{ "id": 2560139, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD MOONY, Defendant-Appellee", "name_abbreviation": "People v. Moony", "decision_date": "1990-11-27", "docket_number": "No. 2\u201489\u20141328", "first_page": "422", "last_page": "428", "citations": [ { "type": "official", "cite": "206 Ill. App. 3d 422" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "124 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218359 ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0326-01" ] }, { "cite": "98 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499474 ], "pin_cites": [ { "page": "451" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/98/0448-01" ] }, { "cite": "172 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5083271 ], "year": 1981, "pin_cites": [ { "page": "974" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/172/0968-01" ] }, { "cite": "184 Ill. App. 3d 66", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639100 ], "year": 1988, "pin_cites": [ { "page": "76" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/184/0066-01" ] }, { "cite": "117 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545386 ], "pin_cites": [ { "page": "24" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/117/0018-01" ] }, { "cite": "94 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106963 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/94/0138-01" ] }, { "cite": "113 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626466 ], "pin_cites": [ { "page": "154" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/113/0151-01" ] }, { "cite": "119 Ill. 2d 259", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192371 ], "year": 1983, "pin_cites": [ { "page": "265" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/119/0259-01" ] }, { "cite": "109 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126692 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/109/0357-01" ] } ], "analysis": { "cardinality": 609, "char_count": 13672, "ocr_confidence": 0.753, "pagerank": { "raw": 1.1450797790326969e-07, "percentile": 0.5799262814164069 }, "sha256": "f45ecbb11214a59d14ff06614770b0508b4230b8db290500582739d254190849", "simhash": "1:98e3b59aa7c63cfb", "word_count": 2266 }, "last_updated": "2023-07-14T21:01:48.752962+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD MOONY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOODWARD\ndelivered the opinion of the court:\nThe State appeals from an order of the circuit court of McHenry County rescinding the statutory summary suspension of the driver\u2019s license of the defendant, Richard Moony.\nOn October 23, 1989, the defendant was arrested and charged with driving under the influence of .alcohol. At that time, the defendant was given a warning to motorist with respect to the implied-consent law and, according to the officer\u2019s sworn report, submitted to chemical testing which disclosed an alcohol concentration above the legal limit of .10.\nOn November 1, 1989, the defendant filed a petition to rescind the statutory summary suspension of his driver\u2019s license which would take place on the 46th day following his arrest. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 \u2014 501.1(g).) A hearing on the petition to rescind was scheduled for November 22, 1989. The defendant also caused a subpoena to issue to the arresting officer for the hearing.\nOn November 22, 1989, over the objection of the defendant, the State was given leave to amend the arresting officer\u2019s sworn report on its face; the hearing and the subpoena were continued on the motion of the defendant until December 6,1989.\nOn December 6, 1989, the defendant answered ready for the hearing. The State also answered ready. Defense counsel then informed the trial court that the arresting officer was not present. The prosecutor informed the court that he spoke to the officer, who was ill. The officer also told him that he did not realize that the subpoena had been continued. In any event, due to his illness, he could not be present in court.\nThe trial court interpreted the prosecutor\u2019s comments as a request for the continuance. In response, the defense counsel indicated that defendant had been ready to proceed at the earlier hearing date until the State\u2019s motion to amend was granted and that the defendant was ready to proceed to hearing on the petition to rescind. The prosecutor offered to be placed under oath or file an affidavit from the officer or the officer\u2019s doctor. The trial court then stated as follows:\n\u201cThe statute on this section does state that if the officer is subpoenaed and fails to appear, it shall be dismissed.\nWe try to be realistic about this and cover emergencies. However, a motion to continue is within the discretion of the court.\nThe statute does further provide how a motion to continue shall be presented, namely, in writing, supported by affidavit.\nThis is the second time the case has been before the court. The file does reflect the prior continuance was on defendant\u2019s motion. It was occasioned by the State\u2019s eleventh-hour amendment of the petition.