
       Wienke’s uncontested testimony, defendant did not register his vehicle. Instead of assuming
       his vehicle was exempt, defendant needed to diligently determine how to satisfy the Vehicle
       Code’s requirements.
¶ 22        Although defendant rightly observes that every statute must “provide people of ordinary
       intelligence a reasonable opportunity to understand what conduct it prohibits” (internal
       quotation marks omitted) (Bartlow, 2014 IL 115152, ¶ 40), the vagueness doctrine does not
       invalidate every statute with a complicated standard of conduct. Instead, a statutory provision
       is unconstitutionally vague if it “provides no standard of conduct at all” (People v. Fabing, 143
       Ill. 2d 48, 55 (1991) (finding a provision of the Illinois Dangerous Animals Act (Ill. Rev. Stat.
       1987, ch. 8, ¶ 240 et seq.) that prohibited possessing a “life-threatening reptile” sufficiently
       clear to affirm the defendant’s conviction for possessing two Burmese pythons and an
       alligator)). A statute is not proven vague when someone misunderstands its terms. Rather,
       courts fairly “require that one who deliberately goes perilously close to an area of proscribed
       conduct shall take the risk that he may cross the line.” Boyce Motor Lines, Inc. v. United States,
       342 U.S. 337, 340 (1952). The vagueness doctrine also does not require that a statute’s
       application to a particular set of facts be readily apparent. The General Assembly may
       constitutionally require people to seek additional information before they engage in legally
       questionable behavior. Bartlow, 2014 IL 115152, ¶¶ 45-49.
¶ 23        When courts have struck down statutes under the vagueness doctrine, they have done so
       because the statutes depended on “wholly subjective judgments.” (Internal quotation marks
       omitted.) Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010). For example, the United


                                                     -5-
       States Supreme Court found that a statute that prohibited grocery stores from charging “unjust
       or unreasonable rate[s]” was unconstitutionally vague. United States v. L. Cohen Grocery Co.,
       255 U.S. 81 (1921); Johnson v. United States, 576 U.S. ___, ___, 135 S. Ct. 2551, 2561 (2015).
       Similarly, a criminal statute that punished “annoying” loitering denied the defendants due
       process of law. Coates v. City of Cincinnati, 402 U.S. 611 (1971). As the United States
       Supreme Court explained in United States v. Williams, “[w]hat renders a statute vague is not
       the possibility that it will sometimes be difficult to determine whether the incriminating fact it
       establishes has been proved; but rather the indeterminacy of precisely what that fact is.” United
       States v. Williams, 553 U.S. 285, 306 (2008).
¶ 24        In contrast to statutes with subjective terms, statutes that define criminal conduct with
       mathematical precision routinely survive vagueness challenges before state supreme courts. In
       People v. Falbe, 189 Ill. 2d 635 (2000), this court upheld an enhanced penalty for selling
       cocaine within 1000 feet of a church. Whether the prohibited conduct occurred within this area
       was “merely a matter of measurement,” so the statute was not vague. Id. at 641. The
       Washington Supreme Court reached the same conclusion when it found that an increased
       penalty for selling drugs near school bus stops was constitutional. State v. Coria, 839 P.2d 890
       (Wash. 1992). Even if the defendant could not easily know whether he was within 1000 feet of
       a school bus stop, the standard of conduct was clear. Id. at 897. In Burg v. Municipal Court,
       673 P.2d 732 (Cal. 1983), the Supreme Court of California upheld a statute that prohibited
       anyone with a blood-alcohol content over 0.10% from driving a motor vehicle. The defendant
       had argued that the statute was unconstitutionally vague because typical drivers have no way to
       test their own blood-alcohol level. The California court rejected this, finding that the statute
       was sufficiently clear to convey what it prohibited. Although this California decision does not
       bind Illinois courts, Illinois has a similar statute, and this court has not struck it down for
       vagueness. See, e.g., 625 ILCS 5/11-501(a)(1) (West 2012).
¶ 25        The Vehicle Code’s definition of “low-speed gas bicycle” resembles the statutes in Falbe
       and Burg more than those in L. Cohen Grocery Co. and Coats. Unlike the unconstitutionally
       vague statutes in L. Cohen Grocery Co. and Coats, the Vehicle Code does not treat the same
       conduct differently based on each person’s subjective evaluation of what is “annoying” or
       “unreasonable.” Instead, a particular vehicle either is a “low-speed gas bicycle” for everyone
       or it is not for everyone, just as a driver’s blood-alcohol content either is or is not over 0.10%.
       See Burg, 673 P.2d at 740-43. This is all that the vagueness doctrine requires.
¶ 26        Defendant also argues that the statute is unconstitutionally vague because police officers
       cannot enforce it without resorting to arbitrary considerations. To determine whether a
       particular bicycle is a “motor vehicle,” an officer would need to estimate the strength of the
       bicycle’s motor by considering the driver’s weight, the vehicle’s speed on a paved, level
       surface, and whether the pedals function properly. However, defendant objects that officers
       cannot accurately make such determinations during a traffic stop. Although officers can
       estimate the driver’s speed using a radar gun, they cannot determine to what extent that speed
       resulted from the gasoline engine, the driver’s pedaling, or an inclined path.
¶ 27        In support of this argument, defendant points to Officer Wienke’s testimony at the
       preliminary hearing. Officer Wienke testified that “with motorized bikes [drivers] are allowed
       to go up to 19 miles per hour. Once they hit 20, they have to have a valid driver’s license,
       insurance, and registration.” Defendant suggests that Officer Wienke confused the Vehicle


