THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOVAN M. HOWARD, Defendant-Appellee.
No. 3-21-0134
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
March 16, 2022
2022 IL App (3d) 210134
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Presiding Justice O‘Brien and Justice Schmidt concurred in the judgment and opinion.
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 21-DT-130 Honorable Donald W. DeWilkins, Judge, Presiding.
Presiding Justice O‘Brien and Justice Schmidt concurred in the judgment and opinion.
OPINION
¶ 1 The defendant, Jovan M. Howard, was arrested for driving under the influence of alcohol (DUI) (
¶ 2 I. BACKGROUND
¶ 3 In February 2021, Howard was arrested for DUI and issued a notice of statutory summary suspension for refusal to submit to or failure to complete testing (
¶ 4 Howard‘s petition proceeded to hearing, where his counsel provided that he was arguing the “public/private property issue.” In opening statements, Howard argued that the implied consent statute only applied to motorists travelling upon public roads, he was arrested at a privately-owned gas station, and the officers never saw him driving on the roadway. Further, he stated that while there may be evidence of consumption of alcohol and an open container in the vehicle, there would be no evidence of him driving while impaired. Howard called two officers to testify.
¶ 5 Officer Steven Smock testified that he worked for the Frankfort Police Department. On February 21, 2021, he had been working as an officer for about four months. Officer Smock was in uniform in an unmarked squad car with his partner. He stated that, at 4:30 a.m., he drove his police vehicle into the parking lot of a Speedway gas station. Officer Smock explained that he was getting gas to finish his shift when he observed a black Impala parked perpendicular across multiple parking spaces on the south side of the building. He stated that he did not see the Impala until he arrived at the gas station. Officer Smock noted that the vehicle was in the Speedway parking lot, he did not know who owned the parking lot, and he never saw anyone maintain it.
¶ 6 Officer Tom Buividas testified that he worked for the Frankfort Police Department. He had worked for the Frankfort Police Department for 14 years as a police officer. On February 21, 2021, he was working patrol as a field training officer. He testified that, at 4:30 a.m., he arrived at the
¶ 7 The defense rested, and the State moved for a directed finding. The State argued that supreme court precedent (People v. Relwani, 2019 IL 123385) provided that Howard had the burden to establish that the parking lot was privately owned, and he failed to do so because both officers testified that they did not know who owned or maintained it. Howard argued that Relwani was distinguishable and that he put forth sufficient evidence to shift the burden to the State to present evidence that the Speedway parking lot was not private property. The court denied the State‘s motion for a directed finding, stating that it was viewing the evidence in the light most favorable to the non-moving party and that the officers testified that they never saw (1) Howard outside of the parking lot or (2) the parking lot maintained by the Village.
¶ 8 The State called Officer Buividas back to testify. He reiterated that he did not know who owned the gas station or maintained the parking lot. Officer Buividas stated that the gas station had two access points, one off Laraway Road and the other off La Grange Road. He recalled the conversation he had with Howard the night of their encounter, when Howard stated that he was coming from a bar located about five miles from the Speedway. Officer Buividas believed that Howard said he was attempting to head home to Homewood. Howard stated that he had consumed
¶ 9 The State also called Howard to testify. He believed that he entered the Speedway parking lot from Laraway Road. Howard stated that his car was running when he was sleeping and the officers woke him up. He was on his way to his girlfriend‘s home in Joliet but she did not answer the phone. Howard then pulled into the gas station and parked. He testified that he did not consume the five Modelo beers at the bar but, rather, earlier in the day.
¶ 10 The State requested that the court deny Howard‘s petition to rescind because (1) the officers did not know who maintained the Speedway, (2) the two roads providing access to the Speedway were publicly maintained, and (3) Howard testified that he drove on a publicly maintained road after consuming alcohol. The court asked the State where the testimony was that the officers had reasonable grounds to arrest Howard for DUI because the burden shifted. The State maintained that it proceeded narrowly because Howard only argued whether the parking lot was privately or publicly maintained and did not present any evidence regarding impairment. Howard argued there was no evidence of impairment, which was the State‘s burden, and proof that he had consumed alcohol earlier that day and drove was not enough to prove impairment or reasonable grounds to make an arrest for DUI. Also, he argued that there was sufficient testimony to support that the Speedway was privately owned and maintained property.
¶ 11 The court granted Howard‘s petition to rescind. It noted that (1) it would not be unreasonable to assume that the Speedway was not publicly maintained and (2) Howard‘s petition raised the basis that the officers had no reasonable grounds and that it had not heard any testimony
¶ 12 II. ANALYSIS
¶ 13 As part of the Illinois Vehicle Code, the implied consent statute provides:
“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person‘s blood if arrested *** [for a DUI offense] ***.”
625 ILCS 5/11-501.1(a) (West 2020).
If the motorist refuses or fails to complete such tests requested by a law enforcement officer possessing probable cause and after receipt of appropriate warnings and documentation, the motorist‘s driver‘s license shall be summarily suspended.
