                              No. 2--04--0930                     filed: 6/28/06
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF             ) Appeal from the Circuit Court
ILLINOIS,                              ) of McHenry County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) Nos. 03--DT--789
                                       )      03--TR--32245
                                       )      03--TR--32246
                                       )      03--TR--32247
                                       )
KEVIN A. STEELE,                       ) Honorable
                                       ) Gerald M. Zopp, Jr.,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE GROMETER delivered the opinion of the court:

       Defendant, Kevin A. Steele, was convicted of numerous traffic offenses in the circuit court of

McHenry County, including operating an uninsured vehicle (625 ILCS 5/3--707 (West 2002)). On

appeal, he contends that section 3--707 of the Illinois Vehicle Code (Code), which defines that

offense, contains an unconstitutional mandatory presumption. See, e.g., People v. Watts, 181 Ill. 2d

133, 142-43 (1998). We disagree and therefore affirm.

       The constitutionality of a statute presents a pure question of law; hence, review is de novo.

People v. Miles, 344 Ill. App. 3d 315, 318 (2003). At issue here is the following provision of section

3--707 of the Code:

               "Any person who fails to comply with a request by a law enforcement officer for

               display of evidence of insurance, as required under section 7--602 of this Code, shall
No. 2--04--0930


       be deemed to be operating an uninsured motor vehicle." 625 ILCS 5/3--707 (West 2002).

Section 3--707 goes on to state that a person who produces in court satisfactory evidence that the

vehicle he or she was operating was insured at the time of the arrest may not be convicted of

operating a vehicle without insurance. 625 ILCS 5/3--707 (West 2002).

       According to defendant, these provisions have the effect of shifting the burden to him to

produce evidence of his innocence. In defendant's words, "the failure to display proof of insurance

cannot be equated automatically with the lack of insurance itself." The United States Supreme Court

has held that mandatory rebuttable presumptions are unconstitutional in that they relieve the State of

its burden of proving all elements of a crime beyond a reasonable doubt. Sandstrom v. Montana,

442 U.S. 510, 524, 61 L. Ed. 2d 39, 51, 99 S. Ct. 2450, 2459 (1979). Indeed, in People v. Pomykala,

203 Ill. 2d 198, 209 (2003), our own supreme court struck down a portion of the reckless homicide

statute that provided that, "[i]n cases involving reckless homicide, being under the influence of

alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be

evidence of a reckless act unless disproved by evidence to the contrary," because it could be read as

shifting the burden to a defendant to disprove that he or she had been reckless (720 ILCS 5/9--3(b)

(2000)).

       Similarly, in Watts, 181 Ill. 2d 133, the supreme court held unconstitutional a portion of the

home repair fraud statute that required a defendant to disprove intent not to perform a contract where

the State proved any of a number of predicate facts (815 ILCS 515/3(c) (West 1994)). The court

explained:

               "We agree that in the area of criminal law, mandatory rebuttable presumptions which

               shift the burden of production to the defendant are unconstitutional. A production-shifting

       presumption places a burden on the defendant to come forward with a certain quantum of evidence to

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No. 2--04--0930


       overcome the presumption. If the defendant does not satisfy that burden, the judge is required, in

       effect, to direct a verdict against the defendant on the element which is proved by the use of the

       presumption. This result conflicts with the longstanding rule that a verdict may not be constitutionally

       directed against a defendant in a criminal case.       [Citations.] In sum, we agree with the

       commentator who noted that, '[s]ince a verdict may not be directed against an accused, the burden of

       production with respect to an element of a crime * * * may never be shifted to the defendant.'

       [Citation.] Therefore, we hold that such a presumption violates the due process clause of the

       United States Constitution for the reasons discussed above. These same reasons lead us to

       hold separately that a mandatory production-shifting presumption also violates the due

       process clause of the Illinois Constitution." Watts, 181 Ill. 2d at 147.

It is thus clear that shifting the burden of proof, whether it be of production or of persuasion, to a

defendant in a criminal trial violates due process under both the state and federal constitutions.

       However, given the particular features of this state's prohibition against driving an uninsured

vehicle, we conclude that this principle is not offended in cases such as the present one. In

interpreting a statute, courts have a duty to construe it in such a manner as to uphold its

constitutionality, so long as the construction is reasonable. People v. Dinelli, 217 Ill. 2d 387, 398

(2005). Our primary goal in interpreting a statute is to determine the intent of the legislature.

