APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
540 N.E.2d 1106, 184 Ill. App. 3d 712, 133 Ill. Dec. 240 1989.IL.972
Appeal from the Circuit Court of Du Page County; the Hon. Perry Thompson, Judge, presiding.
JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Defendant, Jon D. Angell, after a bench trial in the circuit court of Du Page County, was found guilty and fined $500 for the offense of transporting alcoholic liquor in a motor vehicle. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-502(a).) Defendant filed a timely notice of appeal. Defendant argues he was not proven guilty beyond a reasonable doubt.
There were no verbatim transcripts of defendant's trial, and the following facts come from the brief bystanders' reports of defense counsel and the State's Attorney filed by defendant pursuant to Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)).
Officer McGrath of the Naperville police department testified that he was on duty September 28, 1987. At 12:43 a.m. Officer McGrath effectuated a traffic stop on defendant's vehicle at North Aurora Avenue and Route 59. Officer McGrath, at trial, identified defendant as the driver of the vehicle and Tim Gabrielson as the person seated in the front passenger seat. Officer McGrath smelled alcohol emanating from the vehicle, and while looking into the vehicle from the passenger's side, he saw two open Budweiser beer cans in plain view. Officer McGrath seized the two beer cans, each of which contained liquid. Officer McGrath, after stating that he had smelled beer on hundreds of prior occasions, testified that in his opinion the liquid in the cans was beer. While Officer McGrath had placed some of the liquid from each can in vials for later laboratory analysis, no analysis had been performed, and the State only introduced the two beer cans into evidence and relied solely on Officer McGrath's testimony to establish the contents of the cans at the time of the traffic stop. Officer McGrath further testified that defendant did not admit to any drinking, although he stated that he and his passenger had been to a sport's attraction at the Rosemont Horizon. Further, defendant was administered and passed a field sobriety test and was not charged with driving under the influence.
Defendant testified that he did not know the beer cans were in the car and did not have possession of the cans. Defendant's passenger, Tim Gabrielson, testified that he had possession of the cans and that defendant neither knew nor had possession of the beer cans. The passenger further testified that he had pled guilty to the possession of the beer cans.
On appeal, defendant attacks the sufficiency of the evidence. Defendant argues the State failed to prove beyond a reasonable doubt that defendant knowingly possessed open beer cans in his vehicle. First, we address the specific nature of the acts involved in the offense with which defendant was charged by the State and convicted of by the trial court to determine if knowledge and possession are elements of the crime charged. Defendant, as the driver of the vehicle, was charged with the offense of transporting alcohol in an open container in the passenger area of a motor vehicle upon the highways of this State. (See Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-502(a).) Defendant was not charged with possession of alcohol in an open container. Section 11-502 of the Illinois Vehicle Code (Code) provides in relevant part:
"Transportation or possession of alcoholic liquor in a motor vehicle. (a) Except as provided in paragraph (c), no driver may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.
(b) Except as provided in paragraph (c), no passenger may carry, possess or have any alcoholic liquor within any passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 11-502(a), (b).)
A plain and ordinary reading of this statute indicates that the legislature intended that the driver of a vehicle, as opposed to the passenger, may violate the statute by the act of transporting open alcohol in the passenger area of a vehicle, irrespective of whether the driver possessed, carried, or had open alcohol in the passenger area. (Sostak v. Sostak (1983), 113 Ill. App. 3d 954, 447 N.E.2d 1345 (in determining intention of legislature, the statutory language should be given its plain and ordinary meaning).) Contrary to defendant's argument on appeal, there is no requirement that defendant physically or constructively possessed the beer cans where defendant, as a driver of the vehicle, was charged and convicted of transporting open beer cans in a vehicle, not of possessing open beer cans. The issue on review is whether the evidence was sufficient to convict defendant of illegal transportation of alcohol.
Defendant also contends that the evidence was insufficient to prove that he knowingly violated section 11-502 of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-502). The State argues that proof of knowledge is not required, but that section 11-502 creates an absolute liability offense. (See People v. Graven (1984), 124 Ill. App. 3d 990, 464 N.E.2d 1132 (knowledge is not a required element in illegal transportation of alcohol offense).) This district has not yet had the opportunity to address whether the prosecution of ...