People v. Connors, 2017 IL App (1st) 162440 (September). Episode 404 (Duration 9:32)

DUI dismissed because prosecutor did not show due diligence in getting the trooper to court for trial.

Facts

A trooper saw a black sedan veer to the left across the lane markings and then to the right so that half the car crossed the fog line.

Forney followed the car for about a mile before he activated his lights and directed the sedan’s driver to pull over.

The driver, Connors, failed the sobriety tests Forney administered. Connors refused to take a breathalyzer test. Prosecutors charged Connors with driving under the influence of alcohol.

Speedy Trial Demand

Defendant demanded a trial and four times the case had to be continued on the state’s motion when the trooper did not show up to court.

There were some status days after that when the defense attorney couldn’t make it and they were waiting for an evaluation.

Eventually, defendant demanded trial again, and again the trooper did not come to court.

Finally Shows Up

When the trooper finally showed up he testified about Connors’s erratic driving and the coordination tests that Connors failed.

Connors stipulated that he told Forney he had drunk four beers, and that he had “nodded off” while driving, which caused him to drive the car across the fog line.

Speedy Extension

Upon the state’s request, the court extended the speedy trial term for 60 days and set the case for trial.

Defendant filed a motion to dismiss arguing that for the court to give the prosecution a 60-day extension, the prosecution needed to show due diligence in its efforts to produce Forney for trial. See 725 ILCS 5/103-5(c).

Connors argued that the prosecution had not shown due diligence.

725 IlCS 5/103-5(c)

The parties agree that only subsection (c) of the speedy trial statute could justify the 60- day extension the trial court granted. Subsection (c) provides:

“If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”

725 ILCS 5/103-5(c).

Due Diligence

The State bears the burden of proof on the question of due diligence.

The test of due diligence is whether the State began efforts to locate its witness in sufficient time to secure his presence before the speedy trial term expired.

Hard To Find

There were at least 2 occasions where the prosecution asked for a continuance because the trooper was not in court and had no explanation for why not.

The third time he didn’t show, the prosecutor admitted that more than a year after the court first set the case for trial and Connors answered ready for trial, after three trial dates set specifically at the prosecutor’s request for which the prosecution’s single witness failed to appear, and knowing that the full 160 days had run on Connors’s speedy trial term—the prosecutor still had not found out how to contact his one witness so that he could set a date on which his witness would come to court.

Really Hard To Find

The prosecutor did not seek to present the testimony of a person with no fixed job or address, or one who tried to avoid trials.

The witness who failed to appear continued to work at his job as a state trooper, a job that he had held since the prosecutor first assumed responsibility for the case about two years before the hearing.

The prosecutor did not say exactly when he started to make an effort to find Forney through his third person contact. He said only that state troopers used a different system than Chicago police.

He did not tell the court when he learned that state troopers used a different system, or what steps he had taken to determine how to get a state trooper to come to court.

Almost two years after he took responsibility for the case, and after Connors had answered ready for trial on multiple trial dates, with delays totaling 160 days solely due to the prosecution’s inability to bring the state trooper to court, the prosecutor did not know how to get in touch with Forney to find out when he could get to court.

Doing Nothing Is Not Due Diligence

Whatever “due diligence” means, it cannot be defined as ignoring or doing nothing about a statutory requirement.

For a long time, the prosecution here did nothing to find out how to bring Forney to court.

After the full 160 days had run on Connors’s speedy trial term, the prosecutor did not act with the diligence needed to justify the 60-day extension of the speedy trial term.

Holding

The trial court’s finding that the State exercised due diligence is against the manifest weight of the evidence because the evidence shows that the prosecutor did not make the effort necessary to bring his witness to court in sufficient time to secure his presence before the speedy trial term expired.

We hold that the trial court abused its discretion when it granted the prosecution a 60 day extension beyond the speedy trial term when the prosecution had not acted with due diligence.

The only possible remedy for deprivation of speedy trial rights is discharge.

Not Done Lightly

We implore prosecutors to take drunk driving charges seriously.

Therefore, because the prosecutor did not show the diligence required for the extension the court granted, we reverse the conviction.

Note

The court said the prosecutor here could have sought instead a 21-day extension of the speedy trial term, under subsection (f) of the speedy trial statute, and for that extension, the prosecution did not need to show due diligence. See 725 ILCS 5/103-5(f).

This section says:

“(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended. Where such delay occurs within 21 days of the end of the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section, the court may continue the cause on application of the State for not more than an additional 21 days beyond the period prescribed by subsections (a), (b), or (e).”

725 ILCS 5/103-5(f).

See Also

Episode 354 DNA Speedy Trial Extension: Best Practice