No. 2—10—0143 Opinion filed March 16, 2011 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellant, ) ) v. ) No. 09—DT—4556 ) CAROL A. ARONSON, ) Honorable ) Robert G. Kleeman, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.
OPINION
On January 8, 2010, after a hearing, the trial court granted the petition of defendant, Carol
A. Aronson, to rescind the statutory summary suspension of her driving privileges. The State
appeals, arguing that, in light of the trial court’s finding that the arresting officer’s testimony was
credible, the court erred in finding that the State’s inability to produce the video of defendant’s
performance on field sobriety tests required the suspension revocation. For the following reasons,
we affirm.
I. BACKGROUND
On November 15, 2009, defendant was arrested for three alleged violations of the Illinois
Vehicle Code (Code): (1) DUI (625 ILCS 5/11—501(a)(2) (West 2008)); (2) speeding (625 ILCS No. 2—10—0143
5/11—601(b) (West 2008)); and (3) improper lane usage (625 ILCS 5/11—709(a) (West 2008)).
On December 11, 2009, defendant petitioned pursuant to section 2—118.1 of the Code (625 ILCS
5/2—118.1 (West 2008)) to rescind the statutory summary suspension of her driving privileges,
challenging, among other things, whether the arresting officer had reasonable grounds to believe that
she was driving under the influence of alcohol. A hearing on the petition was scheduled for January
8, 2010.
A. Motion for Sanctions
Prior to the hearing on the petition, defendant moved for sanctions against the State.
According to the motion, on December 30, 2009, defendant subpoenaed the Oak Brook police
department, requesting any videos relating to her case. On January 8, 2010, the police department’s
court-liaison officer informed defendant that the video of her stop and performance on the field
sobriety tests was “not viewable.” Defendant argued in her motion for sanctions that the State’s
failure to produce the video was tantamount to the loss or destruction of evidence and, therefore, the
trial court had the discretion to sanction the State’s unreasonable noncompliance with discovery.
Defendant requested that, in light of the State’s failure to properly preserve and produce the evidence,
the court should, as a sanction, grant defendant’s petition to rescind the statutory summary
suspension.
On January 8, 2010, the trial court held a hearing on the motion for sanctions. There, the
assistant State’s Attorney explained to the court that, according to his conversation with “the officer,”
he understood:
“[T]here is a camera in the officer’s vehicle. When he returned to the station, there was some
sort of download process with the camera. There was a person at the police department, I
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do not have that person’s name and I don’t have that person in court with me today. The
officer tells me that he is in charge of downloading the videos and things of that nature. This
person told Officer Foltyniewicz that the video was unavailable, that it did not work. That
being the case, there was a camera, I understand, but there is not an actual video of the stop.”
The State represented that Officer Foltyniewicz was present in court and had an independent
recollection of the events relating to the stop and arrest of defendant. Therefore, the State argued,
the fact that there was no recording available did not warrant a sanction of rescission. Instead, the
State asserted, the absence of a video should be considered as relevant to the weight of the evidence.
Before ruling, the court sought clarification that, according to the State, the field sobriety test
video was “in some fashion technically” unavailable because it did not properly download. The State
agreed, and defense counsel represented that he, too, was present when Officer Foltyniewicz
explained that “he didn’t know why there was no video. He has no knowledge.”
The court denied the motion for sanctions, noting that there was no evidence presented that
there was an intentional or willful destruction of any evidence. However, the court noted:
“[I]t is something that I think I can and, frankly, I will consider [at the rescission hearing].
There is a video. I have no explanation as to why that video doesn’t exist. Again, I am not
making any finding that it was willful or intentional, but the impact of that is going to be
something that I can and I will consider during the course of the hearing. *** I will consider
that failure to produce that video. I think it was something that was in the possession of law
enforcement. It doesn’t exist and there is no explanation for that, and that’s a factor I can and
will consider.”
