                                No. 2—10—0143
                           Opinion filed March 16, 2011
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 09—DT—4556
                                       )
CAROL A. ARONSON,                      ) Honorable
                                       ) Robert G. Kleeman,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
       Justices McLaren and Burke concurred in the judgment and opinion.

                                             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.

                                         I. BACKGROUND

       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
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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.

                                       A. Motion for Sanctions

        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



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No. 2—10—0143


       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 of law

       enforcement. It doesn’t exist and there is no explanation for that, and that’s a factor I can and

       will consider.”

                                        B. Rescission Hearing



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       The rescission hearing commenced immediately after the court denied defendant’s motion for

sanctions.   Defendant called as her first witness Officer Foltyniewicz, who testified to the

circumstances surrounding his stop of defendant. In sum, Foltyniewicz testified that his attention was

drawn to defendant’s vehicle when defendant’s vehicle slightly straddled a lane while at a stop light.

He subsequently followed defendant through a construction zone where another lane had been added

and orange “horses” blocked certain areas, and he witnessed her vehicle change lanes without

signaling. At that time, Foltyniewicz activated his vehicle’s emergency lights and defendant pulled

over in an appropriate manner. After approaching the vehicle, Foltyniewicz smelled alcohol;

defendant told him that her husband (in the passenger seat) had consumed alcohol that evening.

Foltyniewicz did not notice anything unusual about defendant’s speech, nor did he observe anything

else about her that raised suspicion. However, he asked her to step out of the vehicle to determine

whether she, as opposed to her husband, had consumed alcohol. Defendant exited the vehicle in an

appropriate manner, with no apparent balance problems; she did not use the vehicle for support; she

walked to the back of the vehicle without support; and she did not wobble, sway, or fall over.

Foltyniewicz detected the odor of alcohol coming from defendant’s breath, and he asked defendant

to perform four field sobriety tests. Ultimately, he concluded that she failed three of the tests.

Specifically, on the walk-and-turn test, defendant did not stumble or fall, but Foltyniewicz observed

that defendant did not touch toe-to-heel, raised her arms more than six inches from her body, and did

not follow instructions on the turn. Further, on the one-leg-stand test, defendant put her foot down

before Foltyniewicz told her to stop. Finally, on the breath test, defendant formed a tight seal with

her lips around the tube, but did not blow as instructed and, therefore, no results were obtained.

According to Foltyniewicz, defendant admitted that she had earlier consumed one glass of wine.



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No. 2—10—0143


Foltyniewicz arrested defendant. In his testimony, Foltyniewicz made no mention of the alleged video

recording.

        Thereafter, defendant, a home health care nurse, testified to her version of the events,

including her belief that she did not fail the sobriety tests. Specifically, defendant testified that she

walked the walk-and-turn test as instructed, including touching heel-to-toe, and that she had her

hands at her sides during the one-leg-stand test, but, because she was “very nervous,” lights were

shining, and “a lot was going on,” she did not know whether she held her arms more than six inches

from her body. Defendant denied telling Foltyniewicz that she consumed any alcohol that night.

        In closing, defense counsel argued that the video would have been dispositive of the case

because, while Foltyniewicz testified that defendant failed the sobriety tests, defendant credibly

testified that she passed the tests. In response, the State argued that Foltyniewicz testified more

credibly to the events than defendant and that defendant offered no explanation for the problems with

her driving that initially brought her to Foltyniewicz’s attention.

        The court granted defendant’s petition to rescind the suspension. The court noted that

Foltyniewicz was “very credible” in its mind. However:

                “The concern that I have, the issue in my mind, is the field sobriety tests. Again, I

        think the officer testified credibly as to the defendant’s performance ***. I found the officer

        to be more credible [than defendant]. The question I have, and this is troubling to me, is that

        there is a tape. It was inadvertently not recorded, destroyed, I don’t know if you want to call

        it that, which is what the cases say. But there was a tape recording that we don’t have. It

        wasn’t intentional based upon what’s been represented to me, but through no fault of the

        defense, they were diligent in trying to get a tape. I do not think that it automatically



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No. 2—10—0143


       warrants reversal. If it was intentional, perhaps it would be different. But that’s where I

       come down.

