Illinois DUI Law Brief on Shifting Burden in Summary Suspension Hearings

POINTS AND AUTHORITIES

PAGE

STANDARD OF REVIEW

THE DE NOVO STANDARD OF REVIEW APPLIES HERE...............

People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670,

739 N.E.2d 433 (2000)......................................................... 5

People v. Andrews, 146 Ill.2d 413, 428, 167 Ill.Dec. 996,

588 N.E.2d 1126, 1135 (1992)................................................ 5

ARGUMENT

WHEN A DEFENDANT MAKES A PRIMA FACIE CASE THAT THE TEST RESULT IS EITHER UNRELIABLE, OR NOT IN COMPLIANCE WITH THE REGULATIONS, THE BURDEN SHIFTS TO THE STATE TO LAY A FOUNDATION AND ADMIT THE BREATH RESULTS. IF THEY FAIL TO DO SO, THE COURT MUST GRANT THE PETITION TO RESCIND. SINCE THE STATE NEITHER ADMITTED THE RESULTS NOR LAID A PROPER FOUNDATION FOR ADMITTING THE LOGBOOK ENTRIES, THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S PETITION TO RESCIND.

People v. Mindham, 253 Ill.App.3d 792, 798, 192 Ill.Dec. 680,

625 N.E.2d 835, 840 (2d. Dist. 1994)....................................... 8

Illinois Pattern Jury Instruction, Civil, No. 5.01 (Supp.2003).................... 8

Kersey v. Rush Trucking, Inc., 344 Ill.App.3d 690, 800 N.E.2d 847,

279 Ill.Dec. 559, (2d Dist. 2003)............................................ 8

People v. Orth (1988), 124 Ill.2d 326, 340, 125 Ill.Dec. 182,

530 N.E.2d 210................................................................ 9

People v. Winfield (1975), 30 Ill.App.3d 668, 672, 332 N.E.2d 634;........... 9

People v. Crawford (1974), 23 Ill.App.3d 398, 402-03, 318 N.E.2d 743;...... 9

People v. Black (1980), 84 Ill.App.3d 1050, 40 Ill.Dec. 322, 406 N.E.2d 23.... 9

People v. Hamilton (1987), 118 Ill.2d 153, 113 Ill.Dec. 53, 514 N.E.2d 965..... 9

People v. Graney (2d Dist. 1992), 234 Ill.App.3d at 505, 174 Ill.Dec. 790,

599 N.E.2d 574................................................................... 9

People v. Moore, 138 Ill.2d at 169, 149 Ill.Dec. 278, 561 N.E.2d 648........... 10

People v. Teller (1991), 207 Ill.App.3d 346, 350, 152 Ill.Dec. 364,

565 N.E.2d 1046............................................................... 10

People v. Keith (1992), 148 Ill.2d 32, 42, 169 Ill.Dec. 276, 591 N.E.2d 449.).... 11

NATURE OF THE CASE

This is an appeal by the Defendant from a final judgment denying a Petition to Rescind a Summary Suspension. (C. 35, 36-38) The Defendant was arrested for DUI by a Village of Darien police officer, but due to breath machine problems in Darien, was taken to the Village of Willowbrook for testing. The summary suspension hearing was held on December 12, 2006. The Defendant contested the validity of the breath test based upon failure to comply with her subpoena and her motion for discovery, both requesting proof that the machine was timely certified as accurate in accordance with the State breath-testing regulations, and an adverse negative inference being drawn therefrom. The trial court found that the Defendant had made a prima facie case for rescission, and shifted the burden to the State. (C. 79) The State then passed the case to the afternoon, and called a Village of Darien police officer to read into evidence the certifications from the Village of Willowbrook breath machine logbook over defendant's hearsay and foundation objections. (C. 83-89) The State rested without moving to admit either the logbook, or the Defendant's breath test results. (C. 89) The Court then denied the Defendant's Petition to Rescind. (C. 96-97) The Defendant on that same date December 12, 2006 filed her timely Notice of Appeal. (C. 36-38)

ISSUE PRESENTED FOR REVIEW

WHETHER THE TRIAL COURT SHOULD HAVE RESCINDED THE SUSPENSION, WHEN IT HELD THAT DEFENDANT HAD MADE A PRIMA FACIE CASE FOR RECISSION, AND THE STATE FAILED TO PROPERLY INTRODUCE THE LOGBOOK RESULTS AND NEVER INTRODUCED THE DEFENDANTS BREATH TEST RESULTS.

