People v. Brady

No. 2--04--1281 filed: 1/11/07
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 03--CF--609
)
BENJAMIN D. BRADY, ) Honorable
) John R. Truitt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE KAPALA delivered the opinion of the court:

A Winnebago County jury found defendant, Benjamin D. Brady, guilty of drag racing (625

ILCS 5/11--504 (West 2002)) and leaving the scene of a motor vehicle accident involving the death

of a person (625 ILCS 5/11--401(b) (West 2002)). Thereafter, the trial court sentenced defendant

to a term of conditional discharge. Defendant appeals, contending that: (1) the State failed to prove

beyond a reasonable doubt that he violated section 11--401 of the Illinois Vehicle Code (625 ILCS

5/11--401 (West 2002)); (2) section 11--401 is unconstitutionally vague as applied to his conduct;

and (3) as applied to his conduct, section 11--401 violated his constitutional privilege against self-

incrimination. We reject each of defendant's appellate contentions and, consequently, affirm the

judgment of the circuit court of Winnebago County.
No. 2--04--1281

I. FACTS

Defendant was charged by indictment with leaving the scene of a motor vehicle accident

involving the death of a person, aggravated reckless driving (625 ILCS 5/11--503(c) (West 2002)),

and drag racing. The accident at issue occurred on February 25, 2003, at approximately 4 p.m. on

East State Street in Rockford, Illinois. Twenty-two-year-old Jason Rush was driving a black Ford

Mustang Cobra and died as a result of injuries that he sustained in the accident. The wreckage was

located near the intersection of East State Street and Mid America Drive. At the location of the

accident, East State Street has three lanes for eastbound traffic and three lanes for westbound traffic.

The posted speed limit at the location of the accident was 45 miles per hour.

At trial, Tammy Rezin testified that she was driving east on East State Street in the afternoon

on February 25, 2003. Rezin stopped in the right lane at a red light at the intersection of East State

Street and Bienterra Trail. Rezin noticed a teal blue car next to her car. Rezin heard some engine

revving as the light turned green, and the blue car and a black car to the left of the blue car started

going very fast. The cars proceeded "pretty much right next to each other" until the black car tried

to switch into the middle lane to get in front of the blue car. The black car attempted to change lanes

so fast that it rolled out of control. Rezin did not see the black car come in contact with the blue car,

but "it had to have been by a hair that it missed it." Rezin stopped her car and so did the driver of

the blue car, whom Rezin identified as defendant. The driver of the black car had been thrown from

his vehicle and was lying in a ditch. Upset, Rezin said to defendant, "you were racing." In response,

defendant said, "we couldn't have been going more than 50 miles an hour." Referring to the driver

lying in the ditch, Rezin told defendant, "that could have been you." Defendant did not respond.

Before defendant drove off, Rezin said "somebody get [his] license plate."

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Tracy Hoffman testified that she was working at the KDA kitchen and bath store on East

State Street on February 25, 2003. At approximately 4 p.m., Hoffman stepped outside to have a

cigarette, heard a loud noise, and saw a black car flying through the air. The car's door came off and

a body flew from the car and landed in the ditch. The black car landed on Mid America Drive.

Hoffman yelled to her coworkers to call 911 and then ran to the ditch, where she saw a body. When

Hoffman turned around, she saw a blue Camaro on Mid America Drive. When Hoffman asked where

the other car was, a man Hoffman identified as defendant said "there was no other car." A woman

came up to defendant and began yelling at him, accusing him of racing. At first defendant denied the

accusation and then said, "but we weren't going that fast." Next, Hoffman noticed that the blue

Camaro and defendant were gone.

Kristopher Bauch testified that he was driving east in the far-right lane of East State Street

on February 25, 2003. On his left, Bauch observed a blue Camaro and a black Mustang Cobra

"scream" past his truck with their motors "revving pretty high." Bauch thought that they were "drag

racing or whatever." As the vehicles passed his truck, they were right next to each other and, Bauch

estimated, they were traveling between 60 and 100 miles per hour. A white Chevrolet Cavalier

emerged from an access road and traveled east in the far-right lane. The white Cavalier moved into

the lane in which the black Mustang traveled. The black Mustang had to slam on the brakes to avoid

hitting the white Cavalier. As a result, the driver of the black Mustang lost control, slid sideways,

hit the curb, did a few barrel rolls, hit the ditch, and started to roll end-over-end. Car parts flew

everywhere and the black Mustang landed on an access road. Bauch stopped his vehicle, and the blue

Camaro, the white Cavalier, and another car also stopped. Bauch saw defendant get out of the blue

Camaro. When the police arrived, the blue Camaro and defendant were gone.