B. Rescission Hearing
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The rescission hearing commenced immediately after the court denied defendant’s motion for
sanctions. Defendant called as her first witness Officer Foltyniewicz, who testified to the
circumstances surrounding his stop of defendant. In sum, Foltyniewicz testified that his attention was
drawn to defendant’s vehicle when defendant’s vehicle slightly straddled a lane while at a stop light.
He subsequently followed defendant through a construction zone where another lane had been added
and orange “horses” blocked certain areas, and he witnessed her vehicle change lanes without
signaling. At that time, Foltyniewicz activated his vehicle’s emergency lights and defendant pulled
over in an appropriate manner. After approaching the vehicle, Foltyniewicz smelled alcohol;
defendant told him that her husband (in the passenger seat) had consumed alcohol that evening.
Foltyniewicz did not notice anything unusual about defendant’s speech, nor did he observe anything
else about her that raised suspicion. However, he asked her to step out of the vehicle to determine
whether she, as opposed to her husband, had consumed alcohol. Defendant exited the vehicle in an
appropriate manner, with no apparent balance problems; she did not use the vehicle for support; she
walked to the back of the vehicle without support; and she did not wobble, sway, or fall over.
Foltyniewicz detected the odor of alcohol coming from defendant’s breath, and he asked defendant
to perform four field sobriety tests. Ultimately, he concluded that she failed three of the tests.
Specifically, on the walk-and-turn test, defendant did not stumble or fall, but Foltyniewicz observed
that defendant did not touch toe-to-heel, raised her arms more than six inches from her body, and did
not follow instructions on the turn. Further, on the one-leg-stand test, defendant put her foot down
before Foltyniewicz told her to stop. Finally, on the breath test, defendant formed a tight seal with
her lips around the tube, but did not blow as instructed and, therefore, no results were obtained.
According to Foltyniewicz, defendant admitted that she had earlier consumed one glass of wine.
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Foltyniewicz arrested defendant. In his testimony, Foltyniewicz made no mention of the alleged video
recording.
Thereafter, defendant, a home health care nurse, testified to her version of the events,
including her belief that she did not fail the sobriety tests. Specifically, defendant testified that she
walked the walk-and-turn test as instructed, including touching heel-to-toe, and that she had her
hands at her sides during the one-leg-stand test, but, because she was “very nervous,” lights were
shining, and “a lot was going on,” she did not know whether she held her arms more than six inches
from her body. Defendant denied telling Foltyniewicz that she consumed any alcohol that night.
In closing, defense counsel argued that the video would have been dispositive of the case
because, while Foltyniewicz testified that defendant failed the sobriety tests, defendant credibly
testified that she passed the tests. In response, the State argued that Foltyniewicz testified more
credibly to the events than defendant and that defendant offered no explanation for the problems with
her driving that initially brought her to Foltyniewicz’s attention.
The court granted defendant’s petition to rescind the suspension. The court noted that
Foltyniewicz was “very credible” in its mind. However:
“The concern that I have, the issue in my mind, is the field sobriety tests. Again, I
think the officer testified credibly as to the defendant’s performance ***. I found the officer
to be more credible [than defendant]. The question I have, and this is troubling to me, is that
there is a tape. It was inadvertently not recorded, destroyed, I don’t know if you want to call
it that, which is what the cases say. But there was a tape recording that we don’t have. It
wasn’t intentional based upon what’s been represented to me, but through no fault of the
defense, they were diligent in trying to get a tape. I do not think that it automatically
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warrants reversal. If it was intentional, perhaps it would be different. But that’s where I
come down.
If it was a case where there was no tape, this call would be easy for me. I think the
officer testified more credibly, but the absence of the tape raises a concern in my mind.
Again, I don’t find that it was intentional, it’s inadvertent, but it’s in control of the State.
There’s principles of civil law that indicate that if there’s evidence that was in the possession
of one party and it’s destroyed, whether it’s inadvertent or not, there is an inference to be
drawn that it was detrimental to that party. Again, I don’t know that, but that’s the concern
that I have is that there was a tape that the defense can’t have, through no fault of theirs.