JURISDICTIONAL STATEMENT

This appeal is taken as a matter of right under Supreme Court Rules 301 and 303(a)(1), which govern appeals from final judgments in civil proceedings. Supreme Court Rule 301 provides that every final judgment of a circuit court in a civil case is appealable as of right. 155 Ill.2d R. 301. Rule 303(a)(1) provides, in relevant part, that the notice of appeal from final judgments in civil cases "must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." 155 Ill.2d R. 303(a)(1).

The judgment denying the Defendant's Petition to Rescind was entered on December 12, 2006 (C. 35) The Notice of Appeal was filed with the clerk of the circuit court on that same day, December 12, 2006. (C. 36-38)


STANDARD OF REVIEW

The issue of whether the court erred in denying the Defendant's petition to rescind is based completely on the question of whether the State rebutted the defendant's prima facie case. That question should be reviewed de novo because the facts are not in dispute, and the issue involved is wholly a question of law. See, e.g. People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). Thus, this appeal should be reviewed under the de novo standard.

Although not in dispute, the standard of review for a trial court's finding that the Defendant made out a prima facie case, is whether it was against the manifest weight of the evidence. People v. Andrews, 146 Ill.2d 413, 428, 167 Ill.Dec. 996, 588 N.E.2d 1126, 1135 (1992) (trial court's ruling on issue of prima facie case is reviewed under manifest weight not abuse of discretion standard)

STATEMENT OF FACTS

On October 29, 2006, the Defendant-Appellant Ieva Aleliunaite was arrested for Driving Under the Influence of Alcohol by a Village of Darien police officer. (C. 1) The arresting officer served the Defendant with a sworn report, indicating that she would receive a three-month suspension of her driving privileges for allegedly failing a breath alcohol test at the Willowbrook police department. (C. 6)

On November 7, 2006, the Defendant filed a Petition to Rescind (C. 12) Additionally, she filed a Motion for Discovery which requested copies of the logbook and breath machine certifications of accuracy. (C. 13)

On November 29, 2006 the Defendant subpoenaed Chief Konstanty of the Willowbrook Police Department to appear on December 12, 2006 in courtroom 4005 with the logbook regarding the machine that was used on the Defendant. (C. 32)

On December 12, 2006, both parties appeared for the scheduled summary suspension hearing. However, no one appeared pursuant to the defendant's subpoena with the logbook. (C. 63, 67-68) The Defendant requested sanctions, which the Court denied. (C.68) The summary suspension hearing then proceeded. (C. 71) The Defendant moved into evidence the subpoena, and asked the court to apply an evidentiary presumption favorable to the Defendant, based upon the failure of the State to produce the logbook and certifications. (C. 71-77) The trial court agreed, and found that the Defendant had made a prima facie case for a rescission. (C. 79) The court then shifted the burden to the State. (C. 79) The case was continued into the afternoon. (C. 79)

In its case-in-chief, the State then called Darien police officer Skweres to testify.(C. 83) He was asked to read into evidence the entries in the Willowbrook logbook (which the State had procured over the lunch hour).(C. 84-89) The defendant objected to the officer's testimony based upon hearsay and foundation. (C. 84-89) Over objection, the officer testified as to the alleged certifications in the logbook. (C. 84-89) The State then rested without moving the logbook into evidence, and without introducing the Defendant's breath test results into evidence. (C. 89)

The defendant then argued for rescission based upon the failure of the state to lay a proper foundation for admission of the logbook entries, and for failure to move into evidence the breath test results, as required by Illinois law. (C. 89-96)

The trial court denied the Defendant's petition to rescind. (C. 35, 96-97) On that same date, the Defendant filed her timely Notice of Appeal. (C. 36-38)


ARGUMENT

WHEN A DEFENDANT MAKES A PRIMA FACIE CASE THAT THE TEST RESULT IS EITHER UNRELIABLE, OR NOT IN COMPLIANCE WITH THE REGULATIONS, THE BURDEN SHIFTS TO THE STATE TO LAY A FOUNDATION AND ADMIT THE BREATH RESULTS. IF THEY FAIL TO DO SO, THE COURT MUST GRANT THE PETITION TO RESCIND. SINCE THE STATE NEITHER ADMITTED THE RESULTS NOR LAID A PROPER FOUNDATION FOR ADMITTING THE LOGBOOK ENTRIES, THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S PETITION TO RESCIND.

