When it comes to overweight violations, police officers have a statutory mandate to follow. In 625 ILCS 5/15-112(b), the General Assembly has legislated that police officers “shall” require the driver to legalize the load. In the event a police officer chooses not to cite a driver for an overweight ticket, he still must comply with this directive. To issue a written warning and not require the load be made legal weight could put an officer in a position of liability if the truck crashed further down the road. Would it make sense for a police officer to document a drunk driver on a warning ticket and then let the motorist continue on his way?
It is a common belief that police officers have mobile access to a magical database of records since the beginning of time. Thank you C.S.I. <insert city> for making the general public believe a police officer can obtain a second grade report card on his squad computer and ascertain whether or not the driver is a trained killer. The fact is, every individual agency maintains its own records of traffic tickets. There is no master database of warning tickets available to all police officers. Officers have no way of knowing whether or not the driver had a warning ticket recently. Warning tickets go into a file cabinet at the local police station, or at best the agency may keep an electronic database for their own purposes. Needless to say, warning tickets at the local level have zero effect on CSA scores…however warnings issued by the Illinois State Police as part of a full motor carrier inspection are reported in CSA.
Warnings are a matter of discretion, and to understand discretion, one must first understand the concept of strict liability. Unlike most crimes, offenses of the Illinois Vehicle Code do not require mens rea, or a conscious decision to break the law. The burden of the prosecution is not to prove there was intent to violate the law, but that the law actually occurred by the defendant charged. If a person kills another with a handgun, the prosecution can only prove murder if there is enough evidence for mens rea. If not, the charge will not be murder. Police and prosecutors do not have to prove a driver was intentionally speeding or operating an overweight vehicle. The only evidence introduced must prove the defendant actually committed the offense. It’s black and white, so to speak.
Because strict liability is so objective, police officers and motorists are looking at the violation from two completely different vantage points. When an officer puts a vehicle on the scale and it is 5,000 pounds overweight, there usually is not much argument…both parties agree the vehicle is heavy. However, when the police officer is deciding whether or not to issue an overweight citation or a warning, he is looking at it from the top-down. The law has been broken and a citation should be issued…now are there enough mitigating circumstances to chop the legs off the crime and give the driver a pass?
On the other hand, drivers will acknowledge the vehicle is overweight, but they are looking at the crime from the bottom-up. In his mind, all the aggravating circumstances leading up to the stop and weighing should be compared before the officer ever decides the citation is appropriate. Someone else loaded the vehicle, the dispatcher told him to go down that route, it’s not his usual truck, his friend told him it was legal to load that much material…the list goes on and on. The reality is the driver is arguing mens rea when the burden is strict liability.
Every time a police officer makes a traffic stop, there’s a million competing factors going into the officers decision. If you want a warning, don’t make it easy for the police officer to decide which way to go.
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