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07/13/87 In Re Summary Suspension of Driver's License of John E.

July 13, 1987

IN RE SUMMARY SUSPENSION OF DRIVER'S LICENSE OF JOHN E.


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

TRAINOR (The People of the State of Illinois,

Petitioner-Appellee, v.

John E. Trainor, Respondent-Appellant)

510 N.E.2d 614, 156 Ill. App. 3d 918, 109 Ill. Dec. 746 1987.IL.988

Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On July 24, 1986, the circuit court of Livingston County conducted a hearing pursuant to the defendant's request under section 2-118.1 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1) to rescind the defendant's statutory summary suspension imposed for refusing to take the breath test under sections 11-501.1 and 6-208.1 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501.1, 6-208.1) after being arrested for driving under the influence of alcohol in violation of section 11-501 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501). After hearing testimony, the court denied the defendant's petition. Defendant appeals this denial alleging (1) there was insufficient evidence to support the court's finding that reasonable grounds existed for the driving under the influence arrest; (2) the suspension should have been rescinded since the hearing was not held within the 30 days mandated by section 2-118.1 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1); (3) the nostay provision of section 2-118.1 of the Code violates the constitutional provisions of separation of powers and due process; and (4) the suspension should have been rescinded since the State failed to prove the defendant had been advised of the consequences of his refusal. We reverse.

On April 27, 1986, the defendant was arrested, following an accident, for the offense of DUI. Defendant received a statutory summary suspension for 12 months pursuant to section 11-501.1 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1) for failure to submit to chemical tests at the request of the arresting officer. Confirmation of that suspension was filed on May 9, and the suspension was to become effective on June 12, the 46th day following the arrest. On May 16, defendant filed a request for a hearing pursuant to section 2-118.1 of the Code, asking the summary suspension be rescinded. The hearing was set for May 27, at which time defendant filed a motion for substitution of Judges. It was granted, and a new Judge was appointed on May 29. On June 3, the court received a letter from defendant advising the court of the filing date of his motion and requesting the hearing be set up promptly. On July 3, defendant filed a motion to rescind suspension for lack of timely hearing. This was denied on July 17.

The implied-consent hearing on the original motion to rescind was held on July 24, 1986. The evidence showed that defendant was involved in a one-vehicle accident late at night, striking a light pole and knocking down power lines. At the time the police arrived, he was attempting to restart his vehicle. The force of the accident was sufficient to jam the car door. After exiting the vehicle, it was determined that defendant had been drinking earlier and had been involved in a fight located at a local tavern. Defendant had an odor of alcohol about him and mumbled as he spoke. He was placed under arrest for DUI. The officers testified at that point defendant was read "The Warning for Refusal to Take the Test," and this was explained to the defendant several times. At no time was the warning introduced into evidence, nor was its contents explained by the officers. Defendant refused the test. The court found the requirements of section 2 -- 118.1(b) had been met and denied the motion to rescind.

Defendant requested a stay of the court's order pending appeal. The court denied this motion, believing it had no authority under section 2 -- 118.1. Defendant appeals.

This appeal involves the new statutory summary suspension framework which was adopted by the legislature as a way of toughening up DUI enforcement and became effective on January 1, 1986. Prior to this, the old implied-consent law was contained in one section of the Code. The implied-consent law is now included in the summary suspension framework contained in sections 2-118.1, 6-206.1, 6-208.1, and 11-501.1 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 2-118.1, 6-206.1, 6-208.1, 11-501.1).

First, we agree with the court's finding that reasonable grounds existed for the defendant's arrest for DUI. While the burden of proceeding and the burden of proof is on the defendant (People v. Blythe (1987), 153 Ill. App. 3d 292, 505 N.E.2d 402), in this case, the State accepted the burden of going forward. The civil standard of preponderance of the evidence controls. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1; People v. Greenspon (1984), 129 Ill. App. 3d 849, 473 N.E.2d 331.) The findings of the trial court in an implied-consent hearing should not be overturned unless they are against the manifest weight of the evidence. (People v. Jacquith (1984), 129 Ill. App. 3d 107, 472 N.E.2d 107; People v. Bafia (1983), 112 Ill. App. 3d 710, 445 N.E.2d 878.) The accident, the lateness of the hour, the efforts to restart the ...


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