from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois Circuit No. 15-DT-291 Honorable Raymond A.
Nash, Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Justice Carter concurred in the judgment and
opinion. Justice Schmidt specially concurred, with opinion.
1 The defendant, Damien Acevedo, appealed the denial of his
petition to rescind a statutory summary suspension after
being charged with driving under the influence.
3 On March 5, 2015, the defendant was arrested for driving
under the influence. On March 16, 2015, the defendant filed a
petition to rescind the statutory summary suspension on the
basis that the arresting officer did not have reasonable
grounds to believe that the defendant was driving under the
influence of alcohol. On March 20, 2015, and again on March 31,
the trial court ordered the State to turn over the squad car
video to the defendant.
4 Having not received the squad car video, on June 1, 2015,
the defendant filed a motion for sanctions due to a discovery
violation. At the hearing on the motion, the arresting
officer, Carrie Arvidson, testified that the video did exist
at one time. After the defendant's arrest, she made a
copy of the DVD from the recording system in her squad car
and turned it in with her report. However, it was later found
that the DVD was cracked and would not play. At that time,
Arvidson attempted to recover the video of the traffic stop
from her squad car system, but it had been recorded over. The
trial court found that a discovery violation had occurred
and, as a sanction, imputed that the defendant had sustained
his burden of proof and shifted the burden to the State to
show cause why the suspension should be sustained. The trial
court declined to bar the testimony of Arvidson as a
5 Arvidson testified that she was an Illinois state patrol
trooper who responded to an automobile crash on the night of
March 5, 2015. She approached the defendant's vehicle and
noticed a strong odor of alcoholic beverage. She also noted
that the defendant had difficulty removing his license from
his wallet. Arvidson testified that the defendant told her he
had been at a union meeting and that he had a few beers.
Arvidson escorted the defendant out of his vehicle, and she
noticed that he was stumbling and swaying. Arvidson performed
field sobriety tests, which the defendant did not perform
successfully. Arvidson then offered the defendant a portable
breath test (PBT), which he agreed to. In establishing the
foundation for the PBT, Arvidson testified that the machine
was turned in to be calibrated by another officer. The trial
court found that there was a proper foundation for the PBT
and allowed Arvidson to testify that the result of the PBT
was 0.183. The defendant testified that he
was not under the influence of alcohol, although he had had 4
to 5 beers at a union meeting, and that he had suffered head
trauma in the accident.
6 The trial court denied the defendant's petition to
rescind. The trial court found that defense counsel's
arguments regarding the foundation for the PBT went to the
weight of the evidence, and it considered the result, along
with the other evidence of intoxication, in concluding that
there was probable cause to arrest the defendant. The
defendant's motion to reconsider was denied.
8 The defendant argues that the trial court erred by not
barring the testimony of the arresting officer as sanctions
for a discovery violation. We review a trial court's
ruling regarding sanctions for an abuse of discretion.
People v. Schambow, 305 Ill.App.3d 763, 766 (1999).
9 There is no dispute that there was a discovery violation:
the State was ordered to turn over a DVD of the
defendant's traffic stop, but it did not do so because
the DVD was accidently destroyed after the stop. The
defendant argues that, as a sanction, the arresting officer
should have been barred from testifying to the events that
would have been seen on the DVD. The State argues that the
trial court properly exercised its discretion in crafting a
sanction appropriate to the situation.
10 A motorist whose driving privileges have been summarily
suspended may request a judicial hearing to seek rescission
of the suspension. 625 ILCS 5/2-118.1 (West 2012). Relevant
to this case, one ground upon which the summary suspension
should be rescinded is that the arresting officer did not
have reasonable grounds to believe that the motorist was
under the influence of alcohol, drugs, or both. 625 ILCS
5/2-118.1(b)(2) (West 2012); People v. Ehley, 381
Ill.App.3d 937, 942 (2008). A hearing on a petition to
rescind a statutory summary suspension is a civil proceeding
in which the motorist bears the burden of proof of providing
a prima facie case for rescission. People v.
Gutierrez, 2015 IL App (3d) 140194, ¶ 14. If the
motorist establishes a prima facie case, the burden
shifts to the State to come forward with evidence justifying
the suspension. People v. Smith, 172 Ill.2d 289, 295
11 The defendant cites to People v. Kladis, 2011 IL
110920, as support for his argument that the officer's
testimony regarding the time captured on the unavailable
video should be barred. In Kladis, the trial court
barred the arresting officer's testimony from five
seconds before the stop until the defendant was taken away
for the arrest, the timeframe covered by the squad car video
that was not preserved. Id. ¶ 11. In upholding
that sanction, the supreme court found that there was no
indication that the trial court abused its discretion.
Id. ¶ 46. The record indicated that the trial
court chose its sanctions from a spectrum of available
options and narrowly tailored its sanction. Id.
¶ 45. Despite the defendant's argument that
Kladis stands for the proposition that testimony
must be barred whenever there is a discovery violation that
results in missing evidence, we conclude that Kladis