\nAnd there is a prevailing philosophy in the Motor Vehicle Code to avoid multiple court appearances.\nSo, on the failure of the officer to obey the subpoena and without an adequate motion for continuance, I am going to grant the petition to rescind.\u201d\nThis appeal followed.\nOn appeal, the State contends that the trial court erred in granting the petition to rescind the summary suspension on the basis of the failure of the subpoenaed officer to appear at the hearing on the petition.\nThe relevant statutory language reads in pertinent part as follows:\n\u201c(b) Upon the notice of statutory summary suspension served under Section 11 \u2014 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 \u2014 501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension. Such hearings shall proceed in the court in the same manner as in other civil proceedings.\nThe hearing may be conducted upon a review of the law enforcement officer\u2019s own official reports; provided however, that the person may subpoena the officer. Failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.\u201d (Emphasis added.) Ill. Rev. Stat. 1989, ch. 951/2, par. 2 \u2014 118.1(b).\nIn granting the petition to rescind, the trial court relied on section 2 \u2014 118.1(b). The trial court believed that the language, \u201c[failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding,\u201d required the court to grant the petition in the absence of the subpoenaed officer.\nWe are of the opinion that section 2 \u2014 118.1(b) does not require that the trial court grant the petition to rescind under such circumstances. Our supreme court case law states that the burden of proceeding with proof in statutory summary suspension proceedings is on the motorist and not on the State. (People v. Orth (1988), 124 Ill. 2d 326.) By filing his petition to rescind, the defendant assumed the burden of gaining rescission of his statutory suspension. He also subpoenaed the arresting officer. Consistent with his petition, the defendant sought a hearing on his summary suspension, but he did nothing further to assume the burden of proceeding in the case. The defendant did answer \u201cready\u201d for hearing, but did not present any evidence he had in addition to the officer\u2019s testimony, nor did he indicate that the officer\u2019s testimony was the only evidence he intended to present at the hearing. If the arresting officer failed to appear in answer to the subpoena, defendant could have sought a continuance or sought to have the officer held in contempt for failure to appear. Under these circumstances, the defendant was not entitled to a rescission of the summary suspension.\n*2 Nonetheless, we must comment that given the language of section 2 \u2014 118.1(b), we understand the trial court\u2019s dilemma in this case. In one section, the statute requires that the proceeding on the petition to rescind be conducted \u201cin the same manner as the other civil proceedings.\u201d Thus, the burden to proceed is placed upon the party seeking the relief, namely, the defendant. Yet, later in the statute, the language provided that the trial court shall consider the failure of the officer to answer a subpoena to be \u201cthe same as the failure of a complaining witness to appear in any criminal proceeding.\u201d The failure of a subpoenaed officer to appear at a summary suspension hearing would have the same effect as the failure of the complaining witness to appear in a criminal prosecution proceeding, i.e., the State would \u201cnolpros\u201d the case.\nThus, the two concepts, the defendant having the burden of going forward and the effect of the complaining witness not being present, are at odds with each other. The decision of this cause is dictated by the case law set forth by our supreme court. However, we urge the legislature to correct this conflict in the statute.\nSince the defendant was not entitled to rescission of the summary suspension of his license at the time the court below granted the relief sought by the petition, the defendant remains entitled to a hearing and is entitled to such further steps as may be available to present his evidence. The cause is accordingly remanded to the trial court for further proceedings consistent with this opinion.\nRemanded.\nUNVERZAGT, P.J., concurs.", "type": "majority", "author": "JUSTICE WOODWARD" }, { "text": "JUSTICE REINUA.RTt\nsnpHalW - \u2014 --\"l\u00edT\ndefendant to appear at the hearing does not affect his obligation to go forward with his evidence. The majority\u2019s rationale effectively makes that portion of section 2 \u2014 118.1(b) of the Illinois Vehicle Code at issue here meaningless, contrary to the rule of statutory interpretation that statutes should be construed so that no term is rendered meaningless. Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.\nThe statute provides that \u201c[fjailure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.\u201d (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 \u2014 118.1(b).) This language does not make it clear that if a subpoenaed officer is not present rescission will automatically be granted, nor does it make it clear whether the trial court has discretion to continue the hearing in such circumstances. Accordingly, this language is ambiguous.