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Traffic accident reconstructionist Charles E. Carlson of the Rockford police department

estimated that the minimum speed of the black Mustang Cobra was between 81 and 88 miles per hour

before it started skidding. Based on the skid marks in the center lane attributed to the blue Camaro,

Carlson estimated the vehicle's minimum speed at 60 miles per hour at the beginning of the skid.

From the position of the skid marks, it appeared to Carlson that the black Mustang was to the left of

the blue Camaro and then crossed in front of the Camaro. Carlson found no evidence to indicate that

the black Mustang or the blue Camaro hit any other vehicle. Carlson agreed that Jason Rush being

thrown from the vehicle indicated that he was not wearing a seatbelt.

Other evidence presented by the State established that 18 telephone calls came into the 911

Center on February 25, 2003, between 4:01 and 4:09 p.m. One of those calls was from defendant's

cellular telephone. No member of the Rockford police department acquired from defendant within

one hour of the accident the information required by section 11--401(b). In fact, from the time of the

accident on February 25, 2003, through February 28, 2003, the date defendant was arrested,

defendant did not give any information to the police regarding the accident. Jody Gaunt was the

driver of the white Cavalier. An investigator with the Rockford police department characterized

Gaunt as a witness who was not involved in the accident. A medical examiner determined that Jason

Rush died from neurogenic shock due to acute cranio-cerebral blunt trauma resulting from a motor

vehicle crash.

In his motion for a directed verdict at the close of the State's case, defendant argued, among

other things, that the State failed to produce evidence that he was "involved in a motor vehicle

accident." The trial court denied defendant's motion.

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The 21-year-old defendant1 testified that since 2002 he and his father have jointly owned a

blue 1991 Chevrolet Camaro. Just before 4 p.m. on February 25, 2003, defendant drove his girlfriend

to Value City Furniture, which is adjacent to the intersection of North Mulford Road and East State

Street. Defendant then headed home to his parents' house on Anee Drive. Defendant explained that

his intended route was east on East State Street, then south on Mid America Drive to Anee Drive.

Defendant drove his blue Camaro out of the parking lot of Value City Furniture, onto North Mulford

Road, and then south a short distance to the traffic light at the intersection of North Mulford Road

and East State Street. While waiting to turn left onto East State Street, defendant noticed a black

Mustang Cobra directly ahead of him, also waiting to turn left. Defendant said he noticed the black

Mustang because it looked "clean," meaning "well taken care of, a nice looking car."

Defendant turned left onto East State Street, passed the black Mustang, and proceeded to a

red light at the intersection of East State Street and Bienterra Trail. Defendant said there were no

other cars on East State Street between Bienterra Trail and the next traffic light, at Trainer Road.

Defendant waited in the middle lane, and the black Mustang stopped directly behind him. Defendant

said that he had never seen the black Mustang before and had no idea who was driving the vehicle.

According to defendant, "[the driver of the black Mustang] revved his engine at [defendant], or just

revved his engine." When the light turned green, defendant "took off kind of fast." About half-way

to Trainer Road, defendant looked in his mirror and noticed the black Mustang merge into the left

lane and then accelerate past the left side of his vehicle. As the black Mustang "came flying by" him,

defendant accelerated. When asked why he accelerated, defendant said "[s]tupid, showing off."

1
Documents in the record indicate that defendant's date of birth is September 26, 1983. Thus,

defendant was 19 years of age on the date of the accident.

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Defendant said the black Mustang was probably three or four car lengths ahead of him when he hit

the gas. Defendant denied racing the black Mustang. Before defendant reached the intersection of

East State Street and Trainer Road, a white Cavalier turned right from Trainer Road and headed east

on East State Street, in the right lane. Next, the white Cavalier moved into the center lane and then

into the left lane. Defendant said the black Mustang almost hit the white Cavalier and passed from

left to right in front of his vehicle before losing control and going down into the ditch. According to

defendant, the black Mustang passed in front of him and lost control about three or four car lengths

ahead of his vehicle. Defendant slowed down, moved into the right lane, and then turned right onto

Mid America Drive. Defendant denied locking up his wheels or skidding his tires.

