STATE, Appellant, V. COLLOVA, Respondent.
No. 75-480
Supreme Court of Wisconsin
Submitted on briefs May 4, 1977. Decided July 1, 1977.
255 N.W.2d 581
ABRAHAMSON, J.
Also reported in 255 N. W. 2d 581.
For the respondent the cause was submitted on the brief of J. Michael End and Gray & Barden, S. C. of Milwaukee, attorneys for respondent and for The Wisconsin Civil Liberties Union Foundation, Inc.
ABRAHAMSON, J. Carmelo F. Collova, by reason of a prior revocation of his privilege to operate a motor
“In the event of your failure to furnish the department with renewed proof of your financial responsibility on or before the effective date of this order your operating privilege will be revoked and all licenses evidencing such privilege must be immediately surrendered to the Administrator of Motor Vehicles at his office in the Hill Farms State Office Building, Madison, Wisconsin.
“This order of revocation is issued in accordance with Section 344.40 of the Wisconsin Statutes. Effective date of this revocation order is November 10, 1974
“Dated at Madison, Wisconsin November 1, 1974”
On December 1, 1974, Collova, while driving an automobile in Portage county, Wisconsin, was stopped by an officer of the State Highway Patrol and was charged with operating a motor vehicle after revocation of his operating privilege in violation of
“(1) No person whose operating privilege has been duly revoked or suspended pursuant to the laws of this state shall operate a motor vehicle upon any highway in this state during such suspension or revocation or thereafter before filing proof of financial responsibility or before he has obtained a new license in this state or his operating privilege has been reinstated under the laws of this state. . . .
“(2) Any person violating this section may be fined not less than $100 nor more than $400 and shall be im-
prisoned not less than 10 days nor more than one year in the county jail . . . . Refusal to accept or failure to receive an order of revocation or suspension mailed by 1st class mail to such person‘s last-known address shall not be a defense to the charge of driving after revocation or suspension. If such person has changed his address and fails to notify the division as required in s. 343.22 then failure to receive notice of revocation or suspension shall not be a defense to the charge of driving after revocation or suspension.”
After entering a plea of not guilty, the defendant moved to dismiss the charges against him on the ground that the statute under which he was charged was constitutionally defective.
For purposes of the motion the following facts were stipulated by the parties:
- Collova was driving an automobile on December 1, 1974;
- Collova was subject to the provisions of the financial responsibility law on that date;
- Collova did not have automobile insurance on file;
- The Notice of Cancellation and Order of Revocation of Collova‘s operating privileges was mailed by the Division of Motor Vehicles to Collova by first-class mail on November 1, 1974;
- Collova claims he did not receive the notice of revocation.
- Collova claims he had insurance but it was not filed with Madison (Division of Motor Vehicles).1
Collova‘s motion to dismiss was granted by the Portage County Court on August 15, 1975, and by decision of September 25, 1975 the circuit court affirmed. The State has appealed from this judgment.
Collova contends that sub. (2) of the statute is ambiguous as to whether failure to receive first-class mail notice is a defense. He further contends that because this is a penal statute the ambiguity should be resolved against the state and that the statute should be construed to allow assertion of non-receipt of such notice as a complete defense.
It may be admitted that the statute is not felicitously worded. However, we do not think the construction urged by Collova is correct. Prior to its being amended to its present form by sec. 504, ch. 90, Laws of 1973, the statute read:
“(2) . . . If the revocation or suspension is pursuant to s. 343.32, 343.34, 344.08, 344.14 or 344.25 the penalties shall not apply until the person whose license has been revoked or suspended has received actual notice of such revocation or suspension or until 5 days following the delivery of such notice to the person or an adult at his address by mail as shown by return receipt. If such person has changed his address and fails to notify the division as required in s. 343.22 then failure to receive notice of revocation or suspension shall not be a defense to the charge of driving after revocation or suspension.”
The first sentence of sub. (2) quoted immediately above was applicable when the driver‘s correct address was on file with the division. Penalties did not apply until actual notice was received or until five days following delivery of notice by certified mail as shown by return receipt. The second sentence was applicable when the driver failed to notify the division of a change in his address, in which event his failure to receive notice was not a defense. The 1973 amendment obviously was intended to change the method of giving notice from certified mail to first-class mail and to provide that if
II.
