                                     2018 IL 122202



                                       IN THE

                              SUPREME COURT

                                          OF

                         THE STATE OF ILLINOIS




                                  (Docket No. 122202)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           JOHN PLANK, Appellee.


                               Opinion filed May 24, 2018.



        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 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




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       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 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




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       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.

¶ 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.




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¶ 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



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       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 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




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       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 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




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       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,




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       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 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.




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¶ 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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