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The People v. Niven

OCTOBER 30, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DAVID NIVEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JOHN T. DUFFY, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 24, 1971.

In a bench trial, the defendant, David Niven, was found guilty of violating chapter 95 1/2, § 228, Ill Rev Stats 1967, in that he was driving an overweight vehicle. On appeal, defendant contends (1) that he was not weighed at the nearest available scale, as required by statute, and that he rebutted the presumption that the scale used by the police officer in weighing his truck was accurate.

The statute in question is Ill Rev Stats, 95 1/2, § 229, which provides:

"(a) Any police officer having reason to believe that the weight of a vehicle and load is unlawful shall require the driver to stop and submit to a weighing of the same either by means of a portable or stationary scales. If such scales are not available at the place where such vehicle is stopped, the police officer shall require that such vehicle be driven to the nearest available scale that has been tested and approved by the Illinois Department of Agriculture."

On January 15, 1969, defendant, while driving his 1963 5-axle tractor and dump trailer on an interstate highway, was stopped by a State Police Officer, Billy L. Stanhouse. Defendant was directed to proceed to a weigh scale at Jousama Nautical Yard, 4.6 miles from the place where he was stopped. A nearer scale was located at the Kaiser Aluminum Company, 1.5 miles from the place of stoppage. Both scales were certified by the Illinois Department of Agriculture.

The scale at the Jousama Yard that was used to weigh the vehicle was a mechanical scale transmitting the weight of the vehicle to mechanical devices. Officer Stanhouse testified that before weighing the vehicle, he ascertained that the scale had a zero reading. He then weighed the vehicle and determined that the vehicle was 11,300 pounds overweight.

Defendant testified that on the day in question, prior to being stopped by Officer Stanhouse, he loaded his vehicle with stone at the Thornton Yard of the Material Service Corporation. A receipt was issued to him before he left, which showed that the vehicle was 4,400 pounds overweight.

The weighmaster of the Thornton Yard testified on behalf of defendant and stated that the Thornton Yard used electronic scales, and that the one used to weigh defendant's vehicle was installed in September 1968, and was certified by the Illinois Department of Agriculture in September 1968. He further testified as to tests for accuracy used at the Thornton Yard and that the scale used to weigh the defendant's vehicle on January 14, 1969, was so tested and found to be accurate.

Defendant initially contends that his vehicle was not weighed at the "nearest available scale," and as the statute was not complied with, the judgment of guilt should be reversed. Defendant asserts that the word "nearest," within the statute, was a mandatory direction and not directive, and the police officer had no discretion as to which scale was to be used. Defendant argues that this interpretation should be adopted since it is a penal statute and it must be strictly construed. Defendant's authorities include People v. Isaacs, 37 Ill.2d 205, 226 N.E.2d 38 (1967), and State v. Johnson, 43 Del. 294, 46 A.2d 641 (1946).

In People v. Isaacs, supra, the court stated (p 215):

". . . we must remember that we deal here with a penal statute and must construe it strictly in favor of the accused."

In State v. Johnson, supra, the defendant was arrested for drunken driving and was taken to a justice of the peace and was found guilty. The justice of the peace to whom he was taken was not the nearest to the point of arrest. The relevant statute read (p 641):

". . . it shall be the right and privilege of the person so arrested to have his or her case heard and determined by a Justice of the Peace whose regular office shall be nearest to the place where such person was arrested. It shall be a sufficient defense for any person arrested as aforesaid to show by one competent witness that there is in the State of Delaware, outside of the City of Wilmington, a Justice of the Peace whose regular ...


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