                 If it was a case where there was no tape, this call would be easy for me. I think the

       officer testified more credibly, but the absence of the tape raises a concern in my mind.

       Again, I don’t find that it was intentional, it’s inadvertent, but it’s in control of the State.

       There’s principles of civil law that indicate that if there’s evidence that was in the possession

       of one party and it’s destroyed, whether it’s inadvertent or not, there is an inference to be

       drawn that it was detrimental to that party. Again, I don’t know that, but that’s the concern

       that I have is that there was a tape that the defense can’t have, through no fault of theirs.

                 It’s for that reason, and I am reluctant to do it, I don’t know how to express that any

       better, reluctantly. The officer testified credibly. I think he behaved like a professional, but

       because of the absence of the tape, that it was inadvertently not recorded or destroyed, I am

       going to rescind the summary suspension.” (Emphases added.)

       After orally announcing its ruling, the trial court signed a preprinted summary suspension

order form that was filled out by defense counsel. The order reflected that the court had ruled in

defendant’s favor and checked, as its reason for the decision, the option: “Officer Failed to Answer

Defendant’s Subpoena (Code 4250).”1 Similarly, the circuit court clerk completed and signed a form




       1
           The six other options the order form provides as reasons for rescinding the summary

suspension include: (1) “No D.U.I. Arrest (Code 4230)”; (2) “No Warning Given (Code 4215)”; (3)

“No Reasonable Grounds (Code 4220)”; (4) “Did Not Refuse Test (Code 4240)”; (5) “Not a B.A.C.

of 0.08 or more (Code 4245)”; and (6) “Other (explain) _______ (Code 4255).”

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No. 2—10—0143


notice to the Secretary of State, indicating that, after a hearing, the court had ruled to rescind

defendant’s summary suspension because “OFFC FAILED TO ANSWER.” The State appeals.

                                            II. ANALYSIS

        Statutory summary suspension hearings are civil. People v. O’Connor, 313 Ill. App. 3d 134,

136 (2000). A trial court’s order to grant or deny a petition to rescind a statutory summary

suspension is a final and appealable order. Id. In a statutory summary suspension hearing, the

defendant bears the burden of establishing by a preponderance of the evidence a prima facie case for

rescission.2 People v. Wear, 229 Ill. 2d 545, 560 (2008); People v. Hacker, 388 Ill. App. 3d 346, 349

(2009). The burden then shifts to the State to produce evidence justifying the suspension. Wear, 229

Ill. 2d at 560. In reviewing a trial court’s ruling on a petition to rescind a summary suspension, we

defer to the trial court’s findings of fact, reversing them only if they are against the manifest weight

of the evidence, but review de novo the court’s ultimate determination of whether the petition to

rescind should be granted. Id. at 561-62; see also People v. Tomczak, 395 Ill. App. 3d 877, 880

(2009); Hacker, 388 Ill. App. 3d at 350.




        2
            The defendant may challenge the suspension on four bases: (1) whether the defendant was

placed under arrest for an offense under section 11—501 of the Code (625 ILCS 5/11—501 (West

2008)); (2) whether the officer had reasonable grounds to believe that the defendant was driving or

in actual physical control of a motor vehicle while under the influence of alcohol, another drug, or

both; (3) whether the defendant received the statutory motorist’s warning and refused to complete

the test or tests; and (4) whether the test or tests disclosed an alcohol concentration of 0.08 or more.

625 ILCS 5/2—118.1(b)(1) through (b)(4) (West 2008).

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No. 2—10—0143


        The State argues that the trial court’s ruling was improper because, despite its denial of

defendant’s motion for sanctions, the court in fact sanctioned the State and granted the petition for

rescission solely based on a video that was never created. The State argues that the court’s ruling

creates a new, “technical,” nonexistent statutory factor for rescinding summary suspensions that is

contrary to this state’s public policy to keep public highways safe.

