State v. Collova
| Decision Date | 01 July 1977 |
| Docket Number | No. 75-480,75-480 |
| Citation | 255 N.W.2d 581,79 Wis.2d 473 |
| Parties | STATE of Wisconsin, Appellant, v. Carmelo F. COLLOVA, Respondent. |
| Court | Wisconsin Supreme Court |
Bronson C. La Follette, Atty. Gen., and Albert O. Harriman, Asst. Atty. Gen., for appellant.
J. Michael End and Gray & Barden, S.C., Milwaukee, for respondent and for The Wis. Civil Liberties Union Foundation, Inc.
Carmelo F. Collova, by reason of a prior revocation of his privilege to operate a motor vehicle, was required to file and maintain with the Department of Transportation, Division of Motor Vehicles, proof of financial responsibility through September 12, 1975. Collova complied with this requirement by the filing of a certificate of insurance as provided in sec. 344.31, Stats. However, on November 1, 1974, the Division of Motor Vehicles mailed a notice to Collova advising him that his insurance certificate would terminate on November 10, 1974 and informing him that unless financial proof was renewed on or before that date his operating privilege would be revoked. Printed on the same form was an "Order of Revocation" providing as follows:
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 sec. 343.44(1), Stats.
Sec. 343.44, Stats., provides in part:
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:
1. Collova was driving an automobile on December 1, 1974;
2. Collova was subject to the provisions of the financial responsibility law on that date;
3. Collova did not have automobile insurance on file;
4. 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;
5. Collova claims he did not receive the notice of revocation.
6. 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:
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 such notice is in fact mailed to the defendant's last-known address, non-receipt or refusal to accept is not a defense. The second sentence may well be unnecessary now, as the state appears to concede, but this does not create an ambiguity, and avoidance of superfluity as to the second sentence is not a sufficient reason to directly violate the obvious intent of the 1973 amendment. Moreover, it is arguable that the second sentence is not in fact superfluous. Though we do not so decide, taken literally the second sentence might be read to mean that if the defendant has failed to inform the department of a change of address, lack of notice is not a defense even if the division failed to send out any notification at all. The defendant's suggested construction must be rejected. The statute states clearly that non-receipt of an order of revocation properly mailed is not a defense to a charge under the statute.
We do not believe it follows, however, that because non-receipt 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. Sec. 343.44(2), Stats., is very narrowly worded:
"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 address. Thus the definition of the offense here involved does not contain any express words requiring or negativing any particular mental element, or requiring or negativing any specific state of mind. Legislative silence on whether scienter is an element of the offense is not unusual in criminal statutes, 2 and the courts have been left the task of ascertaining the legislative intent from the nature of the particular statute involved. United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 66 L.Ed. 604 (1922); Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Renner, 496 F.2d 922, 924 (6th Cir. 1974).
In State v. Alfonsi, 33 Wis.2d 469, 476, 147 N.W.2d 550, 555 (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:
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