Appeal from the Circuit Court of De Kalb County. No. 12-DT-386. Honorable Thomas L. Doherty, Judge, Presiding.
Richard H. Schmack, State's Attorney, of Sycamore (Lawrence M. Bauer and Kathryn E. Kohls, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Thomas A. Lilien and Jessica Wynne Arizo, both of State Appellate Defender's Office, of Elgin, for appellee.
Jorgensen and Birkett,
Justices concurred in the judgment and opinion.
SCHOSTOK, PRESIDING JUSTICE.
[¶1] The State appeals from an order of the circuit court of De Kalb County granting the motion of defendant, Corey E. Olsen, to suppress evidence as a discovery sanction. For the reasons that follow, we reverse and remand.
[¶2] I. BACKGROUND
[¶3] Defendant was arrested on August 12, 2012, and charged with two counts of driving under the influence (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2012)).
[¶4] On September 5, 2013, defendant filed a motion for sanctions, based on the arresting officer's alleged failure to comply with section 30(c) of the State Police Act (Act) (20 ILCS 2610/30(c) (West 2012)), which provides that " in-car video camera recording equipment *** shall record activities outside a patrol vehicle whenever (i) an officer assigned a patrol vehicle is conducting an enforcement stop; *** or (iii) an officer reasonably believes recording may assist with prosecution, enhance safety, or for any other lawful purpose." According to defendant, although the officer's vehicle was equipped with fully functioning video and audio recording equipment, the officer conducted field sobriety tests in a manner that would not be recorded by the video camera. Defendant argued that the officer's failure to record the field sobriety tests " amounts to spoliation of evidence in that he failed to properly preserve evidence" as required by statute. Defendant asked the trial court to suppress all observations made by the officer during the administration of field sobriety tests.
[¶5] A hearing took place on October 21, 2013. At the hearing, State Police Officer Eric Longenecker testified that, on August 12, 2012, he stopped defendant's car, on a two-lane highway, for speeding and improper lane usage. Longenecker positioned his patrol car behind defendant's car on the " very small gravel shoulder." Longenecker proceeded to perform field sobriety tests on defendant. Longenecker performed the tests in front of defendant's car, rather than in front of his patrol car, for safety reasons, because if someone were to strike his car from behind while they were between the two cars, they could be pinned between the cars. Longenecker testified that his patrol car was equipped with working audio and video recording equipment. He explained that the audio and video equipment was recording during the stop, but " there was no clear line of sight" to where the field sobriety tests were performed. He stated: " I record what I can. I prefer to not get hit as opposed to getting it [ sic ]."
[¶6] The trial court granted defendant's motion for sanctions, suppressing all observations made by Longenecker during the administration of field sobriety tests, because " defendant was denied the ability to use that video." The court stated: " I know Peace Road and Fairview. You could have pulled around on Fairview where the traffic is minimal."
[¶7] The State moved for reconsideration of the ruling, which the trial court denied, stating: " My basic concern is did the defendant get a fair trial. This could have been solved by a real simple thing. The police officer took a video of the defendant doing a field test taken [ sic ]. That ...