In the instant case, the trial court properly found that the Defendant had made a prima facie case for rescission, based upon the failure of the State to produce the logbook in response to Defendant's subpoena (C. 32) and Motion for Discovery. (C. 13) Summary suspension hearings are civil in nature, and the rules governing civil proceedings, including discovery, apply. People v. Mindham, 253 Ill.App.3d 792, 798, 192 Ill.Dec. 680, 625 N.E.2d 835, 840 (2d. Dist. 1994). The trial court drew a negative inference regarding the testing of the defendant based upon Illinois Pattern Jury Instruction, Civil, No. 5.01 (Supp.2003) "Failure to Produce Evidence or a Witness". The trial court's ruling in that regard is within the sound discretion of the trial court, and that decision will not be reversed absent a clear abuse of discretion. See, e.g. Kersey v. Rush Trucking, Inc., 344 Ill.App.3d 690, 800 N.E.2d 847, 279 Ill.Dec. 559, (2d Dist. 2003)

As stated in People v. Orth (1988), 124 Ill.2d 326, 340, 125 Ill.Dec. 182, 530 N.E.2d 210:

"We therefore hold that once the motorist has made a prima facie case that the breath test result did not disclose a blood-alcohol concentration of 0.10 or more, or that the test result did not accurately reflect his blood-alcohol concentration, the State can only avoid rescission by moving for the admission of the test into evidence and laying the required foundation. Such a foundation will include: (1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the tests was certified by the Department of Public Health, (3) evidence that the machine used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutes prior to the test and, during this period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that the results appearing on the "printout" sheet can be identified as the tests given to the motorist. People v. Winfield (1975), 30 Ill.App.3d 668, 672, 332 N.E.2d 634; People v. Crawford (1974), 23 Ill.App.3d 398, 402-03, 318 N.E.2d 743; see also People v. Black (1980), 84 Ill.App.3d 1050, 40 Ill.Dec. 322, 406 N.E.2d 23." (Bold emphasis added)

In People v. Hamilton (1987), 118 Ill.2d 153, 113 Ill.Dec. 53, 514 N.E.2d 965. the Illinois Supreme Court further explained the holding of Orth, and held that a licensee seeking rescission of summary suspension may also raise the issue of noncompliance with the breath-testing regulations at a rescission hearing.

In this case, the State failed to avoid rescission by failing to move for the admission of the test into evidence and by failing to lay the required foundation as commanded by People v. Orth, infra.

The outcome of this matter is controlled by People v. Graney (2d Dist. 1992), 234 Ill.App.3d at 505, 174 Ill.Dec. 790, 599 N.E.2d 574. In Graney, the Defendant established a prima facie case for rescission. The State unsuccessfully attempted to lay the foundation for the logbook and for admission of the breath test result. On appeal, this Court described the necessary foundation for admission of the logbook entries regarding certification of the machine (which is only one of the many requirements to admit a breath test result):

"The rules of criminal procedure do not apply to a rescission hearing. ( Moore, 138 Ill.2d at 169, 149 Ill.Dec. 278, 561 N.E.2d 648.) Rather, the proceeding is governed by the rules of civil procedure. ( People v. Teller (1991), 207 Ill.App.3d 346, 350, 152 Ill.Dec. 364, 565 N.E.2d 1046.) Thus, the Department's standards are not the only requirements for the admissibility of breath tests into evidence: the ordinary rules for the admissibility of evidence also apply. (See People v. Keith (1992), 148 Ill.2d 32, 42, 169 Ill.Dec. 276, 591 N.E.2d 449.) 'Basic rules of evidence require that a party must lay the foundations for the introduction of a document into evidence.'"

As in Graney, the State's foundation for admission of the logbook entries in this case was almost completely lacking. First, the Darien police officer was not the custodian of Willowbrook's logbook. Second, he failed to establish whether and how he knew that the entries were recorded accurately in Willowbrook's logbook. Third, he never testified that these entries were made in the regular and systematic course of Willowbrook's police business. Lastly, he offered no opinions about the maintenance and upkeep on Willowbrook's breath machine and logbook.

Even if such a foundation for admission was laid, the logbook records themselves were never actually moved into evidence and admitted. Thus, the trial court never even determined for itself whether the machine was in fact properly tested for accuracy by a licensed inspector in accordance with the Regulations.

