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November 13, 1995



As Corrected November 22, 1995.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

Lance Avery was charged with 12 counts of driving under the influence of alcohol. Each count was a felony charge. The trial court barred his proposed insanity defense, ruling that the statute created an absolute liability offense that did not require any mental state. Avery was convicted in a bench trial and sentenced to 16 months in prison.

This case required us to answer two questions. First, is the felony charge of driving under the influence of alcohol an absolute liability offense? Second, if it is, does that violate the defendant's constitutional right to due process of law?

We affirm the defendant's conviction and sentence.


On June 16, 1991, at about 11:20 p.m., Illinois State Trooper Robert Love arrived at the scene of a two-vehicle car accident in the northbound lanes of Interstate 294, at mile post 10. When he arrived he saw a maroon-colored Chevy Malibu in the grassy ditch on the right-hand side of the road and a gray Chevy Suburban van, upside-down, on the right-hand shoulder. Two females were lying on the grass near the Malibu, both were bleeding and appeared injured. A man was walking around in the area of the Malibu.

Trooper Love first went to the Malibu to check the seriousness of the victims' injuries. One of the women, Mara Miskien, identified herself as the driver of the Malibu. She told Trooper Love that the Malibu had broken down so she pulled off to the right shoulder of the highway. While she, her husband, and another woman sat in the disabled car, it was struck from behind.

When Trooper Love approached the overturned van, he found a man lying half inside and half outside the vehicle. He spoke with this individual, later identified as defendant Lance Avery (Avery), and noticed that Avery's breath smelled strongly of alcohol, his eyes were glassy, and his speech slurred. Avery sometimes mumbled incoherently in response to questions, but confirmed that he had been the driver of the van. He couldn't say how the accident happened.

Ambulances arrived on the scene. While the medical personnel attended to the accident victims, Trooper Love investigated. He noted that the night was clear, the road was dry, and the section of the highway where the accident occurred was straight and level. The Malibu sustained damages to the rear-end, but not to the front. The van sustained damages to the right front, not the rear. This damage pattern was consistent with a rear-end collision as reported by Miskien. Trooper Love also noted that the Malibu's emergency flashers were operating and there was no evidence of skid marks on the highway prior to the point of impact, which was determined by a fresh gouge mark in the shoulder.

Based on this information, Trooper Love informed Avery at the scene that he was under arrest for driving under the influence of alcohol. Avery was then taken to Christ Hospital, where two vials of blood were drawn in accordance with Illinois standards and procedures and under Trooper Love's supervision. The sealed vials were taken to the Illinois State Crime Lab by Trooper Love. Analysis of the blood indicated that the alcohol content was .288 grams per deciliter.

Defendant was later charged by information with twelve (12) counts of driving under the influence of alcohol in violation of Ill. Rev. Stat. 1989, ch. 95 1/2, par. 11-501(a)(1)(d)(3), now 625 ILCS 5/11-501(a)(1)(d)(3) (West 1992). Each count was a felony charge.

On November 22, 1991, Avery filed a motion to quash arrest and suppress evidence, alleging that there was no probable cause for his arrest. A hearing was held on June 2, 1992. The motion was denied.

In October 1992, defense counsel notified the State that he intended to raise the affirmative defense of insanity to the charges against Avery. In response, the State filed a motion in limine to bar the defense. The State argued that the charge of aggravated driving under the influence of alcohol, although a class 4 felony, is an absolute liability offense. The trial court agreed and granted the motion to bar the defense.

On November 30, 1993, defendant agreed to a bench trial at which all of the evidence was presented by way of stipulation. Defendant moved for a directed verdict at the close of the State's evidence. The trial court denied the motion.

Defendant then made an offer of proof with regard to his defense of insanity. Defense counsel offered to show that he would have presented the testimony of one surgeon, one psychiatrist, and three psychologists, including Avery's treating psychologist. All of these experts would testify that Avery suffered from a mental disorder known as post traumatic stress disorder as a result of his involvement in the Persian Gulf War as an army reservist. The surgeon, a psychologist, and the treating psychologist would further postulate that in June 1991 Avery was unable "to conform his behavior to his understanding of the law." As a result, it was their opinion that Avery had been legally insane at the time of ...

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