APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
524 N.E.2d 723, 170 Ill. App. 3d 409, 120 Ill. Dec. 693 1988.IL.867
Appeal from the Circuit Court of Piatt County; the Hon. John P. Shonkwiler, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH and KNECHT, JJ. concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
On March 28, 1986, defendant Robert D. King was charged by uniform traffic citation and complaint with driving while under the influence of alcohol and drugs (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501(a)(2), (a)(3)). Defendant agreed to submit to a blood-alcohol test, which disclosed an alcohol concentration of 0.25. Thereafter, the arresting officer completed a sworn report, certifying that the defendant was asked to submit to a chemical test to determine the alcohol content of his blood and was warned of the consequences pursuant to section 11-501.1(c) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(c)). The report further stated that the defendant submitted to testing which disclosed an alcohol concentration of 0.25, that the defendant's driver's license would be suspended for a period of three months, and that the officer served notice of statutory suspension upon the defendant. (See Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501.1(d), (f).) As reasonable grounds to believe the defendant was in violation of section 11-501 (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501), the officer listed the following: "[Marijuana] and alcohol found in [defendant's] vehicle. [Defendant] smelled of [an] alcoholic beverage and staggered when walking. [Vehicle] parked behind burglarized business, then drove around to front and parked again."
On May 19, 1986, defendant filed a pro se petition to rescind the statutory summary suspension. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1(b).) A hearing on defendant's petition was held on June 23, 1986, and defendant was represented by attorneys L. Keith Hays, Jr., and Joe Hedge. The first witness to testify at the hearing was the defendant. The defendant stated that at the time he was arrested on March 28, 1986, he was located near a phone booth and was "bumming around, looking for change and trying to find the number [he] was going to call, a guy [there] in town."
The other witness to testify was the arresting officer, Frank Pirtle. Pirtle, a patrolman for the City of Monticello, testified that on March 28, 1986, he received information from a Piatt County deputy that a white van with a left turn signal on was parked on the northwest side of the bowling alley. Pirtle stated that he proceeded to that area, observed the van and then proceeded around the motel located directly north of the bowling alley and approached the van from behind. According to Pirtle, as he approached the van from the rear, the driver of the van started the engine, drove out onto a public roadway, then turned left and proceeded into the motel parking lot. Pirtle then proceeded to the location of the van. As he did so, the van began to pull out of the motel parking lot. Pirtle stopped the van at that point. Pirtle identified the driver of the van as the defendant.
Pirtle further testified that after the van was stopped, the defendant exited the vehicle and had a conversation with him. Pirtle noticed a "strong odor of alcoholic beverage" on the defendant's breath, and that defendant's speech was "thick tongued." Pirtle described the defendant's balance as "very unstable" and indicated that the defendant staggered against the van upon exiting it, swayed back and forth while the two were talking and nearly fell down several times. In Pirtle's opinion, the defendant was "extremely intoxicated" at the time. Pirtle testified that he did not administer field sobriety tests at the scene because the defendant "was having a very hard time standing up just speaking with him and [Pirtle] was fearful that if [he] did run [the defendant] through the balance tests [the defendant] would fall down on the concrete pavement and injure himself." Instead, Pirtle placed the defendant under arrest and then took him to the Piatt County jail, where a blood-alcohol test was administered.
At the Conclusion of the hearing, the trial court discussed the evidence that had been presented, found that the defendant had not met his burden of proof on the petition, and denied rescission.
On August 14, 1986, defendant filed a petition for restoration of his driver's license and privileges. The administrative petition for restoration was allowed on August 21, 1986. Shortly thereafter, defense counsel Hays assumed representation of Officer Pirtle on an unrelated matter. On November 12, 1986, Kelly D. Long entered his appearance as attorney for the defendant. Then on November 13, 1986, attorneys Hedge and Hays formally withdrew as attorneys of record for the defendant.
On July 1, 1987, Long filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401), seeking rescission of the defendant's statutory summary suspension. The petition alleged that the trial court was without jurisdiction to allow a statutory summary suspension of the defendant's driver's license as the defendant had not been observed on a public highway and was on a private parking area at the time he was arrested for driving under the influence of alcohol. The petition further alleged that defendant's previous counsel had a conflict of interest involving his representation of the defendant and was negligent in his representation. Finally, the petition alleged that the allowance of the statutory summary suspension was improper, contrary to Illinois law and violative of defendant's constitutional rights. A hearing on the petition was held on August 13, 1987. Long argued the allegations in the petition but presented no evidence. Following the hearing, defendant's petition was denied.
On August 19, 1987, the State filed a petition to assess attorney's fees pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). The petition alleged that in filing the petition to rescind under section 2-1401, defense counsel Long failed to order a transcript of the June 23, 1986, rescission hearing to determine what evidence was presented on the issue of whether defendant had operated a motor vehicle on a public highway. The State argued that had Long reviewed the transcript he would have read the undisputed testimony of the arresting officer that the defendant was observed driving on a public highway. The petition next alleged that Long failed to contact former defense counsel concerning the merits of the first petition to rescind or any possible conflict of interest. The State argued that had Long consulted the former attorney he would have learned that as of June 23, 1986, former counsel had not met, seen or represented the arresting officer. The petition further alleged that no evidence was presented to support the allegations in defendant's petition under section 2-1401. The State sought $231.25 in attorney fees, arguing that had Long made a reasonable inquiry into the facts of the case, the petition would not have been filed and the State's Attorney would not have been forced to spend unnecessary time in defending the action.
A hearing was held on the State's petition to assess the attorney fees on September 29, 1987. On October 5, 1987, the court entered its written order imposing sanctions pursuant to section 2-611 (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). The court found, among other things, that Long failed to make any reasonable investigation or inquiry into any of the factual allegations contained in the petition, prior to preparing, filing, or arguing the petition. The court further found that Long acted unreasonably and without any foundation in making the factual allegations contained in the petition. In addition, the court stated that Long violated section 2-611 in that he knew or should have known that the petition was not well ...