Finally, the other evidence necessary to avoid a rescission was never presented by the State, such as proof that the motorist was observed for a minimum 20 minutes, or proof that the test on the Defendant was administered properly, or that the machine was operated in accordance with the manufacturer's recommended procedures, or that it was in good working order. As further stated in Graney:

"Moreover, even if the decal were admissible, we agree with the trial court that the State failed to present evidence that the witness/operator complied with the Department's regulations, a prerequisite for the admission of the logbook and the printout *** Without evidence that the witness/operator administered the test properly, 'the State cannot lay the proper foundation for the admission of the breath test results.' ( Keith, 148 Ill.2d at 43, 169 Ill.Dec. 276, 591 N.E.2d 449.) The purpose of requiring compliance with the Department's standards is "that these machines are not foolproof, and require not only the correct use to obtain an accurate result, but also a knowledgeable operator to observe the test." ( Keith, 148 Ill.2d at 44, 169 Ill.Dec. 276, 591 N.E.2d 449.) People v. Graney, supra, 234 Ill.App.3d at 506.

Perhaps most importantly, the State never moved into evidence the Defendant's breath test results. This failure is fatal to the case, as such is required under Orth in order to avoid a rescission.

For all of the above reasons, the court was required to grant a rescission under Orth, Hamilton, and Graney when the State failed to properly rebut the Defendant's prima facie case by moving for admission of the breath test and laying the requisite foundation for the breath test result.


CONCLUSION

Defendant prays that this Honorable Court reverse the order entered by the trial court denying the Defendant's petition to rescind, and in its stead enter an order directing the trial court to rescind the defendant's summary suspension.

CERTIFICATION OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the appendix, is _12__ pages.

Respectfully Submitted,

Donald J. Ramsell

COUNSEL FOR DEFENDANT-APPELLANT


APPENDIX

ITEM PAGE

Petition to Rescind 1

Defendant's Subpoena for Logbook 2

Defendant's Motion for Discovery 3

Order Denying Summary Suspension Hearing (12-12-2006) 4

Notice of Appeal (12-12-2006) 5


INDEX TO THE RECORD

C0000001 11-06-06 Complaint & Tickets

C0000005 11-06-06 Warning to Motorist

C0000006 11-06-06 Law Enforcement Sworn Report

C0000009 11-06-06 Bail Bond

C0000010 1-07-06 Notice of Filing

C0000011 11-07-06 Appearance

C0000012 11-07-06 Petition to Rescind Summary Suspension

C0000013 11-07-06 Motion for Discovery

C0000014 11-07-06 Motion to Produce Confessions

C0000015 11-07-06 Subpoena

C0000016 11-07-06 Subpoena

C0000017 11-07-06 Motion to Produce Confessions

C0000018 11-07-06 Motion for Discovery

C0000019 11-07-06 Notice of Filing

C0000020 11-07-06 Petition to Rescind Statutory Summary Suspension

C0000021 11-07-06 Appearance

C0000022 Continue Summary Suspension

C0000023 11-09-06 Protective Order

C0000026 11-13-06 Notice of Filing

C0000027 11-13-06 Subpoena

C0000031 11-20-06 Confirmation of Statutory Summary Suspension

C0000032 11-29-06 Subpoena

C0000033 11-29-06 Subpoena

C0000034 11-29-06 Subpoena

C0000035 12-12-06 Order

C0000036 12-12-06 Notice of Filing

C0000037 12-12-06 Writ of Precipe

C0000038 12-12-06 Notice of Appeal

C0000039 12-12-06 Transfer to Presiding Judge for Re Assignment

C0000040 12-12-06 Appearance

C0000041 12-12-06 Order

C0000042 12-12-06 Notice of Filing

C0000043 12-12-06 Motion to Quash Arrest and Suppress Evidence

C0000045 12-13-06 Subpoena

C0000048 12-13-06 Notice of Filing

C0000049 12-13-06 Protective Order

C0000052 12-28-06 Impounded Document

C0000053 01-17-07 Order for a Judicial Driving Permit

C0000054 01-18-07 Notice of Filing

C0000055 01-18-07 Motion to Quash and Suppress Evidence

C0000057 Copy of Back of File Jacket

C0000058 01-02-07 Report of Proceeding from 11-28-06

C0000062 01-02-07 Report of Proceedings from 12-12-06

C. 000083-000089 Testimony of Officer Skweres