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08/03/89 the People of the State of v. Robert Johnson Et Al.

August 3, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

ROBERT JOHNSON ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 1226, 186 Ill. App. 3d 951, 134 Ill. Dec. 719 1989.IL.1195

Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Cox and the Hon. Donald J. Hennessy, Judges, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. WOODWARD and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The State appeals from the judgments of the circuit court of Du Page County which rescinded the summary suspension of the driver's licenses of Robert Johnson, Roger McGehee, Richard Weigel, and James Gilloghy. Pursuant to the State's motion, we have consolidated these cases on appeal because each arose under a similar factual situation and raises the same issue. On appeal, the State contends that the failure of the arresting officers to appear at defendants' summary suspension hearings did not provide a basis for rescinding the suspension of defendants' driver's licenses.

Initially, we note that three defendants, Johnson, Weigel, and McGehee, have not filed an appellee's brief in this court. Because we have the benefit of an appellee's brief from defendant Gilloghy and based on the principles enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, we shall review the issues raised in this appeal.

Defendants were arrested for driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501). Subsequent to their arrests, each defendant had his driver's license summarily suspended because he either refused to take a breath test or took a breath test which indicated an alcohol concentration of .10 or greater. Each defendant was then given notice of his summary suspension, and defendants filed petitions to rescind their summary suspensions. At defendants' summary suspension hearings, the arresting officers failed to appear when defendants' cases were called. Pursuant to local Rule 34.05 for the Eighteenth Judicial Circuit (1987), defendants argued that their summary suspensions should be rescinded because the arresting officers failed to appear at the suspension hearings. The State objected and asserted that pursuant to section 2-118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b)), it was going to proceed based on each officer's sworn report. In all four cases, the trial court denied the State's objection and rescinded defendants' summary suspensions. From those orders, the State has timely brought this consolidated appeal.

The sole issue raised in this appeal is whether pursuant to local Rule 34.05, the trial court had the authority to rescind the summary suspension of defendants' driver's licenses when the arresting officers failed to appear for the suspension hearing.

Local Rule 34.05 for the Eighteenth Judicial Circuit (1987) states:

"(a) The arraignment dates for DUI cases shall be set by the arresting law enforcement agency. The arraignment date shall be not less than thirty days nor more than forty days from the date of arrest. The police officer setting the arraignment date shall take into consideration the following information: (i) the arresting officer's regular traffic field court date, (ii) any scheduled vacation of the arresting officer, (iii) any scheduled training of the arresting officer, and (iv) any Court holidays.

(b) If any return date would fall on a normal court holiday, the police officer shall set the next working court date for the arraignment.

(c) The arresting officer shall be available in the courtroom on the date set for arraignment. Failure of the officer to appear pursuant to this Rule shall be considered by the Court to be the same as the failure of the complaining witness to appear in any criminal proceeding." (Emphasis added.) 18th Cir. R. 34.05.

On appeal, the State contends that, when the arresting officer fails to appear at a summary suspension hearing, Rule 34.05 does not permit the trial court to rescind a defendant's summary suspension. In support of its contention, the State first argues that the failure of a complaining witness to appear in a criminal proceeding does not warrant the dismissal of a criminal charge (see Ill. Rev. Stat. 1987, ch. 38, par. 114-1); therefore, the language of Rule 34.05 which refers to the failure of the complaining witness to appear should not be construed as warranting the rescission of a defendant's summary suspension. The State further argues that even if Rule 34.05 provides for the rescission of a defendant's summary suspension, such rescission is improper in these cases because defendants failed to subpoena the arresting officers. According to the State, to require the arresting ...


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