                                                    -6-
       Code’s definition of “low-speed gas bicycle” with section 11-1516(b), which prohibits driving
       a low-speed gas bicycle over 20 miles per hour. 625 ILCS 5/11-1516(b) (West 2012).
       According to defendant’s interpretation, Officer Wienke also failed to consider the driver’s
       weight or pedaling. This echoes the circuit court’s concern that the statute refers to the
       vehicle’s speed on a paved, level surface but no surface is perfectly level. Defendant argues
       that the statute asks officers to make assessments that they cannot possibly make and that this
       authorizes arbitrary enforcement.
¶ 28        Even if defendant is correct that an officer might have difficulty estimating engine power,
       the vagueness doctrine does not require officers to precisely gather sufficient data to prove all
       the elements of a crime at the moment of citation or arrest. An officer need only have probable
       cause to believe the suspect has committed a crime. People v. Grant, 2013 IL 112734, ¶ 11. For
       example, if a driver swerves erratically, stumbles and sways when exiting the vehicle, and
       smells of alcohol, an officer has probable cause to suspect the driver of being intoxicated.
       People v. Wear, 229 Ill. 2d 545, 565 (2008). Looking for such behavior is a sensible way for
       the officer to evaluate the driver’s mental state. If the officer cannot test the driver’s
       blood-alcohol content, this inability to immediately gather precise data about the driver’s state
       does not render the statute prohibiting driving while intoxicated unconstitutionally vague.
       Similarly, if an officer sees someone driving a motorized bicycle at a speed well over 20 miles
       per hour down a level road, those facts support the officer’s initial conclusions that this
       vehicle’s motor is powerful enough to move someone who weighs 170 pounds over a paved,
       level surface at a speed over 20 miles per hour and that the driver needs a valid license to
       operate this vehicle.
¶ 29        The vagueness doctrine is not implicated every time officers cannot conclusively
       determine at a glance whether someone has violated a particular statutory provision. Once the
       State has charged someone with violating section 6-303(a) of the Vehicle Code, the prosecutor
       still has the burden of proving the elements of the crime beyond a reasonable doubt—including
       that the bicycle that the defendant drove had a strong enough motor to qualify it as a “motor
       vehicle.” People v. Grandadam, 2015 IL App (3d) 150111, ¶ 17. As far as the vagueness
       doctrine is concerned, the Vehicle Code’s definition of “low-speed gas bicycle” provides both
       law enforcement and other law-abiding Illinoisans with definite criteria to determine if a
       certain vehicle is a “motor vehicle.” It is not so ineffective that it “provides no standard of
       conduct at all.” Fabing, 143 Ill. 2d at 55.

¶ 30                                       CONCLUSION
¶ 31      The Vehicle Code’s definition of “low-speed gas bicycle” satisfies the requirements of due
       process of law. We reverse the circuit court’s dismissal of the charge and remand for further
       proceedings.

¶ 32      Reversed and remanded.




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