(Affirming 104 Wis.2d 740, 313 N.W.2d 279.)

DAY, J.

This is a review of a decision of the court of appeals which affirmed a judgment of the circuit court for Grant county, Hon. John R. Wagner, Judge, convicting defendant-appellant-petitioner, Barbara A. Kemp (hereinafter defendant) of operating a motor vehicle after her operating privileges were suspended.

Two issues are considered on this review. First: Did the trial court err in not instructing the jury pursuant to sec. 903.03(3), Stats. 1979-80, that the state was claiming the benefit of a presumption and that the jury was not required to regard the basic fact (mailing of notice of driver's license suspension) as sufficient evidence of the presumed fact (that defendant had cause to believe her license was suspended).

Because we conclude that in this case the state was not relying on a presumption, the trial court did not err in refusing to give a sec 903.03(3) type instruction.

Second: Did the court err in its instructions to the jury. Because defendant's trial counsel did not object to the instructions, the question becomes whether plain error was committed in giving them. We conclude no plain error is demonstrated. We therefore affirm the court of appeals and sustain the conviction.

The facts of this case are as follows. Defendant was involved in an automobile accident involving damage to property on November 28, 1978. At that time she had no automobile liability insurance. She discussed the accident with an attorney.

On February 23, 1979, the Department of Transportation, Division of Motor Vehicles, (hereinafter department) sent a notice of suspension, addressed to Barbara A. Kemp at 1429 Bainbridge Street, La Crosse, Wisconsin. The notice stated that, as a result of her being involved in an accident while uninsured, her operator's license would be suspended unless, by March 16, 1979, she complied with the Financial Responsibility Act, ch. 344, Stats. 1979-80. Compliance required either depositing $1,050 to secure any judgment arising out of the accident, furnishing proof of liability insurance in effect at the time of the accident, obtaining legal releases from the other parties involved in the accident, or requesting a hearing. There is no evidence that defendant complied with any of those conditions. On July 19, 1979, the department sent an order of suspension which stated that defendant's operating privileges were suspended because of her failure to comply with the Financial Responsibility Act. This second notice was also addressed to Barbara A. Kemp at 1429 Bainbridge Street, La Crosse, Wisconsin.

On September 26, 1979, defendant was apprehended while operating a motor vehicle in Grant county, Wisconsin. She was subsequently charged with driving after her operating privileges were suspended in violation of sec. 343.44, Stats. 1979-80. Defendant requested a jury trial, and at trial testified that she had lived at 1429 Bainbridge Street during the last four months of 1978 but moved from that address to 120 Sperbeck Street, La Crosse, Wisconsin, in January 1979, where she still resided at the time of trial. She testified she never received the notice of suspension or the order of suspension. She also testified she had informed the post office of her change of address and that mail addressed to her Bainbridge address had been forwarded to her for about two weeks after she moved.

Defendant did not remember whether she notified the department of her change of address. Defendant introduced into evidence two temporary driving permits, one issued May 30, 1979, and the other issued June 8, 1979, which expired August 8, 1979. Both of these permits showed defendant's address as 120 Sperbeck Street. Defendant also testified that the second permit "was sent to me by Madison" and that she later received a regular driver's license containing her Sperbeck Street address.

At the close of the evidence, the judge gave the following instruction to the jury pertaining to the offense of driving after one's operating privileges have been suspended.

"OPERATING AFTER SUSPENSION. The offense of operating a motor vehicle after suspension, as defined by Section 343.44, is committed by a person who operates a motor vehicle upon any highway in this state while that person's operating privileges are under suspension.

"Before the defendant may be found guilty of operating a motor vehicle after suspension, the State must prove by evidence which satisfies you beyond a reasonable doubt that there were present the following three elements of this offense:

"First, that the defendant operated a motor vehicle upon any highway in this state. A motor vehicle is operated when it is set in motion.