It’s for that reason, and I am reluctant to do it, I don’t know how to express that any
better, reluctantly. The officer testified credibly. I think he behaved like a professional, but
because of the absence of the tape, that it was inadvertently not recorded or destroyed, I am
going to rescind the summary suspension.” (Emphases added.)
After orally announcing its ruling, the trial court signed a preprinted summary suspension
order form that was filled out by defense counsel. The order reflected that the court had ruled in
defendant’s favor and checked, as its reason for the decision, the option: “Officer Failed to Answer
Defendant’s Subpoena (Code 4250).”1 Similarly, the circuit court clerk completed and signed a form
1 The six other options the order form provides as reasons for rescinding the summary
suspension include: (1) “No D.U.I. Arrest (Code 4230)”; (2) “No Warning Given (Code 4215)”; (3)
“No Reasonable Grounds (Code 4220)”; (4) “Did Not Refuse Test (Code 4240)”; (5) “Not a B.A.C.
of 0.08 or more (Code 4245)”; and (6) “Other (explain) _______ (Code 4255).”
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notice to the Secretary of State, indicating that, after a hearing, the court had ruled to rescind
defendant’s summary suspension because “OFFC FAILED TO ANSWER.” The State appeals.
II. ANALYSIS
Statutory summary suspension hearings are civil. People v. O’Connor, 313 Ill. App. 3d 134,
136 (2000). A trial court’s order to grant or deny a petition to rescind a statutory summary
suspension is a final and appealable order. Id. In a statutory summary suspension hearing, the
defendant bears the burden of establishing by a preponderance of the evidence a prima facie case for
rescission.2 People v. Wear, 229 Ill. 2d 545, 560 (2008); People v. Hacker, 388 Ill. App. 3d 346, 349
(2009). The burden then shifts to the State to produce evidence justifying the suspension. Wear, 229
Ill. 2d at 560. In reviewing a trial court’s ruling on a petition to rescind a summary suspension, we
defer to the trial court’s findings of fact, reversing them only if they are against the manifest weight
of the evidence, but review de novo the court’s ultimate determination of whether the petition to
rescind should be granted. Id. at 561-62; see also People v. Tomczak, 395 Ill. App. 3d 877, 880
(2009); Hacker, 388 Ill. App. 3d at 350.
2 The defendant may challenge the suspension on four bases: (1) whether the defendant was
placed under arrest for an offense under section 11—501 of the Code (625 ILCS 5/11—501 (West
2008)); (2) whether the officer had reasonable grounds to believe that the defendant was driving or
in actual physical control of a motor vehicle while under the influence of alcohol, another drug, or
both; (3) whether the defendant received the statutory motorist’s warning and refused to complete
the test or tests; and (4) whether the test or tests disclosed an alcohol concentration of 0.08 or more.
625 ILCS 5/2—118.1(b)(1) through (b)(4) (West 2008).
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The State argues that the trial court’s ruling was improper because, despite its denial of
defendant’s motion for sanctions, the court in fact sanctioned the State and granted the petition for
rescission solely based on a video that was never created. The State argues that the court’s ruling
creates a new, “technical,” nonexistent statutory factor for rescinding summary suspensions that is
contrary to this state’s public policy to keep public highways safe.
First, we are compelled to address the State’s assertion that the court apparently did not
understand that, as opposed to a video that existed and was lost or destroyed, “the video in question
never came into existence.” According to the State, the technical problem preventing a successful
download equates to a video that never came into existence. However, the fact that a video could
not be produced does not mean that a recording was not made. The court’s understanding that the
video camera in Foltyniewicz’s car recorded the stop, but that the recording could not be produced
because of a technical problem, is supported by the record. Specifically, at the hearing on the motion
for sanctions, the State represented that there was a video camera in Foltyniewicz’s car, that there
was a downloading issue with the camera, and, consequently, that the video was unavailable. This
assertion presupposes that there was a recording, because, if no recording was made, efforts to
download would be unnecessary. Further, the State agreed with the court’s characterization that the
video was technically unavailable, and it did not assert to the court that, in fact, no recording was ever
made. As such, we find unavailing the State’s argument that the court effectively ruled that rescission
is warranted whenever there is no tape recording of a stop. The court made no such ruling. Rather,
noting that, if “there was no tape, this call would be easy for me,” and that, “in the absence of the
tape” (not a tape), it would rescind the suspension, the court simply concluded that there was a
recording taken, but the State was unable to produce the recording. (Emphases added.)