Defendant said he stopped his vehicle and walked over to the hill on the east side of Mid

America Drive. Defendant called 911 and learned that the police were already on their way. When

someone asked where the other car was, defendant said "there was no other car." Next, a lady came

up to defendant and screamed that he and the black Mustang had been racing. Defendant tried to tell

the lady that that was not what happened, but she kept screaming at him. Defendant said it "just

scared the crap out of [him]," so he left. Before he left, defendant heard a person suggest that

someone get his license plate number because "they were racing." Defendant said he was at the

accident scene for three to five minutes. Defendant explained that he left before the police arrived,

because he was "just petrified from this lady screaming at [him][,] and what [he] saw, it was just

horrible." Defendant said he did not believe that he was involved in the accident and did not call the

police within one hour of the accident. Defendant agreed that he was probably speeding on East

State Street that afternoon. Defendant said it was possible that he was going 60 miles per hour, but

not 80 to 100 miles per hour.

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The jury found defendant not guilty of aggravated reckless driving but guilty of drag racing

and leaving the scene of a motor vehicle accident involving death. After hearing and denying

defendant's posttrial motion, the trial court sentenced defendant to a two-year term of conditional

discharge. This appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Defendant contends that the State failed to prove beyond a reasonable doubt that he was

"involved in a motor vehicle accident," because he was not a proximate cause of the accident resulting

in Jason Rush's death. In response, the State maintains that the evidence was sufficient to prove that

defendant was involved in the accident because drag racing was the cause of the accident and

defendant was involved in the drag race.

Subsections (a) and (b) of section 11--401 of the Vehicle Code, entitled "Motor vehicle

accidents involving death or personal injuries," provide:

"(a) The driver of any vehicle involved in a motor vehicle accident resulting in

personal injury to or death of any person shall immediately stop such vehicle at the scene of

such accident, or as close thereto as possible and shall then forthwith return to, and in every

event shall remain at the scene of the accident until the requirements of Section 11--403 have

been fulfilled. Every such stop shall be made without obstructing traffic more than is

necessary.

(b) Any person who has failed to stop or to comply with the requirements of

paragraph (a) shall, as soon as possible but in no case later than one hour after such motor

vehicle accident, or, if hospitalized and incapacitated from reporting at any time during such

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period, as soon as possible but in no case later than one hour after being discharged from the

hospital, report the place of the accident, the date, the approximate time, the driver's name

and address, the registration number of the vehicle driven, and the names of all other

occupants of such vehicle, at a police station or sheriff's office near the place where such

accident occurred. No report made as required under this paragraph shall be used, directly

or indirectly, as a basis for the prosecution of any violation of paragraph (a)." 625 ILCS

5/11--401(a), (b) (West 2002).

When a court reviews the sufficiency of the evidence, the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106 Ill. 2d

237, 261 (1985). Under this standard, a reviewing court must construe all reasonable inferences from

the evidence in favor of the prosecution. People v. Bush, 214 Ill. 2d 318, 326 (2005). The issue in

this case is whether the evidence presented at trial was sufficient to meet the "involved in a motor

vehicle accident" element of the offense of leaving the scene of an accident involving the death of a

person. The interpretation of the essential elements of a criminal offense presents an issue of

statutory construction. The cardinal rule of statutory construction is to give effect to the true intent

of the legislature. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The best indication of the

legislature's intent is the language of the statute itself. Whitney, 188 Ill. 2d at 97. There is no rule

of construction that allows a court to declare that the legislature did not mean what the plain language

of the statute imports. People v. Woodard, 175 Ill. 2d 435, 443 (1997). Thus, "[w]here the statutory

language is clear, it will be given effect without resort to other aids for construction." People v.

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Hickman, 163 Ill. 2d 250, 261 (1994). Questions of statutory construction are reviewed de novo.

People v. Davis, 199 Ill. 2d 130, 135 (2002).

In support of his contention that the evidence was insufficient, defendant asks us to adopt the

interpretation of the phrase "involved in a motor vehicle accident" in the dissenting opinion to this

court's decision in People v. Kerger, 191 Ill. App. 3d 405 (1989). The essential facts and holdings

of Kerger follow.

In Kerger, testimony at a bench trial established that a pedestrian attempting to cross the road

was struck by the left side of the defendant's vehicle, appeared to tumble or fall, and was hit head on

by the vehicle following directly behind the defendant's vehicle. Kerger, 191 Ill. App. 3d at 407. The

pedestrian died as a result of the injuries sustained in the accident. Kerger, 191 Ill. App. 3d at 407.

