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On Behalf of | May 31, 2023 | Statutory Summary Suspension

As discussed in previous blog posts, there is a civil and criminal law component to each driving under the influence of alcohol or drugs (DUI) arrest. Illinois Statutory Summary Suspension hearings are civil proceedings. The Statutory Summary Suspension law applies to people arrested on publicly owned or maintained roadways. Many Assistant State’s Attorneys will not contest a Petition to Rescind Statutory Summary Suspension if the police officer confirms he or she never saw the person on a publicly owned or maintained roadway and the arrest was on private property.

Some State’s Attorney’s offices believe it is its duty to contest Petitions to Rescind Statutory Summary Suspension even if the arrest and all related activities occur on what is obviously private property. This could be because it is the Petitioner’s burden to present a prima facie case for rescission of the Statutory Summary Suspension. The Petitioner must show he or she was not on a publicly owned or maintained roadway before the burden shifts to the State to present evidence the property is publicly owned or publicly maintained.

It is not enough to allege the person was found on a privately owned and maintained roadway, that everyone knows is not publicly owned or maintained such as a Walgreens parking lot, and the person was not seen on a publicly owned or maintained roadway. See People v. Relwani, 2019 IL 123385. Nor is it enough to elicit testimony that no police officer has observed any public entity maintain the alleged private roadway located on private property. See People v. Howard, 2022 IL App (3rd) 210134.

How is a Petitioner to shift the burden to the State to prove the roadway in question is not publicly owned or maintained and that the client never was seen on a publicly owned or maintained roadway? One way is to issue an Illinois Supreme Court Rule 216 Request to Admit Facts to the State’s Attorney’s office. The State’s Attorney’s office has 28 days from the date of service of the Request to Admit Facts to respond to the Request to Admit Facts. The State must either admit, deny, or deny based on insufficient knowledge. Failure to respond in a timely fashion could result in all facts being admitted. The State is required to perform a good faith investigation to provide an appropriate response to the facts requested.

The State would be subject to sanctions for denying a fact within its knowledge that is later proven to be true. The sanctions could include payment of costs spent to prove the fact denied in accord with Illinois Supreme Court Rule 219. These sanctions could include reasonable attorney’s fees.

I recently represented a client arrested for DUI after parking in a Speedway station in one of the counties south and west of Cook County. The client had been parked there for several minutes. It appears no police officer knew when he arrived at the Speedway station or saw him drive on any streets surrounding the Speedway station. Notwithstanding, the client was issued a Notice of Statutory Summary Suspension.

I issued Illinois Supreme Court Rule 216 Request to Admit Facts upon the State. The State denied it had sufficient knowledge to answer the requests about police knowledge of where the vehicle was located, and the requests related to ownership and maintenance of the Speedway station. This is a default denial of a Request to Admit.

I sent a letter objecting to the State’s responses as inadequate. I reminded the State that I would seek sanctions including attorney’s fees pursuant to Illinois Supreme Court Rule 219 if I had to purchase a title and fully investigate whether the State denied facts that were true. In response to my letter, the State agreed not to contest the Petition to Rescind Statutory Summary Suspension.

Contact Steven Herzberg at Herzberg Law Firm when facing a DUI charge in Illinois and corresponding Statutory Summary Suspension of your driving privileges.