also concurring in part and dissenting in part:
I agree with the majority that defendant’s convictions for possession of title without complete assignment under section 4 — 104(a)(2) of the Vehicle Code (625 ILCS 5/4 — 104(a)(2) (West 1996)) must be reversed. However, I agree with Justice Miller’s partial dissent that defendant’s convictions for failure to keep records under sections 5 — 401.2(a) and (i) of the Vehicle Code (625 ILCS 5/5 — 401.2(a), (i) (West 1996)) should be affirmed. I write separately to express my rationale for finding section 5 — 401.2 constitutional.
The legislature is empowered to declare and define conduct constituting a crime, and to determine the nature and extent of the punishment. People v. Steppan, 105 Ill. 2d 310, 319 (1985). To satisfy due process, a criminal statute must be reasonably designed to remedy the evils that the legislature has determined constitute a threat to the public health, safety and general welfare. In re K.C., 186 Ill. 2d 542, 550-51 (1999). Chapter V of the Vehicle Code (625 ILCS 5/5 — 100 et seq. (West 1996)), which regulates automotive dealers, transporters, wreckers and rebuilders, and under which defendant is licensed, sets forth in considerable detail the findings and purpose underlying its mandatory licensing and record-keeping provisions:
“The General Assembly finds that: (1) crimes involving the theft of vehicles and their parts have risen steadily over the past years, with a resulting loss of millions of dollars to the residents of this State; (2) essential to the criminal enterprise of vehicle theft operations is the ability of thieves to transfer or sell stolen vehicles or their parts through legitimate commercial channels, making them available for sale to the automotive industry; (3) vehicle dealers, scrap processors, automotive parts recyclers, repairers and rebuilders who comprise the vast majority of the persons engaged in the automotive business in this State are frequently exposed to pressures and influences from motor vehicle thieves; (4) elements of organized crime are constantly attempting to influence businessmen engaged in the sale and repair of motor vehicles so as to further their own criminal interests; and (5) close and strict government regulation of vehicle dealers, scrap processors, automotive parts recyclers, repairers and re-builders will provide a system of tracking the flow of vehicles and their essential parts and therefore significantly reduce the numbers of vehicle-related thefts in this State. It is, therefore, the intent of the General Assembly to establish a system of mandatory licensing and record keeping which will prevent or reduce the transfer or sale of stolen vehicles or their parts within this State.” 625 ILCS 5/5 — 100—1 (West 1996).
The record-keeping requirements of section 5 — 401.2(a) are inextricably linked and rationally related to the evils sought to be remedied by the statute, i.e., “the transfer or sale of stolen vehicles or their parts.” The failure to maintain the required records facilitates the easy disposal of stolen vehicles, thereby thwarting the clear purpose of the statute. Consistent with this purpose, the record-keeping and penalty provisions of section 5 — 401.2 are expressly applicable only to certain persons required to be licensed under chapter V: new and used vehicle dealers (625 ILCS 5/5 — 101, 5 — 102 (West 1996)); automotive parts recyclers (like defendant), repairers and rebuilders (625 ILCS 5/5 — 301 (West 1996)); and out-of-state salvage vehicle buyers (625 ILCS 5/5 — 302 (West 1996)). 625 ILCS 5 — 401.2(a), (i) (West 1996).
Significantly, the application for a license as an automotive parts dealer must include a statement that the applicant understands chapters I through V of the Vehicle Code. See 625 ILCS 5/5 — 301(b)(7) (West 1996). The applicant must also supply detailed information on the ownership of the business. 625 ILCS 5/5 — 301(b)(3) (West 1996). The applicant must aver under oath that the principals in the business have not committed in the past three years any one violation of any one of the following acts: the anti-theft laws of the Vehicle Code (625 ILCS 5/4 — 101 et seq. (West 1998)); the “Certificates of Title” laws of the Vehicle Code (625 ILCS 5/3 — 100 et seq. (West 1998)); the “Offenses Against Registration and Certificates of Title Laws” of the Vehicle Code (625 ILCS 5/3 — 701 et seq. (West 1998)); the “Dealers, Transporters, Wreckers and Rebuilders” laws of the Vehicle Code (625 ILCS 5/5 — 100 et seq. (West 1998)); section 21 — 2 of the Criminal Code of 1961, entitled “Griminal trespass to vehicles” (720 ILCS 5/21 — 2 (West 1998)); or the Retailers’ Occupation Tax Act (35 ILCS 120/1 et seq. (West 1998)). 625 ILCS 5/5 — 301(b)(4) (West 1996). The applicant must further aver under oath that the principals in the business have not committed in any calendar year three or more violations of any one or more of the following acts: the Consumer Finance Act (111. Rev. Stat. 1983, ch. 17, par. 5601 et seq., repealed by Pub. Act 84 — 1004, § 9, eff. November 1, 1985); the Consumer Installment Loan Act (205 ILCS 670/1 et seq. (West 1998)); the Retail Installment Sales Act (815 ILCS 405/1 et seq. (West 1998)); the Motor Vehicle Retail Installment Sales Act (815 ILCS 375/1 et seq. (West 1998)); the Interest Act (815 ILCS 205/0.01 et seq. (West 1998)); the Illinois Wage Assignment Act (740 ILCS 170/.01 et seq. (West 1998)); part 8 of article XII of the Code of Civil Procedure, entitled “Wage Deductions” (735 ILCS 5/12— 801 et seq. (West 1998)); or the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1998)). 625 ILCS 5/5 — 301(b)(5) (West 1996). Finally, as part of the application process, the applicant “authorizes an investigation to determine if the applicant has ever been convicted of a crime and if so, the disposition of those convictions.” 625 ILCS 5/5 — 105 (West 1996).