The defendant testified that she observed the pedestrian crossing the road toward her vehicle, was

forced to swerve sharply to the right to avoid hitting the pedestrian, and "heard a 'thump' toward the

rear of her vehicle." Kerger, 191 Ill. App. 3d at 407. The defendant testified that she did not know

if the pedestrian came in contact with her vehicle, but shortly after the accident a witness heard her

say, "[M]y God, I hit him; I can't believe I hit him." Kerger, 191 Ill. App. 3d at 408. In finding the

defendant guilty of violating section 11--401, the trial court found that the defendant did not actually

make contact with the pedestrian with her vehicle, ruled that contact was unnecessary to constitute

involvement in an accident, and concluded that the defendant was involved in the accident within the

meaning of section 11--401 of the Vehicle Code. Kerger, 191 Ill. App. 3d at 408.

On appeal, the defendant in Kerger contended, among other things, that "because there was

no physical contact between her vehicle and the pedestrian nor 'substantial implication or connection'

between her vehicle and the pedestrian she was not 'involved' in a motor vehicle accident." Kerger,

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191 Ill. App. 3d at 408. In rejecting the defendant's contention, the majority in Kerger held that there

need not be physical contact with the driver's vehicle for a driver to be deemed to have been "involved

in a motor vehicle accident" within the meaning of section 11--401. Kerger, 191 Ill. App. 3d at 409-

10. In support of its conclusion, the majority cited opinion No. S--1430 of the Illinois Attorney

General (1979 Ill. Att'y Gen. Op. 57). The majority noted that "[t]he words 'involved in an accident'

within the statute were construed by the Attorney General to mean 'implicated in an accident or

connected with the accident in a substantial manner.' " Kerger, 191 Ill. App. 3d at 410, quoting 1979

Ill. Att'y Gen. Op. at 59. The majority emphasized that it was unnecessary to determine, for purposes

of deciding whether the defendant was involved in a motor vehicle accident, whether the defendant

caused or was at fault for the accident. Kerger, 191 Ill. App. 3d at 410-11. The majority concluded

that under the facts of the case before it, the "defendant was 'involved in a motor vehicle accident.' "

Kerger, 191 Ill. App. 3d at 410.

The dissenting justice believed that the majority interpreted section 11--401 too broadly.

Kerger, 191 Ill. App. 3d at 412 (McLaren, J., dissenting). The dissent proposed the following

interpretation of the "involved in a motor vehicle accident" language of section 11--401:

"I believe the intent of the legislature was that any individual who drove a motor vehicle and

who may have been the proximate cause or a proximate cause, or who made contact with any

other vehicle, person, or other instrumentality which was involved in the auto accident is

required to stop and give information as required under sections 11--401(b) and 11--403 of

the Code." Kerger, 191 Ill. App. 3d at 414 (McLaren, J., dissenting).

We decline defendant's invitation to adopt the interpretation of the statute advanced by the

dissenting justice in Kerger, and we continue to adhere to the "substantial implication or connection

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with the accident in a substantial manner" definition of the phrase "involved in a motor vehicle

accident" that was cited by the Kerger majority. Our function is to enforce the statute as enacted.

People v. O'Malley, 356 Ill. App. 3d 1038, 1044 (2005). The Kerger majority's definition is in

keeping with the plain meaning rule. Among the common definitions of the term "involved" are

"implicated" (Webster's Third New International Dictionary 1191 (1993)) and "connected by

participation or association" (The American Heritage Dictionary of the English Language 950 (4th

ed. 2000)).

Moreover, if, as urged by the dissent in Kerger, the General Assembly intended that, in the

absence of contact, the driver needs to be a proximate cause of the accident in order to be "involved

in a motor vehicle accident," it would have explicitly so stated in section 11--401(a). The General

Assembly has used the term "proximate cause" in criminal statutes where it deemed the concept

appropriate. See, e.g., 625 ILCS 5/11--501(d)(1)(C) (West 2002) (aggravated driving under the

influence of alcohol, involving a motor vehicle accident that resulted in great bodily harm or

permanent disability or disfigurement to another, when the violation was a proximate cause of the

injuries); 625 ILCS 5/11--501(d)(1)(E) (West 2002). In choosing the word "involved," the General

Assembly exhibited an intent to assign to all drivers connected to motor vehicle accidents the duties

of stopping, rendering aid, and providing information, without regard to fault.

Furthermore, the definition of the term "involved" advanced by the majority in Kerger is

consistent with the weight of authority of other jurisdictions interpreting similar language in similar

statutes. Contrary to the interpretation advanced by the dissenting justice in Kerger, that weight of

authority has held that a person can be "involved in" an accident without being a legal or proximate

cause of the accident. State v. McDonnell, Nos. CR.A. 05--11--1879, CR.A. 05--11--1880, CR.A.

