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10/15/87 the People of the State of v. Michael A. Martin

October 15, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL A. MARTIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

514 N.E.2d 815, 161 Ill. App. 3d 472, 113 Ill. Dec. 33

Appeal from the Circuit Court of Du Page County; the Hon. C. Andrew Hayton, Judge, presiding. 1987.IL.1544

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Michael Martin, appeals from the judgment of the circuit court of Du Page County continuing the summary suspension of his driver's license. Defendant argues that the trial court erred in placing the burden of proof on defendant and in continuing the summary suspension in the absence of any evidence by the State of defendant's blood-alcohol level. We affirm.

On July 28, 1986, defendant was involved in an automobile accident at the intersection of Routes 5 and 53 in Du Page County. Following an investigation by Trooper Willie Sanford of the Illinois State Police, defendant was charge with several offenses, including driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a) (a)). After receiving the results of a blood test submitted to by defendant, Sanford filed a sworn report with the circuit court of Du Page County, and defendant was notified that his driving privileges would be summarily suspended pursuant to section 11-501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(d)). Section 11-501.1(d) provides:

"If the person refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more, the law enforcement officer shall immediately submit a sworn report to the circuit court of venue and the Secretary of State, certifying that the test or tests was or were requested pursuant to paragraph (a) and the person refused to submit to a test, or tests, or submitted to testing which disclosed an alcohol concentration of 0.10 or more." Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(d).

Defendant then filed his petition for judicial review of the summary suspension. Defendant's petition specified that one of the issues at the hearing would be whether defendant was found to have a blood-alcohol level greater than .10.

At the hearing, the trial court informed defendant that defendant would have the burden of proof on all issues. Defendant called Sanford and defendant as witnesses. Sanford testified that he met defendant at the hospital emergency room and requested him to take a breathalyzer test. Defendant informed Sanford that this would be difficult because defendant had sustained head injuries. Defendant then agreed to submit to a blood test. A hospital technician administered the test and delivered the sample to Sanford. Sanford subsequently mailed the sample to the State police laboratory in Springfield for testing. He later received the results of the test in a letter from the laboratory indicating that defendant's blood-alcohol level was .15. Sanford then filed his sworn report with the circuit court of Du Page County and notified defendant that his driving privileges would be summarily suspended.

At the Conclusion of the hearing, the court entered a finding in favor of the State. Defendant appeals.

Defendant first contends that the trial court erred in placing the burden of proof on defendant. This court has recently decided this issue adversely to defendant. (See People v. Griffith (1987), 153 Ill. App. 3d 856, 861, citing People v. Blythe (1987), 153 Ill. App. 3d 292, 297-98, appeal denied (1987), 115 Ill. 2d 544.) As the Blythe court stated:

"Section 11 -- 501.1(d) requires that the law enforcement officer's report be on file in order to ignite the suspension of the driver's license. [Citation.] Because it is required to be on file in the circuit court record, it is appropriate that in order for the defendant to attack his suspension he also must attack the law enforcement officer's sworn report and, for that reason, has the burden of proof and the burden to proceed." (153 Ill. App. 3d 292, 297-98.)

Therefore, although a person may challenge a summary suspension by filing a petition to rescind, he has the burden of proof and the burden to proceed on that petition. (People v. Griffith (1987), 153 Ill. App. 3d 856, 861; People v. Blythe (1987), 153 Ill. App. 3d 292, 297-98, appeal denied (1987), 115 Ill. 2d 544.) Defendant presents us with no compelling reason to reconsider these ...


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