Appeal from the Circuit Court of Du Page County. No. 09-DT-4556 Honorable Robert G. Kleeman, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.
On January 8, 2010, after a hearing, the trial court granted the petition of defendant, Carol A. Aronson, to rescind the statutory summary suspension of her driving privileges. The State appeals, arguing that, in light of the trial court's finding that the arresting officer's testimony was credible, the court erred in finding that the State's inability to produce the video of defendant's performance on field sobriety tests required the suspension revocation. For the following reasons, we affirm.
On November 15, 2009, defendant was arrested for three alleged violations of the Illinois Vehicle Code (Code): (1) DUI (625 ILCS 5/11-501(a)(2) (West 2008)); (2) speeding (625 ILCS 5/11-601(b) (West 2008)); and (3) improper lane usage (625 ILCS 5/11-709(a) (West 2008)). On December 11, 2009, defendant petitioned pursuant to section 2-118.1 of the Code (625 ILCS 5/2-118.1 (West 2008)) to rescind the statutory summary suspension of her driving privileges, challenging, among other things, whether the arresting officer had reasonable grounds to believe that she was driving under the influence of alcohol. A hearing on the petition was scheduled for January 8, 2010.
Prior to the hearing on the petition, defendant moved for sanctions against the State. According to the motion, on December 30, 2009, defendant subpoenaed the Oak Brook police department, requesting any videos relating to her case. On January 8, 2010, the police department's court-liaison officer informed defendant that the video of her stop and performance on the field sobriety tests was "not viewable." Defendant argued in her motion for sanctions that the State's failure to produce the video was tantamount to the loss or destruction of evidence and, therefore, the trial court had the discretion to sanction the State's unreasonable noncompliance with discovery. Defendant requested that, in light of the State's failure to properly preserve and produce the evidence, the court should, as a sanction, grant defendant's petition to rescind the statutory summary suspension.
On January 8, 2010, the trial court held a hearing on the motion for sanctions. There, the assistant State's Attorney explained to the court that, according to his conversation with "the officer," he understood:
"[T]here is a camera in the officer's vehicle. When he returned to the station, there was some sort of download process with the camera. There was a person at the police department, I do not have that person's name and I don't have that person in court with me today. The officer tells me that he is in charge of downloading the videos and things of that nature. This person told Officer Foltyniewicz that the video was unavailable, that it did not work. That being the case, there was a camera, I understand, but there is not an actual video of the stop." The State represented that Officer Foltyniewicz was present in court and had an independent recollection of the events relating to the stop and arrest of defendant. Therefore, the State argued, the fact that there was no recording available did not warrant a sanction of rescission. Instead, the State asserted, the absence of a video should be considered as relevant to the weight of the evidence.
Before ruling, the court sought clarification that, according to the State, the field sobriety test video was "in some fashion technically" unavailable because it did not properly download. The State agreed, and defense counsel represented that he, too, was present when Officer Foltyniewicz explained that "he didn't know why there was no video. He has no knowledge."
The court denied the motion for sanctions, noting that there was no evidence presented that there was an intentional or willful destruction of any evidence. However, the court noted:
"[I]t is something that I think I can and, frankly, I will consider [at the rescission hearing]. There is a video. I have no explanation as to why that video doesn't exist. Again, I am not making any finding that it was willful or intentional, but the impact of that is going to be something that I can and I will consider during the course of the hearing. *** I will consider that failure to produce that video. I think it was something that was in the possession ...