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05--11--1881, 0511017233 cons. (March 23, 2006) ("involved in an accident" means being connected

with an accident in a natural or logical manner or implicated in or entangled with the final event, even

if not the proximate cause of the accident); People v. Oliver, 242 Mich. App. 92, 97, 617 N.W.2d

721, 724 (2000) (motorist is "involved in an accident" if evidence demonstrates that the motorist was

implicated in or connected with the accident in a logical or substantial manner; driver need not have

caused accident in order to have been "involved in" accident); State v. Simpson, 160 Vt. 220, 223-24,

627 A.2d 346, 349 (1993) (statute applies not only to those persons whose conduct was the

proximate cause of the accident, but also to those persons whose actions were precipitating or

contributing factors to the accident); State v. Carpenter, 334 N.W.2d 137, 140 (Iowa 1983) (statute

does not require a collision between the driver's vehicle and another vehicle or person and does not

require that the driver's conduct be a proximate cause of the accident; "involved" means "to relate

closely"); People v. Bammes, 265 Cal. App. 2d 626, 636, 71 Cal. Rptr. 415, 422 (1968) (one is

involved in an accident when one is "connected with (an accident) in a natural or logical manner," and

one can be involved in an accident without being its legal cause).

In this case, after hearing the evidence presented at trial, the jury concluded that the State had

proven beyond a reasonable doubt that defendant and Jason Rush were drag racing.

" 'Drag racing' means the act of 2 or more individuals competing or racing on any

street or highway in this State in a situation in which one of the motor vehicles is beside or

to the rear of a motor vehicle operated by a competing driver and the one driver attempts to

prevent the competing driver from passing or overtaking, either by acceleration or maneuver,

or one or more individuals competing in a race against time on any street or highway in this

State." 625 ILCS 5/11--504 (West 2002).

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Irrespective of whether defendant's conduct in this case was a factual, legal, or proximate cause of

Jason Rush's death, the circumstance that defendant was engaged in a drag race on a public street

during which defendant's opponent encountered another vehicle at such a high rate of speed that he

could not avoid colliding with that vehicle without losing control and crashing was sufficient to

establish that defendant was implicated in the accident or connected with the accident in a substantial

manner. Thus, the State proved beyond a reasonable doubt that defendant was "involved in a motor

vehicle accident" within the meaning of that language in section 11--401.

B. As-Applied Constitutional Challenge to Section 11--401

Defendant does not maintain that he complied with the requirements of subsection (a) or (b)

of section 11--401 but, rather, contends that the statute is unconstitutionally vague as applied to his

conduct in this case. Specifically, defendant argues that the language "involved in a motor vehicle

accident" is vague and ambiguous with respect to his conduct, because an ordinary person could not

ascertain whether his conduct constituted involvement in a motor vehicle accident. Defendant argues

further that, because he did not make physical contact with Jason Rush's automobile and was not the

proximate cause of the accident, the statute did not provide a clear standard as to whether he was

"involved in a motor vehicle accident." In response, the State submits that the language "involved

in a motor vehicle accident" is not vague when applied to defendant's conduct. The State argues that

a person of ordinary intelligence would know that the driver of a vehicle drag racing with another

vehicle at the time the other vehicle goes out of control and crashes, resulting in the death of the

driver of the other vehicle, was "involved" in the accident. We agree with the State.

Statutes are presumed to be constitutional, and the party challenging the validity of the statute

has the burden to clearly establish its constitutional invalidity. People v. Wilson, 214 Ill. 2d 394, 398-

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99 (2005). We must construe a statute so as to affirm its constitutionality, if the statute is reasonably

capable of such a construction. Wilson, 214 Ill. 2d at 399.

"A defendant can challenge a statute as unconstitutionally vague in two ways: (1) on the

statute's face, or (2) as the statute is applied to defendant's actions." People v. Einoder, 209 Ill. 2d

443, 448 (2004). A facial challenge seeks to invalidate the statute itself. "A statute [that] is facially

invalid has no force and effect upon any person or entity regardless of the specific circumstances"

(People v. Nance, 189 Ill. 2d 142, 146 (2000)), and, therefore, the State may not enforce the statute

under any circumstances. In contrast, in an "as-applied" challenge, the party challenging the statute

contends that the application of the statute in the particular context in which the challenger has acted,

or in which he proposes to act, would be unconstitutional. An "as-applied" challenge requires a party

to show that the statute violates the constitution as the statute applies to him. People v. Garvin, 219

Ill. 2d 104, 117 (2006). If a statute is unconstitutional as applied, the State may continue to enforce

the statute in circumstances where it is not unconstitutional. In his appellate brief, defendant

explicitly states that he is challenging the statute as applied to his conduct.

