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04/26/96 PEOPLE STATE ILLINOIS v. TONY D. BRUMMETT

April 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TONY D. BRUMMETT, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. Nos. 95TR3638, 95TR3639, 95TR3640, 95TR3641. Honorable James A. Hendrian, Judge Presiding.

Released for Publication April 26, 1996.

Honorable Robert W. Cook, P.j., Honorable Rita B. Garman, J., Honorable James A. Knecht, J., Concurring. Presiding Justice Cook delivered the opinion of the court: Garman and Knecht, JJ., concur.

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

Defendant Tony Brummett appeals the trial court's refusal to rescind the summary suspension of his driver's license, arguing (1) the trial court erred in quashing portions of his subpoenas duces tecum, (2) he was not given a hearing on the summary suspension of his driver's license within 30 days of his request (625 ILCS 5/2-118.1(b) (West 1992)), (3) he established a prima facie case that he was not in "actual physical control" of a motor vehicle on February 25, 1995 (625 ILCS 5/2-118.1(b)(2) (West 1992)), (4) he established a prima facie case that he did not operate a motor vehicle on the "public highways" of Illinois on February 25, 1995 (625 ILCS 5/2-118.1(b)(2) (West 1992)), and (5) he established, and the State failed to rebut, a prima facie case for rescission based upon a malfunctioning breathalyzer machine (625 ILCS 5/2-118.1(b)(4) (West 1992)). We affirm.

Defendant was arrested for driving under the influence (DUI) (625 ILCS 5/11-501 (West 1992)) on February 25, 1995. On February 27, 1995, defendant filed a motion for substitution of judges as a matter of right. 725 ILCS 5/114-5 (West 1994). On the same day, he filed a request for hearing on a petition to rescind the summary suspension of his license. 625 ILCS 5/2-118.1(b) (West 1992). The petition to rescind, however, was not filed until March 3, 1995. Defendant caused a subpoena duces tecum to be issued to various employees of the Decatur police department and State's Attorney's office. On March 17, defense counsel filed a second motion for substitution of judges. On March 24 that motion was withdrawn.

On April 3, the cause was called for hearing on defendant's petition to rescind and on the State's objections to the subpoenas duces tecum. Defendant was given a list of witnesses and copies of the breathalyzer results. All other portions of the subpoenas duces tecum were quashed and the hearing was recessed until April 14, 1995. On April 14, the trial court denied defendant's petition to rescind. This appeal followed.

On appeal, defendant argues the trial court erred in its ruling on his subpoenas duces tecum. While defendant claims the subpoenas duces tecum were "summarily quashed," that was not the trial court's order. The trial court held defendant had a right to a list of the State's witnesses, any confessions of defendant, any evidence negating defendant's guilt, and a copy of the breath analysis results. Defendant was provided with a list of witnesses and a copy of the breath analysis results.

Subpoenas duces tecum are issued by the clerk of the court upon request but may be quashed or modified by the trial court "for good cause shown." 735 ILCS 5/2-1101 (West 1994). The State, at the rescission hearing and on appeal, argues the scope of the subpoena duces tecum is governed by the supreme court's decision in People v. Schmidt, 56 Ill. 2d 572, 309 N.E.2d 557 (1974). In Schmidt, the supreme court held discovery available to a defendant in misdemeanor cases is limited to a list of the State's witnesses, any confessions of the defendant, and any evidence negating defendant's guilt. In misdemeanor DUI cases, a defendant also has a right to the results of the breathalyzer test. Schmidt, 56 Ill. 2d at 575, 309 N.E.2d at 558. In the case at bar, the trial court apparently relied on Schmidt in ruling on defendant's subpoenas duces tecum.

It could be argued that Schmidt is not controlling in the present case. First, Schmidt concerned discovery in misdemeanor cases. A rescission hearing is a civil proceeding. A rescission hearing is not penal in nature; it is an administrative method designed to remove dangerous drivers from the Illinois highways. People v. Teller, 207 Ill. App. 3d 346, 349, 565 N.E.2d 1046, 1048, 152 Ill. Dec. 364 (1991). Second, Schmidt dealt with discovery, not with the conditions under which a subpoena duces tecum should be issued.

Nevertheless, the second district has held the discovery limitations of Schmidt apply with equal force to rescission hearings and subpoenas duces tecum. Teller, 207 Ill. App. 3d at 349, 565 N.E.2d at 1048. The defendant in Teller had sought, via the subpoena duces tecum, a variety of information, including an arrest report, a case report, all police department directives relating to chemical DUI tests, all maintenance and repair logs of one breathalyzer, and all information related to repair of that machine. Teller, 207 Ill. App. 3d at 350-51, 565 N.E.2d at 1049. The Teller court held Schmidt did not control in this situation, but went on to hold a defendant in a rescission hearing should be provided with the same discovery allowed under Schmidt. Teller held it was within the discretion of the trial court to grant requests for discovery in excess of that allowed under Schmidt. Teller, 207 Ill. App. 3d at 349, 565 N.E.2d at 1048. The court recognized that broader discovery was allowed in other civil cases but based its decision on the fact that "the legislature intended the summary suspension and rescission hearing process to be swift and of limited scope." Teller, 207 Ill. App. 3d at 351, 565 N.E.2d at 1049.

We agree with the Teller approach. While Teller was limited to the use of the subpoena duces tecum as a discovery device, there is little to distinguish this use from compelling the production of documents at trial for admission into evidence. See Teller, 207 Ill. App. 3d at 350, 565 N.E.2d at 1048-49 (discussing the difference between the two types of subpoenas). The amount of discovery available to defendants in civil proceedings has been limited in the past. See People v. Finley, 21 Ill. App. 3d 335, 342, 315 N.E.2d 229, 234 (1974) (limiting discovery in implied consent hearings to that allowed under Schmidt); City of Danville v. Hartshorn, 53 Ill. 2d 399, 404, 292 N.E.2d 382, 385 (1973) (limiting discovery in a civil proceeding on a municipal ordinance violation); People ex rel. Hanrahan v. Felt, 48 Ill. 2d 171, 175, 269 N.E.2d 1, 4 (1971) (limiting the extent of civil discovery available in a juvenile delinquency proceeding).

Thus, defendant in the instant case properly received a list of State's witnesses and a copy of his breathalyzer results, the other Schmidt discovery materials not being applicable. Any additional discovery to be allowed rested within the discretion of the trial court, and the court's decision to quash the other portions of the subpoenas duces tecum cannot be said to have been an abuse of discretion.

Defendant next claims he was denied his right to a hearing within 30 days of his request for a rescission hearing. Specifically, defendant argues such a hearing must have been commenced by April 3, 1995, and since only the objections to defendant's subpoenas duces tecum were discussed on that date, he was not given a hearing within the statutorily prescribed term. Defendant denies he caused any delay in this case. Both parties agree the 30-day term ...


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