People v. Tolbert, 2016 IL 117846 (January 2016). Episode 137 (Duration 3:45)
AUUW liability by a person under 21 can be avoided if the minor is “on the land or in the legal dwelling of another person as an invitee with that person’s permission.”
AUUW Under 21
The exact language of the statute is…
A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
“Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm…and the person possessing the weapon was under 21 years of age and in possession of a handgun unless the person under 21 is engaged in lawful activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-2(f).”
The case dealt with the “invitee” section of the code.
The Illinois Supreme Court said this section of the aggravated unlawful use of a weapon statute is NOT an element of the offense.
Where an act is made criminal, with exceptions embraced in the enacting clause creating the offense, so as to be descriptive of it, the People must allege and prove that the defendant is not within the exceptions so as to show that the precise crime has been committed.
In other words, where the exception is descriptive of the offense it must be negatived in order to charge the defendant with the offense. The plain language of section 24-2 establishes that the invitee requirement of section 24-1.6 was intended by the General Assembly to be an exemption to the offense of aggravated unlawful use of a weapon and not an element of the offense.
Therefore, this Defendant needed to plead this defense just like any other affirmative defense.
This is considered an exemption to the charge and must, therefore, an affirmative defense.