"Second, that at the time the defendant operated the motor vehicle, her operating privilege was duly suspended.

"Third, that the defendant had cause to believe that her operating privilege had been suspended. A person has cause to believe that her operating privilege had been suspended when she has received notification of the suspension, or, when, in the exercise of due care, under the facts and circumstances of which he [sic] was aware, the defendant should have known that her operating privilege was suspended.

"There is evidence in this case that the Motor Vehicle Division mailed a written notice of suspension to the defendant at her last known address. If you find beyond a reasonable doubt that the notice was properly mailed, and that the defendant did not receive said notice because the defendant changed her address without notifying the Department and did not leave her forwarding address, you are instructed that such failure to keep the Department notified of current address is inconsistent with the duty to exercise diligence with respect to information about one's operating privilege, and that by statute, refusal to accept or failure to receive an order of suspension mailed by first class mail to such person's last known address is not a defense to the charge of driving after suspension.

"Although a person may have no actual knowledge of the suspension, and may have received no actual notification, such person has cause to believe her operating privilege has been suspended if she has knowledge of, or a reasonable person in the defendant's situation exercising reasonable diligence would have knowledge of, the existence of facts and circumstances which, under Wisconsin Law, are a basis for suspension. As it applied to this case, the Law of Wisconsin provides for the suspension of the operating privilege if the driver has had an accident and has neither furnished proof of motor vehicle liability insurance meeting the minimum requirements of Wisconsin Statute 343.15(1) in effect at the time of the accident, nor filed legal releases with the Department of Motor Vehicles signed by the person who received injuries or property damage in the accident, nor made a security deposit to satisfy any possible judgment arising out of such accident. Therefore, you may find the third element is satisfied if you find beyond a reasonable doubt that the defendant knew, or in the exercise of due care, should have known under the circumstances of which she was aware, that she had an accident and did not furnish the Motor Vehicle Department proof of motor vehicle liability insurance, file a legal release with the Department, or post a security deposit with the Department.

"If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant was operating a motor vehicle upon a highway of this state while her operating privilege was duly suspended, and that she had cause to believe that her operating privilege was suspended, then you should find the defendant guilty.

"If you are not satisfied, then you must find the defendant not guilty."

Prior to the giving of the instructions counsel for both the state and defendant stated they had no objection to the instructions. The jury returned a verdict of guilty of operating a motor vehicle after driving privileges had been suspended. The trial court pronounced judgment of conviction. Defendant appealed to the court of appeals, which affirmed the trial court. Defendant then petitioned this court to review the court of appeals decision. We granted that petition.

Defendant claims that the jury instructions given by the trial judge were incomplete and erroneous and deprived her of a fair trial, necessitating reversal of her judgment of conviction.

Defendant failed to object to the jury instructions given by the trial judge. The failure to object to the form of a jury instruction at the jury instruction conference generally constitutes a waiver of any error in the instructions. However, this court stated in State v. Schulz, 102 Wis.2d 423, 435, 307 N.W.2d 151 (1981), that the waiver rule does not apply where the error affects defendant's substantial rights.

This exception to the timely objection requirement is termed the "plain error" rule. This court recently set forth the test to be applied to determine whether a jury instruction will be reviewed despite the absence of an objection in State v. Paulson, 106 Wis.2d 96, 315 N.W.2d 350, 354-55 (1982).

"The test which this Court has applied where a party contends that a jury instruction should be reviewed on appeal in spite of a waiver of objections is whether the error is so plain or fundamental as to affect the defendant's substantial rights. . . .

"[I]t is clear that the defendant must establish not only that an error exists but also that that error is so plain or fundamental as to affect the substantial rights of the defendant."

This court in Paulson cited with approval the following language from Claybrooks v. State, 50 Wis.2d 79, 84-85, 183 N.W.2d 139 (1971).