We do not believe it follows, however, that because nonreceipt of mailed notice is not a defense, the defendant‘s state of mind, whether called mens rea, criminal intent, guilty knowledge or scienter, is immaterial to the existence of an offense under the statute.
“Refusal to accept or failure to receive an order of revocation or suspension mailed by 1st class mail to such person‘s last-known address shall not be a defense. . . .”
Sub. (2) of the statute is drawn with conspicuous narrowness to provide no more than that a defendant may not defeat the prosecution merely by showing that he did not receive or refused to accept a notification of revocation sent by first-class mail to his last known home
In State v. Alfonsi, 33 Wis.2d 469, 476, 147 N.W.2d 550 (1960), this court observed that “the element of scienter is the rule rather than the exception in our criminal jurisprudence.” However, the court has long recognized the existence of and, as a general matter, the propriety of legislative definitions of crime that omit any element respecting mental state beyond the requirement that the accused intended to do the act which is made a crime. In State v. Hartfiel, 24 Wis. 60 (1869), the court affirmed the conviction of a tavern operator for selling liquor to a minor notwithstanding that the minor was over six feet tall and had informed the proprietor that he was of age. The court said:
“The authorities cited are to the effect that, where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact, or state of things contemplated by the statute, will not excuse its violation.
“. . . [W]e have no doubt that the legislature intended to inflict the penalty, irrespective of the knowledge or motives of the person who has violated its provisions. Indeed, if this were not so, it is plain that the statute might be violated times without number, with no possibility of convicting offenders, and so it would become a dead letter on the statute book, and the evil aimed at by the legislature remain almost wholly untouched. To guard against such results, the legislature has, in effect, provided that the saloon keeper, or other vendor of intoxicating liquors or drinks, must know the facts—must know that the person to whom he sells is a qualified drinker, within the meaning of the statute; and, if not, he acts at his peril in disobeying the requirements of the law.”
In State v. Dried Milk Products Co-op., 16 Wis.2d 357, 362, 114 N.W.2d 412 (1962), this court upheld the constitutionality of imposing a $400 fine on the corporate owner of a truck which had been loaded in excess of axle weight limitations, in spite of the absence of any actual knowledge of the violation on the owner‘s part. The court described the purpose of such enactments as being the enforcement of a high standard of care:
“Statutes of this nature, imposing criminal penalty irrespective of any intent to violate them, have for their purpose the requirement of a degree of diligence for the protection of the public which shall render violation thereof impossible. . . . These statutes are examples of situations where a person must at his peril see to it that the regulations are not violated by his acts or by the acts of another acting on his behalf.”3
The United States Supreme Court has discussed the development of regulatory criminal statutes imposing liability without fault as follows:
“The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reason-
able standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare. “While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called ‘public welfare offenses.’ These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender‘s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone
makes out the crime. This has not, however, been without expression of misgiving.”4
Several factors are present in the case at bar that suggest scienter be disregarded. The offense is obviously a police regulation designed to function with the rest of the motor vehicle laws in regulating the social order. Revocation of drivers’ licenses is a significant sanction in enforcing obedience to traffic laws generally, and if the state were to lose effective control over the privilege of operating motor vehicles, the rate of injury on the highways might very well rise. The seriousness of harm to the public resulting from unlicensed drivers is generally conceded.
Strict criminal liability has been imposed on persons who failed to have a license or to comply with regulations when trafficking in drugs or in firearms. United States v. Freed, 401 U.S. 601 (1971); United States v. Balint, 258 U.S. 250 (1922). But such acts are in and of themselves not innocent acts. Persons who choose to engage in these kinds of unusual and dangerous activities may reasonably be held to the highest standards of care and precision, enforced by strict criminal liability, in conforming to government regulations. But driving a car, though dangerous if improperly done, is a usual,
As pointed out in the Dried Milk Co-operative Case, the usual purpose of strict liability offenses is the enforcement of a high standard of care for the protection of the public. Such offenses are most commonly found in areas such as food and drug handling and sale, the sale of intoxicating liquors to minors, traffic law violations, and sales of misbranded articles.5 In cases such as these it can be said that if sufficient care is exercised the proscribed conduct can be avoided in all but the exceptional instance. The persons to whom the regulations are directed are generally in a position to exercise such high degree of care; they will be encouraged to do so by the imposition of strict penal liability, and the penalties usually involved are such as to make the occasional punishment of one who has done everything that could have been done to avoid the violation a reasonable price to pay for the public benefit of the high standard of care that has been induced. Thus where the statute is not explicit, one of the principle indexes courts consider on the question whether some element of knowledge is required is the severity of the penalty involved.