"In cases that do not involve first amendment freedoms, due process is satisfied if: (1) the

statute's prohibitions are sufficiently definite, when measured by common understanding and

practices, to give a person of ordinary intelligence fair warning as to what conduct is

prohibited, and (2) the statute provides sufficiently definite standards for law enforcement

officers and triers of fact that its application does not depend merely on their private

conceptions." Wilson, 214 Ill. 2d at 399, citing People v. Falbe, 189 Ill. 2d 635, 639-40

(2000).

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The proscription of a criminal statute must be clearly defined and provide a sufficiently definite

warning of the prohibited conduct as measured by common understanding and practices. People v.

Jihan, 127 Ill. 2d 379, 385 (1989). A criminal statute must be definite so that a person of ordinary

intelligence will have a reasonable opportunity to know what conduct is prohibited. Jihan, 127 Ill.

2d at 385. If the defendant's conduct clearly falls within the statute's proscriptions, prosecuting him

does not offend due process even though the statute might be vague as to other conduct in other

circumstances. Wilson, 214 Ill. 2d at 399.

Applying the two-part analysis outlined above, we cannot agree with defendant's contention

that the statutory language, "involved in a motor vehicle accident," is unconstitutionally vague as

applied to his situation. First, we hold that the language is definite enough, when measured by

common understanding and practices, to afford a person of ordinary intelligence in defendant's

position with fair warning of his duties. Where statutory terms are not defined in the statute, they are

given their ordinary and popularly understood meanings. People v. Bailey, 167 Ill. 2d 210, 229

(1995). As noted above, the plain and ordinary meaning of "involved in a motor vehicle accident"

is a substantial implication or connection with the accident in a substantial manner. A reasonable

person of ordinary intelligence in defendant's position would have concluded that he was implicated

in or substantially connected with the motor vehicle accident that occurred during the drag race in

which he was participating. Drag racing participants intentionally foster a dangerous environment

of excessive speed and reckless driving and are thus almost always connected with accidents that

occur with participants or other motorists during the race. A person of ordinary intelligence, as a

driver engaged in an impromptu drag race on a public street, whose opponent, due to excessive

speed, loses control of his vehicle while avoiding a collision with another motorist, would conclude

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that he was implicated in or substantially connected with the accident. In fact, defendant's trial

testimony that he did not believe that he was involved in the accident is belied by his testimony as to

the circumstances surrounding the crash. After the driver of the black Mustang revved his engine at

defendant, defendant took off "kind of fast," and defendant engaged the driver of the black Mustang

in a speed contest when he accelerated after the black Mustang overtook defendant's vehicle.

Furthermore, Tammy Rezin testified that defendant, in response to her accusation that defendant and

Jason Rush were racing, said "we couldn't have been going more than 50 miles an hour." This

response demonstrates his contemporaneous understanding that he and Jason Rush were connected

in some way prior to the accident. The foregoing conduct showed that defendant believed he was,

and in fact was, implicated in the accident or connected with the accident in a substantial manner.

Second, as applied to the facts of this case, section 11--401 provides sufficiently definite

standards for law enforcement and triers of fact such that its application does not depend only on their

private conceptions. During the course of this investigation, police learned that defendant and Jason

Rush were drag racing at a speed in excess of 80 miles per hour when Jason Rush had to take evasive

action to avoid Jody Gaunt's Cavalier, which led to an accident resulting in Jason Rush's death.

Under these circumstances, any law enforcement officer or trier of fact would understand that

defendant was implicated in the accident or was connected with the accident in a substantial manner

such that section 11--401 applied, and they would not have to rely on private conceptions as to what

constitutes being "involved in a motor vehicle accident." Defendant's conduct in this case clearly

invoked the duties of section 11--401. Thus, prosecuting him does not offend due process on

vagueness grounds even though the statute might be vague as to other conduct in other circumstances

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(Wilson, 214 Ill. 2d at 399). Accordingly, we conclude that defendant has failed to establish that the

statute is unconstitutionally vague as applied to his conduct in this case.