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Next, we disagree with the State’s assertion that the trial court rescinded the suspension as
a sanction. The record reflects that the court denied defendant’s motion for rescission as a sanction
for the video’s absence. In doing so, it made clear that, where there was no suggestion that the State
intentionally destroyed the video, rescission as a sanction was inappropriate. Further, the court
clarified that it agreed with the State’s argument on the motion for sanctions that, while it was
inappropriate under these circumstances to grant rescission solely based on the absence of the video,
it could consider the video’s absence when weighing the evidence. Nothing in the court’s subsequent
ruling on the petition to rescind reflects to us that the court departed from its position regarding
sanctions.3
3 In light of our conclusion that the court did not rescind the suspension as a sanction, we
conclude that, despite its selection on the order, the court inherently granted the rescission because
the video’s contents would have been relevant to the issue of reasonable grounds. While the court
signed the order form (prepared by defense counsel) that marked the officer’s “failure to answer” as
the basis for its decision, we do not believe that the selection appropriately fits the court’s oral
findings. For example, an officer’s “failure to answer” likely pertains to cases where an officer fails
to answer a subpoena to appear at the hearing and, even then, rescission is not automatic. See 625
ILCS 5/2—118.1 (West 2008) (“[T]he hearing may be conducted upon a review of the law
enforcement officer’s own official reports; provided however, that the person may subpoena the
officer. Failure of the officer to answer the subpoena shall be considered grounds for a continuance
if in the court’s discretion the continuance is appropriate.” (Emphasis added.)). Under the facts here,
reading the court’s selection of an officer’s “failure to answer” as akin to a statement that it based its
decision to rescind solely on the officer’s failure to produce the video would suggest that rescission
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As such, we disagree with the State that the court ultimately granted rescission based solely
on the missing video. Indeed, the court’s ruling reflects that it considered and weighed both
defendant’s and Foltyniewicz’s testimony. The court determined that Foltyniewicz testified credibly.
However, the court also discussed the general proposition that, when evidence in one party’s control
is missing or destroyed, an inference may be drawn that the evidence was detrimental to that party.
Thus, in its process of weighing the in-court testimony, the court factored into its deliberations that
the video would have spoken to the credibility of the testimony and presumptively would have
weighed against the State. As such, although the court found Foltyniewicz more credible than
defendant based solely on their testimony, the court implicitly determined that defendant’s testimony
(which, incidentally, it did not state was incredible), when bolstered by the presumption that the video
would have been detrimental to the State, outweighed Foltyniewicz’s testimony such that rescission
was warranted. We also note that, in finding Foltyniewicz’s testimony credible, the court inherently
accepted his testimony that weighed in defendant’s favor, i.e., that she did not have slurred speech,
had no apparent balance problems, did not use the vehicle for support, etcetera. We cannot conclude
that the court’s findings in this regard are against the manifest weight of the evidence. Giving
deference to the court’s findings that Foltyniewicz’s testimony was outweighed by the evidence in
was granted as sanction. Clearly, however, the court did not intend to impose rescission as a sanction
here. Rather, as further explained below, we read the court’s ruling as finding that the video would
have been relevant to witness credibility on “reasonable grounds.” Thus, although the failure to
answer the subpoena for the video was part of the court’s basis for rescission, the “reasonable
grounds” option on the order form would have been the more appropriate selection, and we rely on
the court’s oral findings rather than the checked box.
