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Criminal Nuggets

Mar 15, 2017

People v. Acevedo, 2017 App (3d) 150750 (March). Episode 309 (Duration 6:09)

Discovery sanction in this rescission hearing consisted of a finding that the defendant met his initial burden, then the State was allowed to have the officer testify to the probable cause for the DUI arrest.

DUI Arrest

Case begins with a car accident.

Defendant failed the fields and blew a .183 on the PBT.

When the officer got to the scene the defendant had difficulty removing his license from his wallet. She testified that the defendant told her he had been at a union meeting and that he had 4 to 5 beers. Defendant was stumbling and swaying.

Discovery Violation

In this DUI case the State was ordered to turn over the squad car video.

The video did exist at one time. The officer made a copy of the DVD from the recording system in her squad car and turned it in with her report. However, it was later found that the DVD was cracked and would not play.

When the officer went to make another copy she discovered it had been recorded over.

The Sanction

The trial court found that a discovery violation had occurred and, as a sanction, imputed that the defendant had sustained his burden of proof and shifted the burden to the State to show cause why the suspension should be sustained.

The trial court declined to bar the officer’s testimony of the arrest, her observations, and the SFSTs as a sanction. 


The defendant argues that the trial court erred by not barring the testimony of the arresting officer as sanctions for a discovery violation.

The defendant argues that, as a sanction, the arresting officer should have been barred from testifying to the events that would have been seen on the DVD.


This reviewing court did not read People v. Kladis, 2011 IL 110920 as broadly as defendant did.

Despite the defendant’s argument that Kladis stands for the proposition that testimony must be barred whenever there is a discovery violation that results in missing evidence, the court concluded that Kladis does not dictate such a hard and fast rule.


There was no abuse of discretion here.

In this case, the trial court considered available options for sanctions and determined that imputing that the defendant had met his burden of proof regarding a prima facie case for rescission was the appropriate sanction, rather than completely barring the arresting officer’s testimony regarding the stop.

PBT Side Note

Also, attorneys should take note of the proper way to admit a PBT result in a rescission hearing.

Under section 11-501.5 of the Illinois Vehicle Code, a PBT, like other field sobriety tests, is admissible to establish that probable cause existed to arrest the defendant for driving under the influence, even though the PBT is not admissible as evidence of intoxication in a criminal proceeding. 625 ILCS 5/11-501.5.

In order to lay a proper foundation for the admission of the results of 5 the PBT, the witness must testify that the PBT machine is one approved for use by police officers, and that the device was checked for accuracy every 93 days by a person specially trained to perform such tasks. 20 Ill. Adm. Code 1286.240; 20 Ill. Adm. Code 1286.250 (2011).

In addition, the witness must testify that the test was administered according to an operational procedure programmed into the instrument and that the test consisted of only one breath analysis reading, based on the instrument’s internal operational calculations. 20 Ill. Adm. Code 1286.260 (2007).