C. As-Applied Challenge to Section 11--401(b) on Fifth Amendment Grounds

Defendant's third appellate contention is that, as applied to his conduct, section 11--401(b)

violated his constitutional privilege against self-incrimination,2 because the mandatory reporting

requirements of section 11--401(b) exposed him to criminal liability for failing to divulge

incriminating information that could have been used against him. In response, the State argues that

defendant has failed to show that there would have been any real or substantial risk of self-

incrimination had he complied with the statute. We agree with the State.

The fifth amendment to the United States Constitution states that "[n]o person *** shall be

compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. A

communication must be testimonial, incriminating, and compelled in order to qualify for the fifth

amendment protection. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 189, 159 L.

Ed. 2d 292, 305, 124 S. Ct. 2451, 2460 (2004). "[T]he Fifth Amendment privilege against

compulsory self-incrimination 'protects against any disclosures that the witness reasonably believes

could be used in a criminal prosecution or could lead to other evidence that might be so used.' "

2
Defendant does not specify whether his contention is that the federal, the state, or both

constitutional provisions protecting against compelled self-incrimination were violated by operation

of section 11--401(b). Nevertheless, because our supreme court has interpreted article I, section 10,

of the Illinois Constitution in lockstep with the fifth amendment to the United States Constitution (see

People v. Caballes, 221 Ill. 2d 282, 301 (2006)), our analysis would be the same under either

provision.

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Hiibel, 542 U.S. at 190, 159 L. Ed. 2d at 305, 124 S. Ct. at 2460, quoting Kastigar v. United States,

406 U.S. 441, 445, 32 L. Ed. 2d 212, 217, 92 S. Ct. 1653, 1656 (1972).

In rejecting a facial challenge to a California statutory requirement that motorists who have

been involved in an accident must stop at the scene and give their names and addresses, the United

States Supreme Court held in California v. Byers, 402 U.S. 424, 29 L. Ed. 2d 9, 91 S. Ct. 1535

(1971), that disclosure of one's identity is not a self-incriminating act. Similarly, in People v. Lucus,

41 Ill. 2d 370, 372 (1968), our supreme court held that a former statute requiring that a driver

involved in an accident resulting in damage to a vehicle provide his name, address, and registration

number to persons in the other vehicle (Ill. Rev. Stat. 1965, ch. 95½, par. 134) did not violate the

fifth amendment, because "the statute's provisions do not present a substantial and real hazard of

incrimination." Lucus, 41 Ill. 2d at 374. The court noted that the act of identification, by itself, in

no way relates to the circumstances of the accident or provides information concerning the details of

the event. Lucus, 41 Ill. 2d at 374.

In mounting his as-applied challenge to section 11--401(b), defendant directs our attention

to the United States Supreme Court's decision in Hiibel wherein the Court rejected an as-applied

challenge to a Nevada law requiring subjects of Terry stops to state their names. The Court held that

Hiibel's "refusal to disclose his name was not based on any articulated real and appreciable fear that

his name would be used to incriminate him, or that it 'would furnish a link in the chain of evidence

needed to prosecute' him." Hiibel, 524 U.S. at 190, 159 L. Ed. 2d at 305, 124 S. Ct. at 2461, quoting

Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 1124, 71 S. Ct. 814, 818 (1951).

However, the Court noted:

"[A] case may arise where there is a substantial allegation that furnishing identity at the time

of a stop would have given police a link in the chain of evidence needed to convict the

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individual of a separate offense. In that case, the court can then consider whether the

privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow."

Hiibel, 524 U.S. at 191, 159 L. Ed. 2d at 306, 124 S. Ct. at 2461.

Defendant maintains that this case illustrates a factual situation in which section 11--401(b) posed a

real danger of self-incrimination because the statute obligated him to admit to the police that he was

involved in an accident resulting in someone's death where such admission could be used against him

in a prosecution for the separate offense of aggravated reckless driving, an offense requiring proof

that the reckless driving caused great bodily harm or permanent disability or disfigurement to another

(625 ILCS 5/11--503(c) (West 2002); Illinois Pattern Jury Instructions, Criminal, No. 23.31X (4th

ed. 2000)). Defendant argues that he reasonably believed that providing the information required by

section 11--401(b) could be used in a criminal prosecution. Specifically, defendant argues that if he

admitted to being involved in the accident, the trier of fact could then infer that he admitted causing

the accident, and thereby conclude that the State established an essential element of the separate

offense of aggravated reckless driving. For the reasons that follow, we conclude that any belief on

defendant's part that his compliance with section 11--401(b) would result in his providing statements

that could be used against him in a criminal prosecution or lead to other evidence that might be so

used was not reasonable.