People v. Swift, 202 Ill. 2d 378, 385 (2002). Where the language of a statute is clear, we will not

resort to further aids of construction. Swift, 202 Ill. 2d at 385. Finally, the party challenging a

statute bears the burden of establishing that it is unconstitutional. People v. Dixon, 359 Ill. App. 3d

938, 942 (2005).

       The difference between the instant case and cases like Pomykala and Watts is that the failure

to display evidence of insurance when requested to do so by a law enforcement officer is the offense

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No. 2--04--0930


of operating an uninsured motor vehicle. Section 7--602 of the Code states, in pertinent part, that

"Any person who fails or refuses to comply with such a request is in violation of Section 3--707 of

this Code." 625 ILCS 5/7--602 (West 2002). The plain language of this section indicates that the

failure to produce proof of insurance is not simply evidence that a vehicle is uninsured, as the

language of section 3--707 suggests. Because such a failure is an offense, the State need do no more

than introduce such evidence in order to sustain a conviction. The burden, therefore, does not shift

to a defendant to disprove his guilt. However, once the State introduces evidence that a defendant

has failed to produce proof of insurance when required, the defendant may, as with any issue of fact,

attempt to controvert the evidence that the State introduced.

       What makes it appear as if the burden is actually being shifted is the saving provision

through which an individual may avoid a conviction. That provision states that no person may be

convicted of a violation of section 3--707 who produces sufficient proof of insurance in court. 625

ILCS 5/3--707 (West 2002). Thus, at a cursory glance, it appears that the burden of production

shifts to a defendant to provide proof of insurance. Indeed, if simply failing to produce such proof

when requested by a law enforcement officer were not an offense in itself, the fact of operating an

uninsured vehicle would be presumed from the fact of not having produced proof of insurance at the

necessary time. Given that documents may understandably be lost or mislaid, the nexus between

these two facts is insufficient to satisfy the proof-beyond-a-reasonable-doubt standard. See County

Court v. Allen, 442 U.S. 140, 167, 60 L. Ed. 2d 777, 798, 99 S. Ct. 2213, 2229-30 (1979) ("In the

latter situation, since the prosecution bears the burden of establishing guilt, it may not rest its case

entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond

a reasonable doubt"). However, because it is an offense, the burden does not shift to a defendant to

prove that he or she did not fail to produce the appropriate documentation. What a defendant is

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No. 2--04--0930


permitted to produce in court in no way controverts the fact that he or she did not previously produce

it when requested.

        Instead, the legislature has provided a mechanism to avoid conviction that is more accurately

characterized as an act of grace than as a shifting of the burden of proof. It would be a harsh law

indeed that imposed a substantial penalty upon a person who simply could not locate proof of

insurance when asked to do so. We do not believe that, by providing a procedure to mitigate the

law's potential harshness, the legislature has run afoul of the due process clause. After all, that

clause must be applied with reference to common sense. Deck v. Missouri, 544 U.S. 622,

652, 161 L. Ed. 2d 953, 977, 125 S. Ct. 2007, 2026 (2005) (Thomas, J.,

dissenting, joined by Scalia, J.) ("[W]e should not forsake common sense in determining what due process

requires"); Burnham v. Superior Court, 495 U.S. 604, 628, 109 L. Ed. 2d 631, 650,

110 S. Ct. 2105, 2119-20 (1990) (White, J., concurring in part and concurring in the judgment)

("[T]here has been no showing here or elsewhere that as a general proposition the rule is so arbitrary and lacking

in common sense in so many instances that it should be held violative of due process in every case"); People v.

Taylor, 138 Ill. 2d 204, 217 (1990) ("To require the General Assembly to define each

element of an offense, even though the common meaning of the terms themselves defines the

criminal offense with sufficient certainty that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement, would

place upon that branch of government a burden not required by the due process provisions of the Federal

and State Constitutions or by common sense"). Holding that it was within the power of the legislature

to make failing to produce proof of insurance an offense, but that it was beyond its power to alleviate

the potential harshness of that law, would, quite simply, be absurd.

        Accordingly, we hold that section 3--707 of the Code is not constitutionally infirm.

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No. 2--04--0930


Defendant's conviction under that section is therefore affirmed.

       Affirmed.

       BOWMAN and CALLUM, JJ., concur.




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