        First, we are compelled to address the State’s assertion that the court apparently did not

understand that, as opposed to a video that existed and was lost or destroyed, “the video in question

never came into existence.” According to the State, the technical problem preventing a successful

download equates to a video that never came into existence. However, the fact that a video could

not be produced does not mean that a recording was not made. The court’s understanding that the

video camera in Foltyniewicz’s car recorded the stop, but that the recording could not be produced

because of a technical problem, is supported by the record. Specifically, at the hearing on the motion

for sanctions, the State represented that there was a video camera in Foltyniewicz’s car, that there

was a downloading issue with the camera, and, consequently, that the video was unavailable. This

assertion presupposes that there was a recording, because, if no recording was made, efforts to

download would be unnecessary. Further, the State agreed with the court’s characterization that the

video was technically unavailable, and it did not assert to the court that, in fact, no recording was ever

made. As such, we find unavailing the State’s argument that the court effectively ruled that rescission

is warranted whenever there is no tape recording of a stop. The court made no such ruling. Rather,

noting that, if “there was no tape, this call would be easy for me,” and that, “in the absence of the

tape” (not a tape), it would rescind the suspension, the court simply concluded that there was a

recording taken, but the State was unable to produce the recording. (Emphases added.)



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No. 2—10—0143


        Next, we disagree with the State’s assertion that the trial court rescinded the suspension as

a sanction. The record reflects that the court denied defendant’s motion for rescission as a sanction

for the video’s absence. In doing so, it made clear that, where there was no suggestion that the State

intentionally destroyed the video, rescission as a sanction was inappropriate. Further, the court

clarified that it agreed with the State’s argument on the motion for sanctions that, while it was

inappropriate under these circumstances to grant rescission solely based on the absence of the video,

it could consider the video’s absence when weighing the evidence. Nothing in the court’s subsequent

ruling on the petition to rescind reflects to us that the court departed from its position regarding

sanctions.3



        3
            In light of our conclusion that the court did not rescind the suspension as a sanction, we

conclude that, despite its selection on the order, the court inherently granted the rescission because

the video’s contents would have been relevant to the issue of reasonable grounds. While the court

signed the order form (prepared by defense counsel) that marked the officer’s “failure to answer” as

the basis for its decision, we do not believe that the selection appropriately fits the court’s oral

findings. For example, an officer’s “failure to answer” likely pertains to cases where an officer fails

to answer a subpoena to appear at the hearing and, even then, rescission is not automatic. See 625

ILCS 5/2—118.1 (West 2008) (“[T]he hearing may be conducted upon a review of the law

enforcement officer’s own official reports; provided however, that the person may subpoena the

officer. Failure of the officer to answer the subpoena shall be considered grounds for a continuance

if in the court’s discretion the continuance is appropriate.” (Emphasis added.)). Under the facts here,

reading the court’s selection of an officer’s “failure to answer” as akin to a statement that it based its

decision to rescind solely on the officer’s failure to produce the video would suggest that rescission

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No. 2—10—0143


        As such, we disagree with the State that the court ultimately granted rescission based solely

on the missing video. Indeed, the court’s ruling reflects that it considered and weighed both

defendant’s and Foltyniewicz’s testimony. The court determined that Foltyniewicz testified credibly.

However, the court also discussed the general proposition that, when evidence in one party’s control

is missing or destroyed, an inference may be drawn that the evidence was detrimental to that party.

Thus, in its process of weighing the in-court testimony, the court factored into its deliberations that

the video would have spoken to the credibility of the testimony and presumptively would have

weighed against the State. As such, although the court found Foltyniewicz more credible than

defendant based solely on their testimony, the court implicitly determined that defendant’s testimony

(which, incidentally, it did not state was incredible), when bolstered by the presumption that the video

would have been detrimental to the State, outweighed Foltyniewicz’s testimony such that rescission

was warranted. We also note that, in finding Foltyniewicz’s testimony credible, the court inherently

accepted his testimony that weighed in defendant’s favor, i.e., that she did not have slurred speech,

had no apparent balance problems, did not use the vehicle for support, etcetera. We cannot conclude

that the court’s findings in this regard are against the manifest weight of the evidence. Giving

deference to the court’s findings that Foltyniewicz’s testimony was outweighed by the evidence in



was granted as sanction. Clearly, however, the court did not intend to impose rescission as a sanction

here. Rather, as further explained below, we read the court’s ruling as finding that the video would

have been relevant to witness credibility on “reasonable grounds.” Thus, although the failure to

answer the subpoena for the video was part of the court’s basis for rescission, the “reasonable

grounds” option on the order form would have been the more appropriate selection, and we rely on

the court’s oral findings rather than the checked box.