"It is well established that even where there is no timely objection in the trial court, errors in instruction may be reviewed on appeal, even on the court's own motion, where the error is so plain or fundamental as to affect substantial rights of the defendant. Of course, a defendant is faced with a heavy burden when he has acquiesced in the instructions given by the trial court . . . . defendant must show that his substantial rights have been affected." Paulson, 106 Wis.2d at 105.

The first argument of the defendant is that the trial court erred in not instructing the jury that the state was relying on a presumption to prove an element of the offense and that the jury could, but need not, infer the existence of the presumed fact from proof of the basic fact. The trial judge has wide discretion in issuing jury instructions based on the facts and circumstances of each case. State v. Vick, 104 Wis.2d 678, 690, 312 N.W.2d 489 (1981). If the instructions given by the trial judge adequately cover the law, this court will not find error in his refusal to give a particular instruction, even though that instruction is not erroneous. State v. Williamson, 84 Wis.2d 370, 393, 267 N.W.2d 337 (1978).

In State v. Collova, 79 Wis.2d 473, 488, 255 N.W.2d 581 (1977), this court set forth the elements of the offense of driving after one's operating privileges had been suspended.

(1) The defendant's operators license had been duly suspended pursuant to the laws of this state; (2) the department sent a notice of suspension to the defendant, by first-class mail, to their last known address; (3) the defendant operated a motor vehicle on a highway in this state during such suspension; and (4) the defendant had cause to believe their license might be revoked or suspended. In Collova, 79 Wis.2d at 487, this court stated that the "cause to believe" element may be proved in any one of three ways:

"A defendant has cause to believe his license might be revoked or suspended when:

"(1) He has knowledge of the revocation or suspension; or

"(2) He has received notification of the revocation or suspension; or

"(3) He has knowledge of, or a reasonable person in the defendant's situation, exercising reasonable diligence, would have knowledge of, the existence of facts or circumstances which, under Wisconsin law, might cause the revocation or suspension."

If the state chooses to rely on notification, the second of the above methods of proving "cause to believe," it could avail itself of the permissible inference that a letter properly posted was received. Collova, 79 Wis.2d at 487, n 9, citing Greene v. Donner, 198 Wis. 122, 126, 223 N.W. 427 (1929). When the state relies on notification to establish that a defendant had cause to believe their license was suspended, the sec. 903.03(3), Stats., instruction that the jury might, but need not find notification from proof that the notice of suspension was properly mailed, is required.

However, the state argues that it did not rely on notification to establish that the defendant had cause to believe her license was suspended, but instead sought to prove this element to the jury by the third alternative set forth in Collova; that the defendant [had] knowledge of, or a reasonable person in the defendant's situation, exercising reasonable diligence, would have knowledge of, the existence of facts or circumstances which, under Wisconsin law, might cause revocation or suspension." Collova, 79 Wis.2d at 487. The state argued that this element was shown by proof that defendant had been in an accident involving property damage in excess of $200 while uninsured, which required her to provide security pursuant to secs. 344.12- 344.14, Stats. 1979-80, or face suspension and that defendant did not provide such security.

The state further argued that the proof that the department had mailed the notice and order of suspension to defendant's last known address was submitted to satisfy the second, or mailing, element of the offense rather than the "cause to believe" element. Because the state was relying on "reasonable knowledge" rather than "notification" to show that the defendant had cause to believe that her license was suspended, the presumption that a properly mailed notice of suspension was received had no bearing on the case. Therefore an instruction pursuant to sec. 903.03(3), Stats., as to the effect to be given such a presumption, was unnecessary.

We agree with the state's position. There is nothing in the record to indicate that the state argued that the presumption of receipt from mailing applied nor was the jury instructed to that effect. The jury was instructed that the defendant's failure to inform the Department of Motor Vehicles of her change of address when she moved to 120 Sperbeck Street, as required by sec. 343.22(1), Stats. 1979-80, was inconsistent with her exercise of due diligence in respect to knowledge of facts relating to the status of her driving privilege and was not a defense to the charge of driving after suspension. This instruction derives from Collova, 79 Wis.2d at 487, n 10, and sec. 343.44(2), Stats.

