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DUI Dismissed After State Trooper Consistently Does Not Come To Court
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.
How To File A Motion To Dismiss
In A Criminal Case
See also this Handy Guide On Filing A Motion To Dismiss in a criminal case to discover more on this topic.
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
View all episodes
By Police NuggetsPeople 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.
How To File A Motion To Dismiss
In A Criminal Case
See also this Handy Guide On Filing A Motion To Dismiss in a criminal case to discover more on this topic.
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