dissenting:
This appeal concerns only the offense of driving while defendant’s operator’s license was suspended and the 364-day sentence imposed for that offense. The defendant appeals the sentence only in connection with his other conviction of driving while under the influence. The sentence imposed for that offense was 364 days, the sentences being concurrent, although the trial court expressed regret that he could not make them consecutive.
As I view this record, an offense of driving while a license was suspended was not established and the sentences imposed were clearly and patently excessive. The majority opinion establishes an absolute liability offense and places the burden upon the defendant to negate guilt. The defendant is even denied credit for time served in jail prior to the commencement of the penitentiary sentence, although he asks for credit for time served and the State concedes the merit of the issue.
As I read the majority opinion, it affirms the defendant’s conviction for driving a motor vehicle in Illinois while his Illinois license to drive was suspended. As I read the State’s brief, the very first issue they tender is that the “defendant was proved guilty beyond a reasonable doubt of driving while his license was suspended where it was shown that he drove a motor vehicle while his Michigan license was suspended.” The State emphatically and expressly contends that the defendant’s alleged lack of knowledge of the suspension was irrelevant. It seems, therefore, that the majority opinion affirms the conviction for an offense different from the conviction as understood by the prosecution, a strange circumstance indeed.
It is necessary to recite the facts.
On September 30, 1978, the defendant was charged with driving while under the influence and driving while his license was suspended. The latter charge was made by a uniform traffic ticket alleging that the actions of the defendant were in violation of section 6 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 6 — 303).
At the bench trial, Officer Gary Dixon of the El Paso, Illinois, police department testified that in September of 1978 he saw the defendant’s vehicle on a street in El Paso. He said the automobile was being driven in excess of the speed limit. He followed it for several blocks, with his red lights on, but not his siren. At an intersection in the city, the driver of the car ran a stop sign. He ultimately stopped the car after pulling into a driveway. The officer came up to the car, asked the driver for his driver’s license and was handed a Michigan driver’s license. The officer further testified that he had to calm the defendant because he was hollering and was belligerent.
Harold Backer, a breathalyzer machine inspector for the State of Illinois, testified that he had certified a certain breathalyzer machine and that it was working properly. An operator, Susan Rixie, testified that she performed two breathalyzer tests on the defendant and that one showed .12% alcohol and the second test showed that he registered .13%. At the conclusion of the testimony of these witnesses, the People rested. The defendant objected to the People’s tender of exhibit No. 3, the defendant’s driving record from Michigan, on the basis of hearsay. The exhibit was admitted, as was exhibit No. 4, being a copy of an Illinois order of suspension entered January 5, 1971, and a certificate from the Secretary of State of Illinois that states that the defendant did not have a valid driver’s license on September 30, 1978. Exhibit No. 4, of course, relates to an Illinois driver’s license.
The defendant in this case testified indicating that he was 33 years old, worked on the night shift at Fabro in Gridley, Illinois. He had moved to his present address in El Paso, Illinois, on the date of the alleged violation.
At approximately 1:45 a.m. on that date, he entered his car and proceeded toward his new residence by a route substantially different from that testified to by Officer Dixon. When the defendant arrived at his address, he got out of his car and walked up to the trailer door, then proceeded back to his automobile to pick up some medication that he said he left in the car. He testified that he had not eaten and that he was taking the medication, the side effect of which was to make his speech slurred and his eyes appear to be glassy. The exchange between the defendant and the. officer at the time of the arrest relates primarily to the driving-while-under-the-influence charge which is not here contested. The only thing relevant to the issue of driving with a suspended license is that the defendant testified that on September 30 he did not know that his Michigan driver’s license was suspended. He further testified that in 1971 he did not notify the State of Illinois within 10 days after moving from his R.R. #1, Gridley, Illinois, address. The defendant testified further that he had never received a notification that his license had been suspended from the State of Michigan or from the State of Illinois.
The court found the defendant guilty of speeding, stop sign violation, driving under the influence, and driving while his license was suspended and proceeded, without objection, to sentencing. The State recommended a $25 fine for the stop sign violation, a $25 fine for the speeding violation, a $500 fine for the driving-while-under-the-influence violation, and a 7-day jail sentence for the offense of driving with a suspended license. Defense counsel interposed a further recommendation with reference to the jail sentence that the incarceration should be periodic so as to permit the defendant to continue his employment. The trial court, after listening to the recommendations and the discussion, imposed the fine for speeding, a $50 fine for the stop sign violation, and imposed two concurrent terms of 364 days in the penitentiary for the offense of driving under the influence of alcohol and driving while his license was suspended. The trial court,noted the background of the defendant with reference to traffic offenses and observed: “[F]rankly the Court is a little sorry that in the opinion of this Court the code of corrections prevents the Court from imposing a consecutive sentence on those offenses, 1005 — 8—4, shall not impose consecutive sentences for offenses which were committed as a part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. And mittimus shall issue.”
There is no evidence in this record that the defendant was given or received a notice of a suspension of his Michigan license. The only thing in the record relevant to that issue is the defendant’s testimony that he did not. It appears to be the thrust of the majority opinion that the defendant can be found guilty and that knowledge of the suspension was irrelevant. At least that is the burden of persuasion undertaken by the State in its brief.
If that is the contention, it is, I believe, clearly contrary to the express holding of the Illinois Supreme Court in People v. Nunn (1979), 77 Ill. 2d 243, 396 N.E.2d 27. In that case, the court specifically held, contrary to the People’s contention here, that knowledge was a necessary ingredient of an offense wherein incarceration is sought to be imposed as a penalty. The offenses under discussion in Nunn related to section 11 — 401 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11 — 401) and driving with a suspended license under the statute involved here, section 6 — 303 (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 6 — 303). The discussion in Nunn with reference to absolute liability offense and the necessary element of knowledge seemed applicable to both offenses. Express holding of the court was:
“We consider that to show a violation of section 11 — 401 the prosecution is required to prove that the accused had knowledge that the vehicle he was driving was involved in an accident or collision. We do not, however, hold that it is necessary for the prosecution to show also that the accused knew that injury or death resulted from the collision. To require this additional proof would impose a burden that would be unrealistically difficult to sustain and would tend to defeat the public interest which is served by requiring persons involved in vehicle collisions to stop and provide identification and other personal information and to be available to render assistance if required.” 77 Ill. 2d 243, 252, 396 N.E.2d 27,31.
The offense of driving with a suspended license is not established. I would reverse that conviction, vacate the sentence imposed, and remand for a new sentencing hearing on the conviction for driving under the influence. The record here indicates that the defendant was in the penitentiary for 4M months prior to his release on bail by order of this court. As an alternative, we should consider reducing the sentence to time served.