\nWhen the language of a statute is susceptible to different interpretations, courts must ascertain and give effect to the legislature\u2019s intent (People v. Goins (1988), 119 Ill. 2d 259, 265; Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154), and, where the language is ambiguous, it is proper to consider the legislative history (People v. Boykin (1983), 94 Ill. 2d 138, 141), including the debates on the floor of the General Assembly (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24).\nA review of the legislative debate shows that the legislative intent was to give the trial court discretion under these circumstances. When addressing the concern about the possible consequences of a subpoenaed arresting officer not appearing, Senator David Barkhausen, the senate sponsor, stated, \u201cit is not the legislative intent of Section 2\u2014 118.1 of the bill to limit the circuit court\u2019s authority under those circumstances to grant a continuance.\u201d (84th Ill. Gen. Assem., Senate Proceedings, June 26, 1985, at 184.) Therefore, it appears that the legislative intent was to give the trial court discretion in these circumstances. While the legislature\u2019s choice of wording in the statute was ^wPwtunatelv imurecise and should be clarified by the legislature as\na continuance or nolle prosequi. Notwithstanding this line of cases, the legislation at issue appears designed to refer to a situation in a criminal case where the complaining witness\u2019 failure to appear results in a dismissal by the court and where the State does not move for a continuance or nolle prosequi and fails to present evidence. In a hearing on a petition for rescission of a statutory summary suspension, however, the burden is on the defendant, as the majority correctly states, and the witness defendant subpoenaed is a police officer over whom a defendant has no control. The options of nolle prosequi and continuance are not available or are unfavorable to the defendant under the circumstances. The failure of the subpoenaed police officer to appear actually prevents the defendant from using the procedures granted by the statute to meet his burden. Thus, the State\u2019s argument is without merit.\nI believe the trial court has the discretion to grant a continuance when the subpoenaed officer fails to appear, rather than only to order a mandatory rescission of the statutory summary suspension. Thus, it must be determined here whether the trial court abused its discretion in denying the State\u2019s oral motion for a continuance, as argued alternatively by the State.\nAs the rescission proceedings are civil in nature, Illinois Supreme Court Rule 231(a) applies, and states, in pertinent part, as follows:\n\u201cIf either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence ***; and (4) that if further time is given the evidence can be procured.\u201d (107 Ill. 2d R. 231(a).)\nAlthough the assistant State\u2019s Attorney orally moved for a continuance and failed to provide an affidavit, denial of an oral motion lacking an affidavit can still be an abuse of discretion. Jack v. Pugeda (1989), 184 Ill. App. 3d 66, 76; Rutzen v. Pertile (1988), 172 Ill. App. 3d 968, 974. But see Mann v. People (1981), 98 Ill. App. 3d 448, 451 (holding that a trial court\u2019s denial of a motion for a continuance not accompanied by an affidavit cannot be regarded as an abuse of discretion).\nIn this case, the assistant State\u2019s Attorney informed the trial court that the officer, who was not the State\u2019s witness, was unaware that the subpoena had been continued and, in any case, was ill with a bronchial infection and would be unable to appear in court. Further, the assistant State\u2019s Attorney offered to be placed under oath or file an affidavit from the officer or the officer\u2019s doctor. It also appears from the record that the assistant State\u2019s Attorney only learned of the officer\u2019s illness when he called the officer during an earlier recess on the December 6 proceedings. Under these circumstances, the assistant State\u2019s Attorney\u2019s oral statements substantially complied with Rule 231(a). Thus, the trial court abused its discretion by not granting a continuance. For these reasons, I would reverse the judgment of the circuit court and remand the cause for proceedings on defendant\u2019s petition for rescission of his statutory summary suspension.", "type": "concurrence", "author": "JUSTICE REINUA.RTt" } ], "attorneys": [ "Thomas F. Baker, State\u2019s Attorney, of Woodstock (Williams L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Richard C. Kelly, of Crystal Lake, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD MOONY, Defendant-Appellee.\nSecond District\nNo. 2\u201489\u20141328\nOpinion filed November 27, 1990.\nREINHARD, J., specially concurring.\nThomas F. Baker, State\u2019s Attorney, of Woodstock (Williams L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nRichard C. Kelly, of Crystal Lake, for appellee." }, "file_name": "0422-01", "first_page_order": 444, "last_page_order": 450 }