¶ 14 A petition to rescind is a civil matter where the defendant has the burden of proof to establish a prima facie case for recission. People v. Ehley, 381 Ill. App. 3d 937, 943 (2008). In making a prima facie case, the defendant has the primary responsibility for establishing the factual and legal basis for the recission. See People v. Brooks, 2017 IL 121413, ¶ 22. “A prima facie case is [a] party‘s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party‘s favor.” Relwani, 2019 IL 123385, ¶ 18 (quoting Black‘s Law Dictionary 1310 (9th ed. 2009)). Specifically, “[p]rima facie means, at first sight, on the first appearance; on the face of it, so far as can be judged from the first disclosure; presumably; a fact presumed to be true
¶ 15 In recission cases, the appellate court reviews the circuit court‘s factual findings under the manifest weight of the evidence standard, while the court‘s ultimate legal ruling regarding recission is reviewed de novo. Relwani, 2019 IL 123385, ¶ 18. However, “[t]he trial judge‘s finding as to the prima facie case will not be overturned on appeal unless against the manifest weight of the evidence.” People v. Orth, 124 Ill. 2d 326, 341 (1988). A finding is against the manifest weight of the evidence only where the opposite conclusion is clearly apparent or the finding itself is unreasonable, arbitrary, or not based on the evidence. People v. Sanchez, 2021 IL App (3d) 170410, ¶ 25.
¶ 16 Here, Howard sought recission on the basis that the officer had no reasonable grounds to believe that he was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol. See
¶ 17 Recently, our supreme court decided Relwani, which we find instructive on this issue. In that case, the defendant was found in an altered or partially unconscious state behind the steering wheel of a running car in a Walgreens parking lot around 3:30 a.m., which resulted in his arrest
¶ 18 Before the supreme court, the defendant insisted that inferences from his testimony were sufficient to satisfy his burden of making a prima facie showing that the parking lot was not a “public highway” subject to the implied consent statute. Id. at ¶ 21. The supreme court disagreed, noting that the defendant‘s substantive evidence consisted of the lot‘s association with a Walgreens store and its street address. Id. at ¶¶ 21-22. The court noted that the defendant‘s testimony did not even specify the proximity or physical connection of the parking lot to the Walgreens store or the location of the car within the parking lot. Id. at ¶ 22. The court explained:
“Here, defendant‘s mere reference to ‘Walgreens,’ without more, establishes nothing about either the identity of the entity that maintained the lot or the public‘s use of the lot. Those are the essential substantive components for a prima facie showing that the parking lot was not a ‘public highway’ within the meaning of the relevant statutes. While a defendant‘s initial showing need not conclusively establish each required element of the case, it must
provide some affirmative evidence of each one and cannot rely on a passing reference and mere supposition to avoid a directed finding. Here, defendant‘s prima facie showing fell well short of the required mark.” (Emphasis in original.) Id. at ¶ 23.
¶ 19 The supreme court distinguished the case before it from People v. Kozak, 130 Ill. App. 2d 334 (1970), and People v. Montelongo, 152 Ill. App. 3d 518 (1987), explaining that police officers in both cases testified that no governmental body maintained the properties at issue and either the lot was owned by a nonpublic body (Kozak) or it was fenced with posted signage providing that the lot was private and intended for use for patrons of the adjoining business (Montelongo). Relwani, 2019 IL 123385, ¶ 25. The defendant in Relwani did not offer evidence of similar weight. Thus, the supreme court concluded that the circuit court‘s finding that the defendant failed to present a prima facie case was not against the manifest weight of the evidence. Id. at ¶ 26.
¶ 20 Here, we reiterate that Howard needed to offer evidence that either the Speedway parking lot was not publicly maintained or that it was not open for use by the public for vehicular travel. See Helt, 384 Ill. App. 3d at 288. Howard chose to pursue the former, that the Speedway parking lot was not publicly maintained. However, we find that he failed to offer affirmative evidence that cast doubt as to whether the parking lot was publicly maintained and, therefore, did not establish a prima facie case. See Relwani, 2019 IL 123385, ¶ 19. Compared to both Kozak and Montelongo, the officers in this case did not testify that no governmental body maintained the parking lot. Instead, they stated that they did not know who owned or maintained the parking lot. This is not affirmative evidence casting doubt as to whether the parking lot was publicly maintained.
¶ 21 The only other evidence that Howard pointed to in support of his prima facie case is Officer Buividas‘s testimony that he used the Village‘s credit card to purchase gas at the gas station,
¶ 22 Last, we address the court‘s statements regarding impairment after it denied the State‘s motion for a directed finding. It is clear, based on the record, that Howard proceeded under the theory that the Speedway parking lot was not a public highway and he did not present evidence contesting impairment. Since Howard did not present any such evidence, the State did not have to rebut that issue. See Relwani, 2019 IL 123385, ¶ 17. We note Howard was not required to testify that he was not under the influence of alcohol while operating his vehicle as long as there was evidence that, if believed by the court, could establish that fact. People v. Tucker, 245 Ill. App. 3d 161, 165 (1993). Howard presented no such evidence in this case.
¶ 23 Accordingly, the circuit court‘s denial of the State‘s motion for a directed finding, and ultimate granting of Howard‘s petition to rescind statutory summary suspension, was against the manifest weight of the evidence as it was not based on the evidence presented.
¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, the judgment of the circuit court of Will County is reversed.
¶ 26 Reversed.
Decision Under Review: Appeal from the Circuit Court of Will County, No. 21-DT-130; the Hon. Donald W. DeWilkins, Judge, presiding.
Attorneys for Appellant: James W. Glasgow, State‘s Attorney, of Joliet (Patrick Delfino, Thomas D. Arado, and Jessica A. Theodoratos, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Attorneys for Appellee: Steven Herzberg, of Chicago, for appellee.