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defendant’s favor and, accordingly, that there were no reasonable grounds to believe that defendant
was driving under the influence of alcohol, we agree that rescission was warranted.
The cases relied upon by the State do not warrant a different conclusion.4 For example, in
People v. Camp, 352 Ill. App. 3d 257, 258 (2004), the defendant moved to dismiss DUI charges
against him, arguing that he could not receive a fair trial because the State lost a videotape of his field
sobriety tests. The trial court granted the request, and this court reversed on the basis that dismissal
of the charges was an excessive sanction for the inadvertent loss of the tape. Id. Nevertheless, while
we found dismissal of the charges to be a sanction disproportionate to the discovery violation, we
stated that it would be appropriate for the factfinder to consider “less drastic” options, such as that
“the absence of the videotape requires an inference that the tape’s contents are favorable to
defendant.” Id. at 262. Here, the trial court rejected defendant’s request for rescission as a sanction
(similar to the defendant’s request for outright dismissal of the charges in Camp) and, instead,
proceeded to a hearing. At the conclusion of the hearing, and in accord with Camp, the trial court
applied to its deliberations the “less drastic” option of inferring that the absent video contained
contents favorable to defendant.
Similarly, People v. Schambow, 305 Ill. App. 3d 763 (1999), is in several respects
distinguishable from the instant case. In Schambow, the defendant objected to the State’s inadvertent
destruction of audiotapes that contained police radio communications from the time of the
defendant’s DUI arrest. The trial court rescinded the defendant’s summary suspension as a discovery
sanction. Rejecting the defendant’s due process argument, the appellate court reversed the rescission,
4 The State moved to cite foreign authority. We granted the State’s motion; however, we do
not find it necessary to rely on the foreign authority.
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finding, among other things, that the audiotapes would have held little exculpatory value on the
question of whether the officer had reasonable grounds to believe that the defendant was operating
a vehicle while under the influence of alcohol, whether the defendant refused to take a Breathalyzer
test, or whether his BAC exceeded legal limits. Id. at 768. Here, in contrast, the court did not
rescind the suspension as a sanction or prior to hearing, and we note that, unlike the audiotapes in
Schambow, a video recording of defendant’s performance on the field sobriety tests would be
extremely relevant and potentially exculpatory on the question of reasonable grounds.
People v. Leannah, 72 Ill. App. 3d 504 (1979), also fails to impact our decision. In Leannah,
a videotape of the defendant at the police station on the night of his arrest was accidentally destroyed.
The trial court, before trial, dismissed the charges against the defendant as a sanction for the State’s
discovery violation. The appellate court reversed, rejecting the defendant’s due process claims and
finding the sanction too harsh under the circumstances. Id. at 508. Again, here, the trial court did
not rescind the suspension as a sanction prior to hearing. Instead, the court held an evidentiary
hearing and weighed the evidence. Accordingly, we disagree with the State that the foregoing cases
hold that a missing video cannot justify rescission. Rather, the cases do not address the factual
situation here, where the court did not dismiss charges or rescind because a video was missing, but,
rather, applied a presumption to its weighing of the evidence.
Finally, we note that we also disagree with the State’s assertion that the court’s ruling here
granted rescission on a “technicality.” For example, this is not a situation where rescission was
granted because an officer failed to forward to the clerk of the court a sworn report—a curable defect
having no real prejudice to the defendant. See, e.g., People v. Dominguez, 367 Ill. App. 3d 171
(2006). Instead, the court considered that a recording was made on the very issue disputed by the
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parties, i.e., whether reasonable grounds existed for Foltyniewicz to believe that defendant was
driving while intoxicated. That video, which might have held exculpatory value for defendant, was
unavailable. The court did not rescind the suspension as a sanction to the State, but it did inherently
find that the information presumed to be on the video, coupled with defendant’s testimony,
outweighed the evidence in the State’s favor.
In conclusion, we reject the State’s argument on appeal that the trial court erred in rescinding
defendant’s summary suspension.
III. CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
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