APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
505 N.E.2d 402, 153 Ill. App. 3d 292, 106 Ill. Dec. 96
Appeal from the Circuit Court of Brown County; the Hon. David K. Slocum, Judge, presiding. 1987.IL.282
Justice McCullough delivered the opinion of the court. Spitz, P.J., and Green, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
On January 23, 1986, the defendant was charged by citation complaint with driving under the influence of alcohol. Subsequently, a sworn report and notice of summary suspension were filed on March 5, 1986. The defendant filed a petition to rescind the suspension on March 17, 1986, and on May 27, 1986, the trial court found that the State had the burden of proceeding and the burden of proof at the rescission hearing, that the State had not met the burden, and granted the defendant's petition to rescind the summary suspension. The State appeals, asserting that the trial court was incorrect in granting the motion to rescind the suspension based upon the premise that the State had the burden of proof.
In the court's order of May 27, 1986, it recites that the parties argued prior to proceeding as to who had the responsibility for the burden of proof. The court indicated and ruled that the State had the burden of proof and of going forward with the evidence in any proceeding to rescind the statutory summary suspension. The State declined to present evidence. The defendant presented evidence; the State presented evidence in what the court called rebuttal. The court in its order stated, "court considers evidence and arguments presented and persists in its earlier ruling that the State has the burden of proof and burden of going forward with the evidence and finds that the State has failed to meet its burden of proof." Upon that finding, the trial court rescinded the statutory summary suspension.
There is nothing in the record to indicate what evidence was presented to the trial court. However, the only determination to be made by this court is whether the trial court's ruling was correct in finding that the State had the burden of going forward with the evidence and the burden of proof on a motion to rescind a summary suspension.
It is settled that due process does not require a prior adversary hearing in all cases in which a significant private interest is jeopardized by governmental regulatory action. Dixon v. Love (1977), 431 U.S. 105, 97 S. Ct. 1723; Cafeteria & Restaurant Workers Union, Local 473 v. McElroy (1961), 367 U.S. 886, 6 L. Ed. 2d 1230, 81 S. Ct. 1743.
The legislature of a State has the power to prescribe new and alter existing rules of evidence or prescribe methods of proof. (People v. Wells (1942), 380 Ill. 347, 44 N.E.2d 32; People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 461 N.E.2d 410.) Also, there is no violation of this doctrine because the circuit court, and not the Secretary of State, holds the hearing after a summary suspension has taken effect. (People v. Farr (1976), 63 Ill. 2d 209, 347 N.E.2d 146.) In Farr, the court rejected an argument that such provision would constitute an unlawful delegation of executive authority to the judiciary.
 the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
 the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" Citing Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.
The Eppinga court stated that, "under the holdings in Love and [ Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612], due process does not mandate a hearing prior to the deprivation of this interest. Too, the governmental interest (the third factor), as in Love and Montrym, is highway safety. More specifically, as in Montrym, the safety hazard is drunk drivers. It is clear that a serious threat to human life and well-being is posed by ...