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No. 2—10—0143


defendant’s favor and, accordingly, that there were no reasonable grounds to believe that defendant

was driving under the influence of alcohol, we agree that rescission was warranted.

        The cases relied upon by the State do not warrant a different conclusion.4 For example, in

People v. Camp, 352 Ill. App. 3d 257, 258 (2004), the defendant moved to dismiss DUI charges

against him, arguing that he could not receive a fair trial because the State lost a videotape of his field

sobriety tests. The trial court granted the request, and this court reversed on the basis that dismissal

of the charges was an excessive sanction for the inadvertent loss of the tape. Id. Nevertheless, while

we found dismissal of the charges to be a sanction disproportionate to the discovery violation, we

stated that it would be appropriate for the factfinder to consider “less drastic” options, such as that

“the absence of the videotape requires an inference that the tape’s contents are favorable to

defendant.” Id. at 262. Here, the trial court rejected defendant’s request for rescission as a sanction

(similar to the defendant’s request for outright dismissal of the charges in Camp) and, instead,

proceeded to a hearing. At the conclusion of the hearing, and in accord with Camp, the trial court

applied to its deliberations the “less drastic” option of inferring that the absent video contained

contents favorable to defendant.

        Similarly, People v. Schambow, 305 Ill. App. 3d 763 (1999), is in several respects

distinguishable from the instant case. In Schambow, the defendant objected to the State’s inadvertent

destruction of audiotapes that contained police radio communications from the time of the

defendant’s DUI arrest. The trial court rescinded the defendant’s summary suspension as a discovery

sanction. Rejecting the defendant’s due process argument, the appellate court reversed the rescission,



        4
            The State moved to cite foreign authority. We granted the State’s motion; however, we do

not find it necessary to rely on the foreign authority.

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No. 2—10—0143


finding, among other things, that the audiotapes would have held little exculpatory value on the

question of whether the officer had reasonable grounds to believe that the defendant was operating

a vehicle while under the influence of alcohol, whether the defendant refused to take a Breathalyzer

test, or whether his BAC exceeded legal limits. Id. at 768. Here, in contrast, the court did not

rescind the suspension as a sanction or prior to hearing, and we note that, unlike the audiotapes in

Schambow, a video recording of defendant’s performance on the field sobriety tests would be

extremely relevant and potentially exculpatory on the question of reasonable grounds.

        People v. Leannah, 72 Ill. App. 3d 504 (1979), also fails to impact our decision. In Leannah,

a videotape of the defendant at the police station on the night of his arrest was accidentally destroyed.

The trial court, before trial, dismissed the charges against the defendant as a sanction for the State’s

discovery violation. The appellate court reversed, rejecting the defendant’s due process claims and

finding the sanction too harsh under the circumstances. Id. at 508. Again, here, the trial court did

not rescind the suspension as a sanction prior to hearing. Instead, the court held an evidentiary

hearing and weighed the evidence. Accordingly, we disagree with the State that the foregoing cases

hold that a missing video cannot justify rescission. Rather, the cases do not address the factual

situation here, where the court did not dismiss charges or rescind because a video was missing, but,

rather, applied a presumption to its weighing of the evidence.

        Finally, we note that we also disagree with the State’s assertion that the court’s ruling here

granted rescission on a “technicality.” For example, this is not a situation where rescission was

granted because an officer failed to forward to the clerk of the court a sworn report—a curable defect

having no real prejudice to the defendant. See, e.g., People v. Dominguez, 367 Ill. App. 3d 171

(2006). Instead, the court considered that a recording was made on the very issue disputed by the



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No. 2—10—0143


parties, i.e., whether reasonable grounds existed for Foltyniewicz to believe that defendant was

driving while intoxicated. That video, which might have held exculpatory value for defendant, was

unavailable. The court did not rescind the suspension as a sanction to the State, but it did inherently

find that the information presumed to be on the video, coupled with defendant’s testimony,

outweighed the evidence in the State’s favor.

       In conclusion, we reject the State’s argument on appeal that the trial court erred in rescinding

defendant’s summary suspension.

                                        III. CONCLUSION

       For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

       Affirmed.




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