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03/21/96 PEOPLE STATE ILLINOIS v. DENNIS SMITH

March 21, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DENNIS SMITH, APPELLANT.



The Honorable Justice Heiple delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case. Justice Nickels, dissenting: Justice Freeman joins in this dissent.

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

Defendant, Dennis Smith, was arrested for driving while under the influence of alcohol (625 ILCS 5/11-501(a) (West 1994)). After defendant refused to take a breath test, defendant was served with notice of the statutory summary suspension of his driving privileges pursuant to section 11-501.1 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501.1 (West 1994)). Defendant filed a petition in the circuit court of Champaign County to rescind the summary suspension. The circuit court granted defendant's petition. A divided panel of the appellate court reversed. 269 Ill. App. 3d 962, 647 N.E.2d 310, 207 Ill. Dec. 348. This court allowed defendant's petition for leave to appeal (145 Ill. 2d R. 315) and we affirm.

BACKGROUND

On April 12, 1994, defendant filed a petition to rescind the statutory summary suspension of his driving privileges and a motion for substitution of judge as of right (735 ILCS 5/2-1001(a)(2) (West 1992)). Defendant also requested that the hearing on the petition be held within 30 days (625 ILCS 5/2-118.1(b) (West 1992)). Judge Ford, to whom the petition and motion were originally assigned, scheduled a hearing for April 27 on the motion for substitution of judge. On April 27, the motion for substitution of judge was summarily granted without argument by the parties or objection by the State. The new judge scheduled the rescission hearing for May 24. Before presenting any evidence at the May 24 hearing, defendant argued that the statutory summary suspension of his driving privileges should be automatically rescinded because the trial court failed to conduct a hearing on the rescission petition within 30 days of the April 12 filing of the petition to rescind. The trial court rejected this argument, attributing the 15-day delay while the substitution of judge motion was pending to the defendant.

At the rescission hearing, the following evidence was elicited. In March of 1994, Officer Andrew Charles of the Urbana police department observed defendant leave a tavern and enter his car. Officer Charles, whose squad car was parked across the street from the tavern, decided to follow defendant to see if he would drive in compliance with the Code. He testified that if he should witness defendant violating the Code, he intended to pull defendant over and also check to see if defendant was driving under the influence of alcohol. Officer Charles followed defendant's vehicle northward on Cunningham Avenue, which is a four-lane street with a fifth lane in the center for turning. He observed defendant driving in the left-hand lane, although defendant claimed he was in the right-hand lane.

As Officer Charles followed defendant, he saw the driver's side wheels of defendant's car cross over the lane line dividing the left lane from the center lane by at least six inches. He stated that defendant failed to signal a lane change and that the car remained over the lane line for approximately 100 to 150 yards. A short time later, he saw defendant cross over the lane line dividing the left lane from the right lane by approximately six inches for 150 to 200 yards. Once again, defendant did not signal. After these two occurrences, Officer Charles determined that defendant had violated the Code for failing to signal a lane change and he stopped defendant. Officer Charles conceded that defendant did not endanger any other vehicles or persons when he deviated across the lane lines and that defendant never completely left the lane in which he was traveling.

Officer Charles did not write defendant a ticket for either failure to signal or improper lane usage. Rather, he gave defendant a verbal warning. While speaking with defendant, Officer Charles noticed that defendant's speech was slurred and that he had difficulty removing items from his wallet. He asked defendant to perform some field sobriety tests, from which Officer Charles concluded that defendant was driving under the influence of alcohol. Defendant was arrested and taken to the police station, where he refused to submit to further testing to determine the alcohol content of his blood. As a result, defendant was served with notice of the statutory summary suspension of his driving privileges (625 ILCS 5/11-501.1 (West 1992)).

After hearing the evidence, the trial court framed the issue as whether Officer Charles had probable cause to stop defendant for a violation of the Code other than for driving under the influence of alcohol. The trial court found Officer Charles to be a credible witness. The trial court noted that a videotape taken on the day in question corroborated Officer Charles' testimony that defendant was driving in the left-hand lane. The trial court nevertheless concluded that Officer Charles did not have probable cause to stop defendant for failure to signal or for the violation of any other traffic law. Accordingly, the trial court granted defendant's petition to rescind the statutory summary suspension of his driving privileges.

A divided panel of the appellate court reversed, concluding that Officer Charles was justified in stopping defendant for improper lane usage in violation of section 11-709(a) of the Code (625 ILCS 5/11-709(a) (West 1992)). 269 Ill. App. 3d at 968. The appellate court construed section 11-709(a) as containing two separate restrictions regarding lane usage: one which requires a vehicle to be driven as nearly as practicable within one lane and a second which prohibits a vehicle from being moved from a lane of traffic until the driver first ascertains that the movement can be made with safety.

Before this court defendant argues that he is entitled to rescission of the statutory summary suspension of his driving privileges because (1) he was not afforded a timely rescission hearing as required by section 2-118.1(b) of the Code and (2) that the initial stop of his vehicle was improper. Defendant has not challenged the constitutionality of Officer Charles' actions in following patrons who exited the tavern, and we do not reach this issue.

ANALYSIS

Initially, we note that a hearing on a petition to rescind the statutory summary suspension of driving privileges is a civil proceeding. People v. Schaefer, 154 Ill. 2d 250, 257, 182 Ill. Dec. 26, 609 N.E.2d 329 (1993). The defendant has the burden of proof and if the defendant establishes a prima facie case for rescission, the burden shifts to the State to come forward with evidence justifying the suspension. People v. Orth, 124 Ill. 2d 326, 341, 125 Ill. Dec. 182, 530 N.E.2d 210 (1988). In weighing the evidence before it, the trial court is charged with passing on the credibility of the witnesses and the weight to be given their testimony. People v. Repp, 165 Ill. App. 3d 90, 95, 116 Ill. Dec. 128, 518 N.E.2d 750 (1988). Generally, the trial court's decision will not be disturbed unless the decision is against the manifest weight of the evidence. People v. Safiran, 229 Ill. App. 3d 639, 641, 171 Ill. Dec. 207, 593 N.E.2d 1027 (1992). However, the decision to grant a petition to rescind may be reversed when the trial court has not applied the correct legal standard to the facts of the case. People v. Rotkvich, 256 Ill. App. 3d 124, 128, 195 Ill. Dec. 424, 628 N.E.2d 888 (1993).

We first address defendant's contention that he was not afforded a timely rescission hearing because the hearing took place 42 days after the petition to rescind was filed, rather than within the statutorily required 30 days. Defendant claims that his due ...


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