No. 2--00--0081
April 04-2001

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JUSTICE BOWMAN delivered the opinion of the court:

The State appeals the circuit court's order granting themotion of defendant, Long V. Tran, to rescind the statutory summarysuspension of his driver's license. The State argues that thefailure of a police officer to respond to defendant's subpoenashould not have resulted in an automatic rescission.

Defendant was arrested and charged with driving under theinfluence of alcohol (625 ILCS 5/11--501(a)(2) (West 1998)). TheSecretary of State informed defendant that his driver's licensewould be suspended beginning on the forty-sixth day following hisarrest. Defendant filed a petition to rescind the statutorysummary suspension. In connection with the petition, defendantsubpoenaed Officers Wilson and Hattabaugh of the Wheaton policedepartment. In its brief, the State identifies Wilson as the"arresting officer" and Hattabaugh as the "assisting officer."

When the case was called on October 27, 1999, Wilsonapparently was present, but Hattabaugh was not. The trial courtrescinded the summary suspension, stating in its written order that"witnesses did not respond to subpoenas." The State filed a motionto reconsider, which the court denied. We granted the State'smotion to file a late notice of appeal.

The State contends that the court erred by rescinding thesummary suspension merely because one officer failed to respond toa subpoena. The State argues that a defendant has the burden ofproof on a petition to rescind a summary suspension and that thecourt rescinded the suspension without holding defendant to hisburden. According to the State, the proper remedy would have beenfor the court to grant a continuance or to exercise its contemptpower if the officer failed to answer the subpoena.

Initially, we note that defendant has not filed a brief inthis court. However, we will consider the merits of the appealunder the standard set forth in First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

In People v. Moony, 206 Ill. App. 3d 422 (1990), this courtheld that the trial court was not authorized to rescind a statutorysummary suspension merely because the arresting officer failed torespond to a subpoena. We observed that defendant bore the burdenof proof and that defendant had not actually presented any evidenceto support his petition. Moony, 206 Ill. App. 3d at 424-25, citingPeople v. Orth, 124 Ill. 2d 326, 337-38 (1988). We noted that, ifan officer failed to respond to a subpoena, defendant could movefor a continuance or ask the court to hold the officer in contemptof court. Moony, 206 Ill. App. 3d at 425. The Moony majorityobserved that the then extant version of the controlling statuteappeared to give conflicting directions about the manner ofproceeding when a witness failed to answer a subpoena. Moony, 206Ill. App. 3d at 425, citing Ill. Rev. Stat. 1989, ch. 95