We think the severe consequences attached to a violation of
We do not believe the legislature intended to impose such a severe penalty without some requirement of guilty knowledge as an element of the offense.6 The inquiry, reduced to its simplest terms, may be stated to be whether the statute appears on balance to be designed to punish wrongdoers or to implement a high standard of care on the part of the public. It cannot be doubted that the latter purpose is present here, and this purpose must be considered in construing the statute. However, we think it clear in light of the severity of the penalty involved, that the statute is in large measure designed to punish those who have culpably done that which the legislature has declared to be wrongful. The driving of a motor vehicle by one who has neither knowledge nor reason to know that his operating privilege is or may have been revoked is a wholly routine and innocent act. Absent some unmistakable indication in the words of the statute, we are unwilling to conclude that the legislature intended to subject a defendant who is innocent of any negligent or intentional wrongdoing to the harsh consequences a conviction under
- He has knowledge of the revocation or suspension; or
- He has received notification of the revocation or suspension;9 or
- He has knowledge of, or a reasonable person in the defendant‘s situation, exercising reasonable diligence, would have knowledge of, the existence of facts or circumstances which, under Wisconsin law, might cause the revocation or suspension.10
We believe this construction of the statute is consistent with both the injustice of imposing severe criminal liability on a person who is not culpable, and the need of
The defendant‘s ignorance of the law or negligence as to the existence of the law is not a defense.11 Thus the defendant‘s failure to know that driving without a license is a crime is not a defense. Also, the defendant‘s failure to know which facts or circumstances may subject him to revocation or suspension of his driver‘s license under Wisconsin law is not a defense.
Under
In the case at bar the defendant‘s license was subject to revocation if he did not have automobile insurance on file with the division. The state might therefore prove the defendant had cause to believe his license might be revoked or suspended by showing that the defendant knew or had reason to know that his insurance was terminated and would not be on file because, e.g., he was advised by his insurer that his insurance was terminated (
Since we hold that the statute does require the state to prove negligent or intentional culpability as an ele-
Accordingly, we conclude that the circuit court erred in affirming the county court‘s granting the defendant‘s motion to dismiss the charge, and we remand the case for trial consistent with the construction of
By the Court.—Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.
CONNOR T. HANSEN, J. (concurring in part; dissenting in part). I concur with the result reached by the majority. The case should be reversed and the cause remanded. However, I respectfully dissent from and disagree with the rationale used by the majority in reaching that result. They have, in effect, added a fourth element to the otherwise clear and unambiguous language of
The majority correctly notes that the 1973 amendment to
The majority nevertheless proceeds to interpret the statute so as to create an additional or fourth element and to make non-receipt of the notice a complete or at least a partial defense. The majority does so by holding that an offense under
If the state is required to prove as an element of the offense that the defendant had cause to believe his license might be revoked or suspended, under the majority decision the state could presumably do so by proving that the defendant received notification of the revocation or suspension. In this regard, notes the majority, the state could avail itself of the presumption that a letter properly posted was received. A letter, mailed first-class to the defendant‘s last known address, is accorded under
The statutory language and intent are clear. Non-receipt of a properly addressed first-class mailed notice is no defense. By adding the fourth element to the offense, the majority subverts the clear intent of the statute.
I am authorized to state that Mr. Justice HANLEY and Mr. Justice R. W. HANSEN join in this concurring in part; dissenting in part opinion.
Notes
For a discussion of strict liability and criminal offenses, see Hall, General Principles of Criminal Law, c. X (2d ed. 1960); Perkins on Criminal Law, 799-809 (2d ed. 1969); LaFave & Scott, Criminal Law, 218-223 (1972); Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933); Mueller, On Common Law Mens Rea, 42 Minn. L. Rev. 1043 (1958); Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401 (1958); Harring, Liability Without Fault: Logic & Potential of a Developing Concept, 1970 Wis. L. Rev. 1201.