This instruction is appropriate to the "reasonable person would have knowledge" theory upon which the state based its case. The instruction did not inform the jury that they could rely on the presumption of notification from mailing, and since the presumption was not in the case, there was no need to instruct the jury how to treat the presumption. We therefore hold that the sec. 903.03(3), Stats., instruction was not appropriate to this case and, accordingly, the lack of such an instruction does not entitle defendant to reversal of her judgment of conviction.

The second issue is whether the jury instruction given by the trial judge outlining the elements of the offense of driving after suspension was erroneous and affected the substantial rights of the defendant. Defendant argues that the instruction contained three errors. First, it did not inform the jury that the evidence that the state had mailed the notice of suspension to defendant's Bainbridge Street address could be used to satisfy the state's burden of proving that defendant had "cause to believe" that her license had been suspended. The evidence could have been introduced for that purpose. See Collova, 79 Wis.2d at 487, n 9. However, as discussed above, the state was relying on defendant's "reasonable person would have knowledge" of her suspension to satisfy that element rather than relying on notification. Therefore, there was no error in failing to instruct the jury that it could, but need not, find that the mailing of the notice of suspension gave defendant "cause to believe" that her license had been suspended.

Second, the defendant challenges the paragraph in the instruction which stated that defendant's failure to inform the department of her change of address was inconsistent with her duty to exercise diligence and did not constitute a defense to driving after suspension. Defendant argues that this language could have mislead the jury into concluding that defendant had to prove that she notified the department of her change of address in order to have a defense to the action. We conclude the instruction was not so likely to mislead the jury as to amount to plain error, particularly in view of the substantial and uncontroverted proof of her involvement in the accident, while uninsured, which would be sufficient to satisfy the "cause to believe" element. However, we recommend that the trial courts use the language in Wis J I — Criminal 2620 (1981), when instructing the jury as to the elements of the offense.

Undoubtedly one could conjure up a number of possible interpretations which a jury could read into a seemingly clear and straightforward instruction. We decline to do so. The instruction set forth the elements of the offense as set forth in sec. 343.44, Stats., and interpreted in Collova, 79 Wis.2d at 488. The trial transcript reveals that the state introduced evidence satisfying each element of the offense. Defendant did not attempt to rebut the state's contention that her license had been duly suspended and that she operated a motor vehicle on the highway during the suspension.

The defendant did attempt to convince the jury that, since she possessed an operator's license containing her Sperbeck Street address, the notice and order of suspension sent to her Bainbridge Street address was not "to her last known address." However, defendant does not remember if she notified the department of her change of address pursuant to sec. 343.22, Stats., and the department received no such notification. Absent compliance with sec. 343.22 the defendant may not challenge a notice mailed by the department to a previous address in order to defeat the requirement that the department mail the notice of suspension to her last known address, sec. 343.44(2).

In order to satisfy the element of "cause to believe," the state introduced evidence that the defendant had been in an accident involving property damage while uninsured and that the defendant had not complied with the provisions of the Financial Responsibility Act, ch. 344, Stats., subjecting her to suspension of her operating privileges. Defendant did not dispute that she had been in the accident and introduced no evidence to show that she complied with the provisions of ch. 344 or fell within an exception to its application. Ignorance of the law is, of course, no defense to a violation thereof. Collova, 79 Wis.2d at 488.

The jury was properly instructed that if it believed that defendant had been in an accident, and was subject to the requirements of ch. 344, Stats., but had not complied with them, they could find that she had "cause to believe" that her license was suspended. There is evidence to justify the instruction and support the verdict.

We therefore affirm the decision of the court of appeals which affirmed the judgment convicting defendant of operating a motor vehicle while her operating privileges were suspended.

By the Court. — The decision of the court of appeals is affirmed.