The Commandment of Shall
Laws, orders, commands…when a governing body wants to objectively clarify an expectation, the word “shall” is used. In contrast, the subjective cousin of “shall” is “may”. Both terms are auxiliary verbs. While “may” is a strong suggestion and empowers one to use discretion, it is not a mandate like “shall”. While this may seem somewhat of an unnecessary word study, it is not uncommon to see abrogation of these terms to satisfy a goal unintended by the legislature. This is particularly true when the Illinois Vehicle Code orders police officers to use scales to weigh vehicles they believe are overweight.
In 625 ILCS 5/15-112, the Illinois Vehicle Code states:
“Any police officer having reason to believe that the weight of a vehicle and load is unlawful shall require the driver to stop and submit to a weighing of the same either by means of a portable or stationary scales that have been tested and approved at a frequency prescribed by the Illinois Department of Agriculture…”
Compare this statute with the DUI laws. The IVC states a person “shall not” operate a vehicle in this State with a blood alcohol concentration (BAC) of 0.08 or more…this is commonly referred to as the “per se” law. In order to prove the per se law for DUI, the legislature has required objective evidence to determine the legality of the BAC using a breath test, or blood and urine. Would it be acceptable for a police officer to write a ticket for exceeding the lawful BAC based on an admission by the driver? Or based on his professional opinion? What a BAC measurement is to a DUI per se citation is what a scale measurement is to an overweight citation. Objective crimes require objective evidence.
The very first Standard of Practice (SOP-01) written and ratified by the ITEA addressed this issue…this is available to all ITEA members on the discussion forum. There are times when weighing trucks can be difficult depending on many different factors:
- Sometimes heavy loads are stopped when stationary scales are closed and portable scales are unavailable.
- Sometimes large vehicles cannot be turned around on a dime and directed to a stationary scale.
- Sometimes an owner grossly under-registers his vehicle for the weight of the load he is carrying.
- Sometimes both the driver and the police officer are busy and time is of the essence.
All these situations may lead a police officer to take a shortcut to avoid weighing a truck on a scale. Weights listed on a bill of lading may not have originated from a scale certified by the Illinois Department of Agriculture. A verbal or written admission by a driver is definitely not measured on a scale. A weight ticket from a scale not known to the officer is poor evidence as it was obtained prior to the stop…yet the law clearly indicates the weighing is to occur after reason to believe is established.
The General Assembly feels so strongly that overweight vehicles cause damage to our roads and jeopardize public safety that they have authorized extraordinary fines for violations. If these fines are to be levied, then the best evidence must be gathered. However, this evidence is not optional…it’s compulsory.