The statutory scheme set forth above provides licensees with notice that the industry into which they are entering is subject to close scrutiny and regulation. This is not a recent and unexpected development in the law. The automobile and automotive parts industry in Illinois has long been the subject of extensive regulation. See People v. Krull, 126 Ill. 2d 235, 246 (1989), citing Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072, 1079 (7th Cir. 1983). Since 1934, the state has required licensure of automotive parts dealers (see Krull, 126 Ill. 2d at 246), and, since 1956, has imposed record-keeping requirements (see Bionic Auto Parts & Sales, Inc., 721 F.2d at 1079). In 1985, the legislature adopted measures to provide criminal sanctions for the failure to maintain adequate records. See Krull, 126 Ill. 2d at 246.
The legislature’s extensive findings and stated purpose in enacting chapter V of the Vehicle Code, and the obvious and intrinsic link between the record-keeping requirements and the statute’s purpose, along with the industry’s long history of regulation, compel a finding that section 5 — 401.2 is. constitutional. The majority, however, concludes that the knowing failure to keep the required records may constitute innocent conduct, and that section 5 — 401.2 thus suffers from the same defect as the statutes at issue in People v. Zaremba, 158 Ill. 2d 36 (1994), and People v. Wick, 107 Ill. 2d 62 (1985). I disagree because the circumstances in Zaremba and Wick are distinguishable from this case.
In Zaremba, we held that the following provision of the theft statute offends due process:
“A person commits theft when he knowingly:
* * *
(5) Obtains or exerts control over property in the custody of any law enforcement agency which is explicitly represented to him by any law enforcement officer or any individual acting in behalf of a law enforcement agency as being stolen.” Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(5). A violation of section 16 — 1(a)(5) involving property valued in excess of $300 was a felony offense. See Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(b)(4).
Unlike other provisions of the theft statute, section 16 — 1(a)(5) required neither that the control over the property was unauthorized, nor that there was an intent to permanently deprive the rightful owner of the subject property. See Ill. Rev. Stat. 1989, ch. 38, pars. 16 — 1(a)(1), (a)(2), (a)(3), (a)(4). Section 16 — 1(a)(5) could thus have been applied to conduct that was unrelated to the purpose of this statutory section, that being to provide an effective method of breaking up fencing operations. For example, section 16 — 1(a)(5) could have been applied to the wholly authorized and innocent conduct of an evidence technician who lawfully obtained possession of stolen goods from an arresting officer. In these circumstances, the absence of a culpable mental state rendered section 16 — 1(a)(5) of the theft statute unconstitutional. Zaremba, 158 Ill. 2d at 38-39, 42.
Our decision in Zaremba was guided by this court’s decision in People v. Wick, 107 Ill. 2d 62 (1985). In Wick, we held that the aggravated arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1.1(a)(3)) was unconstitutional because it did not bear a reasonable relationship to its purpose, i.e., to punish more severely the conduct of arsonists that results in personal injury to police officers and firefighters. The aggravated arson statute did not incorporate the elements of simple arson and did not otherwise provide for a culpable mental state. Rather than applying to arsonists, the aggravated arson statute applied to anyone who knowingly damaged any structure by fire or explosive where a police officer or firefighter is injured. Accordingly, a farmer who lawfully demolished a deteriorated barn by fire, resulting in injury to a firefighter, would have been liable for aggravated arson, a Class X felony. Thus, we held that the aggravated arson statute swept too broadly by punishing innocent as well as culpable conduct in setting fires. Wick, 107 Ill. 2d at 66.
In Zaremba and Wick, the subject statutes irrationally criminalized lawful conduct of innocent parties not intended to fall within the scope of the statutes. In contrast, section 5 — 401.2 of the Vehicle Code rationally criminalizes only the conduct of licensees participating in the automotive industry, and only that conduct which is obviously and closely linked to the state’s legitimate interest in preventing the transfer and sale of stolen vehicles and their parts. There is no potential that the statute will reach beyond its intended target. Thus, a knowing violation of the record-keeping requirements of section 5 — 401.2(a) is not the type of innocent conduct that was at issue in Zaremba and Wick.
In light of the foregoing, I would hold that section 5 — 401.2 of the Vehicle Code is reasonably designed to achieve its purpose, and that defendant has failed to overcome the presumption that the statute is constitutional. I would thus affirm defendant’s convictions for failure to keep records.