Appeal from the Circuit Court of Du Page County. No. 97-DT-5417 Honorable John T. Elsner, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger
JUSTICE GEIGER delivered the opinion of the court:
On April 17, 1998, the circuit court of Du Page County rescinded the statutory summary suspension of the driver's license of defendant, Eric Schambow. The trial court entered the rescission order as a discovery sanction after the State failed to provide the defendant with a subpoenaed audiotape of radio communications between the arresting officer and police headquarters. The State appeals pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).
The following facts are relevant to the instant appeal. On December 12, 1997, Trooper S. LeGrand of the Illinois State Police received a police dispatch at 12 a.m. regarding a possible intoxicated driver traveling southbound on Interstate 55 near Illinois Route 83. Trooper LeGrand saw the vehicle described in the dispatch and observed that it was speeding and swerving. Trooper LeGrand subsequently stopped the vehicle and administered several roadside sobriety tests to the defendant. After the defendant failed these tests, Trooper LeGrand placed him under arrest for driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 1996)). Trooper LeGrand advised the defendant that he would be required to appear in court for the DUI on January 14, 1998.
As a result of the DUI arrest, the office of the Secretary of State informed the defendant that his driving privileges would be suspended for three months pursuant to section 11--501.1 of the Illinois Vehicle Code (625 ILCS 5/11--501.1 (West 1996)). The suspension was to become effective on January 27, 1998.
On December 23, 1997, the defendant served a subpoena duces tecum on the Illinois State Police requesting any and all radio communications between Illinois State Police District Two (District Two) and Trooper LeGrand for the date and time of the defendant's arrest. The subpoena was returnable on the defendant's court date of January 14, 1998. On that date, the tape was not produced in court. The trial court therefore ordered the State to provide the audiotape requested in the subpoena.
On January 16, 1998, defense counsel was forwarded a letter from Karen Milligan, who was the telecommunications supervisor for District Two.
Milligan indicated that she would be unable to supply the subpoenaed audiotape, explaining as follows:
"I regret that I am unable to supply this tape. I am relatively new to District 2 communications, and was not aware of the fact that before the tapes on the tape deck are changed, they are first erased, instead of being taped over. I came in on Sunday, 1-11-98 to make this tape for your office and found a blank tape. It was then I was advised of the *** erasing [of] the tapes before placing them back on the deck."
Apparently, thirty days after the date of original taping, the recordings of District Two's radio communications are erased. January 11, 1998, was the thirtieth day following the defendant's arrest. Therefore, when Milligan attempted to copy the requested tape on January 11, 1998, it had already been erased and recycled earlier in the day.
On March 30, 1998, the defendant filed a motion for sanctions seeking the rescission of his statutory summary suspension pursuant to Supreme Court Rule 415(g)(i) (134 Ill. 2d R. 415(g)(i)). The defendant alleged that he was entitled to the rescission as a result of the State's failure to produce the subpoenaed audiotape. Although the defendant acknowledged that the destruction of the tape was inadvertent, he argued that he was nonetheless without the benefit of the information contained on the tape during the preparation of his defense.
On April 17, 1998, following argument, the trial court entered an order rescinding the defendant's summary suspension. The trial court found that such a sanction was proper in light of the State's failure to produce the subpoenaed audiotape. In so ruling, the trial court specifically relied upon a Rule 23 order filed by the Appellate Court, First District, in the case of People v. Karl, No. 1--96--3485 (1998) (unpublished order under Supreme Court Rule 23). In Karl, the appellate court held that the rescission of a summary suspension was a proper sanction for the State's failure to provide subpoenaed audiotapes of police radio communications. In Karl, as in the instant case, the audiotape had been automatically erased before duplication. Following the denial of its motion to reconsider, the State filed a timely notice of appeal.
At the outset, we note that the defendant has failed to file a brief responding to the issues raised by the State on appeal. However, as the State's brief and the record are sufficient to resolve the issue appealed, we will nonetheless consider the merits of the appeal. In re Marriage of Cody, 264 Ill. App. 3d 160, 161 (1994).
In the proceedings below, both the parties and the trial court expended significant effort considering the applicability of Karl. Indeed, as noted above, the trial court found that the Disposition in Karl controlled the outcome in the instant case. However, as a Rule 23 order, it was improper for the trial court to rely on Karl and to permit the parties to cite that case as authority. Supreme Court Rule 23 plainly provides that an unpublished order of an appellate court "is not precedential and may not be cited by any party." 166 Ill. 2d R. 23(e). Rule 23 orders have no precedential value and may be invoked only to support contentions such as double jeopardy, res judicata, collateral estoppel, and law of the case. ...