SPENCER, J. Defendant has appealed his conviction of driving his motor vehicle at a speed of seventy-seven miles per hour in a fifty-five miles per hour zone in violation of K.S.A. 1976 Supp. 8-1336(a)(3).

Agreed upon facts are that prior to the trial of this matter to the court, the state moved to suppress evidence offered by the defendant that:

1. Defendant's cruise control stuck in the "accelerate" position causing the car to accelerate beyond the posted speed limit.

2. The defendant attempted to deactivate the cruise control by hitting the off button and the coast button and tapping the brakes.

3. These actions were not immediately successful in deactivating the cruise control.

4. Subsequent to the date of this incident, the defendant had the defective cruise control repaired.

The trial court sustained the motion, thus precluding the defendant from presenting the proffered evidence as a defense. Because of this ruling, defendant presented no defense and the plaintiff's evidence was uncontradicted and unimpeached. The result was that the defendant was found guilty of driving in excess of the posted speed limit, and, also, that defendant was the "driver" of the car as defined by K.S.A. 8-1416. The sentence of $ 10 and costs was suspended pending this appeal. . . .

[D]efendant readily concedes that a violation of the speeding statute…is an absolute liability offense when read in light of the absolute liability statute…, which provides:

"A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. . . ."

Defendant admits that this statute does away with the necessity of proving intent to commit the misdemeanor and, further, that any evidence of the defective cruise control would be inadmissible if introduced merely to negate an intent or culpable state of mind on the part of the motorist. His contention is that the evidence was offered to show that his speeding was not a voluntary act and, therefore, there was no criminal liability. He suggests that the evidence of a defective cruise control goes specifically to whether his speeding was a voluntary act on his part and has nothing to do "with the intent, or state of mind, of the defendant to do the crime to which his act amounted." In sum, the defendant suggests that even though the charge against him was an absolute liability offense per K.S.A. 21-3204, the state must prove that he acted voluntarily. . . .

We have no doubt but that if defendant were able to establish that his act of speeding was the result of an unforeseen occurrence or circumstance, which was not caused by him and which he could not prevent, that such would constitute a valid defense to the charge. But, the evidence proffered suggests a malfunction of a device attached to the motor vehicle operated by the defendant over which he had or should have had absolute control. Defendant does not suggest that the operation of the motor vehicle on the day of his arrest was anything but a voluntary act on his part, nor that anyone other than himself activated the cruise control, which may have caused his excessive speed. Nor does he suggest that any occurrence or circumstance existed which required of him more care than society might reasonably expect. Furthermore, as suggested by the state, it appears that defendant was able to bring his vehicle under control and to a stop when directed to do so by the police.

In the New York case of People v. Shaughnessy . . . it was held that a defendant could not be found guilty of violating an ordinance prohibiting entry upon private property because the defendant was merely a passenger in the trespassing car and the state's evidence failed to show an overt voluntary act of omission by the defendant. In the case of State v. Kremer . . . the Minnesota Supreme Court held that a defendant could not be guilty of violating a city ordinance requiring all traffic to stop at a flashing red light when the evidence showed that defendant's brakes failed with no prior warning to the defendant. Again, the court found no overt voluntary act on the part of the defendant.

Among other cases cited by the defendant are State v. Binders…and State v. Weller. . . . In Binders, the court on appeal reversed the trial court's conviction of the defendant for failing to drive to the right of a curve. The court stated that the evidence failed to show that the defendant intended to drive on the left side and that all inferences would lead one to believe that the defendant skidded on the ice. The court explained that even if the crime is malum prohibitum, in which no specific criminal intent need be proven for conviction, "the only intent requisite to a conviction is the intent or purpose to do the prohibited act."

In Weller, the Connecticut court stated that the defendant had a valid defense to the speeding charge because the spring which closes the throttle plate broke due to no fault of the defendant. The court reasoned that because "[t]here is not one scintilla of evidence of any intent on the part of the defendant to do the prohibited act . . .," the defendant's conviction should be overturned.

It is interesting to note that apparently Connecticut does not have an absolute liability statute similar to K.S.A. 21-3204. . . . Research also reveals that the same Connecticut court was willing to distinguish both Wellers and Binders in the speeding case of State v. Zullo…. In Zullo, although the court upheld the previous "intent to do the prohibited act" language, it further stated that there is no need to prove that intent because there is a permissible inference that the driver was the agent responsible in causing the act to be done. . . .

In our view, unexpected brake failure and unexpected malfunction of the throttle on an automobile, both being essential components to the operation of the vehicle, differ significantly from the malfunction of a cruise control device to which the driver has voluntarily delegated partial control of that automobile. We believe it must be said that defendant assumed the full operation of his motor vehicle and when he did so and activated the cruise control attached to that automobile, he clearly was the agent in causing the act of speeding. The safety and welfare of the public require that the motorist operate his vehicle in accordance with the maximum speed limits as set forth in K.S.A. 8-1336, and other rules of the road, and such obligations may not be avoided by delegating a task which he normally would perform to a mechanical device such as a cruise control.

Defendant contends that because of the malfunction of his cruise control he was not then the "driver" of the vehicle in the technical sense because he was not then in "actual physical control" of his vehicle as provided by K.S.A. 8-1416. On the basis of what has previously been said, we consider this argument to be entirely without merit.

Although the proffered evidence might well have been received by the trial court in explanation and mitigation of the offense charged, it was not a defense to that charge and would not have changed the ultimate result of the case. . . . Moreover, in noting the sentence imposed upon the finding of guilt, we must conclude that if any error was committed in sustaining the motion in limine, it was harmless error. . . .

Judgment affirmed.