Defendant has not established that reporting to the police the place of the accident, the date,

the approximate time, his name and address, the registration number of his vehicle, and the names of

all other occupants in his vehicle at the time of the accident, in compliance with section 11--401(b),

would have incriminated him in a criminal proceeding on a separate offense. In light of our

conclusion that the plain meaning of the term "involved" in section 11--401 is "implicated in or

connected with the accident in a substantial manner," defendant has not convinced us that an inference

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of some level of causation would be reached from an admission of involvement. As noted in the first

section of our analysis, a person can be "involved in a motor vehicle accident" even where he or she

was not a cause of the accident. It is unnecessary to determine, for purposes of deciding whether a

defendant was involved in a motor vehicle accident, whether the defendant caused or was at fault for

the accident. Kerger, 191 Ill. App. 3d at 410-11. "[Section 11--401(b)] does not concern itself with

how the accident came about." People v. Bennett, 329 Ill. App. 3d 502, 517 (2002). Therefore,

contrary to defendant's argument, a person who admits involvement in an accident does not also

admit that he or she caused the accident. Accordingly, defendant's compliance with section 11--

401(b), resulting in an implied admission of involvement in the motor vehicle accident, would not

have amounted to a real danger of self-incrimination or provided the State with a link in the chain of

evidence needed to prosecute him for the separate offense of aggravated reckless driving.

Aside from our conclusion that defendant has not demonstrated that compliance with section

11--401(b) would have incriminated him, we note that the Court in Byers rejected an argument

similar to the one made by defendant, on the ground that an inference of involvement was not

testimonial and therefore not protected by the fifth amendment:

"Respondent argues that since the statutory duty to stop is imposed only on the 'driver

of any vehicle involved in an accident,' a driver's compliance is testimonial because his action

gives rise to an inference that he believes that he was the 'driver of [a] vehicle involved in an

accident.' From this, the respondent tells us, it can be further inferred that he was indeed the

operator of an 'accident involved' vehicle. In Wade, however, the Court rejected the notion

that such inferences are communicative or testimonial. There the respondent was placed in

a lineup to be viewed by persons who had witnessed a bank robbery. At one point he was

compelled to speak the words alleged to have been used by the perpetrator. Despite the

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inference that the respondent uttered the words in his normal undisguised voice, the court

held that the utterances were not of a 'testimonial' nature in the sense of the Fifth Amendment

privilege even though the speaking might well have led to identifying him as the bank robber.

[Citation.] Furthermore, the Court noted in Wade that no question was presented as to the

admissibility in evidence at trial of anything said or done at the lineup. [Citation.] Similarly,

no such problem is presented here. Of course, a suspect's normal voice characteristics, like

his handwriting, blood, fingerprints, or body may prove to be a crucial link in a chain of

evidentiary factors resulting in prosecution and conviction. Yet such evidence may be used

against a defendant." Byers, 402 U.S. at 433, 29 L. Ed. 2d at 20, 91 S. Ct. at 1540.

We believe that the foregoing reasoning is applicable in this case and hold further that any inference

resulting from defendant's compliance with section 11--401(b) would not have been testimonial or

communicative and thus afforded protection under the fifth amendment.

Defendant also argues that danger of self-incrimination was further heightened because section

11--401(b) mandates reporting the requisite information to the police within one hour of the accident

and one hour was not enough time for him to consult with a lawyer or hire a lawyer to accompany

him to the police station. Defendant concludes that his being unrepresented, young, scared, and not

in custody and therefore not subject to being advised of his Miranda warnings, increased the chances

of the police extracting an incriminating statement from him. This argument is speculative. The

statute did not require defendant to make any statement to the police regarding the cause of the

accident or the events surrounding it. It is conjecture to conclude that defendant would not have had

enough time to obtain legal advice or would have been scared to talk to law enforcement personnel

at a police station or sheriff's office or that at 19 years of age he was particularly susceptible to a

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presumed police effort to extract incriminating information from him without needing to give him the

benefit of Miranda warnings.

In sum, defendant has failed to establish that, under the circumstances of this case, his

compliance with section 11--401(b) would have provided the State with incriminating information

in violation of his fifth amendment protection from compulsory self-incrimination. Consequently, we

reject defendant's as-applied challenge to the statute on fifth amendment grounds.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago County.

Affirmed.

GROMETER, P.J., and HUTCHINSON, J., concur.

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