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									      IN THE CIRCUIT COURT FOR THE TWENTY-SECOND JUDICIAL CIRCUIT
                        MCHENRY COUNTY, ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS,                      )
                                                      )
               Plaintiff,                             )
                                                      )
vs.                                                   )       Case No.   11 TR
                                                      )
YOUR CLIENT’S NAME,                                   )
                                                      )
               Defendant                              )


                                 MOTION FOR SANCTIONS

        NOW COMES the Defendant/Petitioner, YOUR CLIENT’S NAME, by and through his
attorneys, FRANKS & RECHENBERG, P.C., and pursuant to Illinois Supreme Court Rule 219,
moves this Honorable Court to sanction the XXXXXXX Police Department by barring Officer
JONES from testifying about Defendant’s driving, exit from his vehicle and entry into a home
during the Hearing on Defendant/Petitioner’s Petition to Rescind Statutory Summary Suspension
herein, and in support of his Motion, states and alleges as follows:
        1.     That the Defendant was arrested for the offense of Driving Under the Influence of
Alcohol by Officers of the XXXXXX Police Department on or about January 1, 2011.
        2.     That prior to Defendant’s arrest, Officer XXXXXXX activated a video recorder in
his squad car to monitor Defendant’s driving, his approach to/curbing of Defendant’s vehicle, and
Defendant exiting his vehicle. See Defendant’s Exhibit “A” attached hereto and incorporated
herein by reference.
        3.     That on January 19, 2011 the Defendant/Petitioner caused to be issued upon the
XXXXXXX Police Department Records Custodian, a subpoena duces tecum requesting a true
and accurate copy of any video/audio tape taken prior to, during and after the arrest of Defendant
to include the squad car video/audio tape, sally port video/audio tape, police station and booking
room video/audio tape, and breathalyzer video/audio tape. The XXXXX Police Department
received the subpoena duces tecum on January 24, 2011. (The original subpoena duces tecum is
contained in the Court file).



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        4.      The Police Report documenting this incident, XXXXXX Police Department
Police Report Number 11-000022, states, in pertinent part: “This incident was captured via
R/O’s in-squad video camera system along with Sergeant Harper’s. Copies of the footage will be
placed into evidence”. Please see Defendant/Petitioner’s Exhibit “A” attached hereto.
        5.      That pursuant to the subpoena duces tecum issued upon the XXXXXXX Police
Department, Defendant/Petitioner did not receive a copy of the in-squad video depicting the
Arresting Officer (Officer XXXXX) following Defendant/Petitioner’s vehicle or the Arresting
Officer’s contact with Defendant/Petitioner. Defendant/Petitioner received, however, a copy of
the in-squad video from Sergeant XXXXX squad car, which only depicts Defendant/Petitioner
after his arrest. The XXXXXXX Police Department provided a “Certificate of Compliance”,
dated February 1, 2011, which is not notarized, stating: “The Squad Video from Officer XXXXX
malfunctioned; therefore no video will be supplied.       However, the squad video from Sgt.
XXXXX s car was functioning which is included”. Please see Defendant/Petitioner’s Exhibit “B”
attached hereto.
        6.      That on February 16, 2011 the Defendant/Petitioner caused to be issued upon the
XXXXX Police Department Records Custodian, a subpoena duces tecum
requesting a true and accurate copy of any and all requests for maintenance/service orders/repair
records and paperwork associated with the repair of the in-squad video system that Officer
XXXXXXX operated on the date and time of this incident as described in Report Number 11-
000022, as well as a true and accurate copy of any and all requests for maintenance/service
orders/repair records and paperwork associated with the repair of the XXXXXXX Police
Department server or video server, as well as the Department computer system, as a result of the
loss of the in-squad video taken by Officer XXXXX on the date and time of this incident as
described in Report Number 11-000022.        The XXXXXXX Police Department received the
subpoena duces tecum on February 17, 2011. (The original subpoena duces tecum is contained
in the Court file).
        7.      That in response to the subpoena duces tecum issued on February 16, 2011, the
XXXXXXX Police Department provided a “Certificate of Compliance”, dated February 28,
2011, which is not notarized, providing another explanation as to why there was no video from
Officer Mannino’s in-squad video camera. The Certificate of Compliance states, in part: “I have
attached the service ticket for the problem with downloading of the squad videos. I received your

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subpoena on January 24, 2011 and found the problem when fulfilling the subpoena”. Please see
Defendant/Petitioner’s Exhibit “C” attached hereto.
       8.       That Defendant/Petitioner maintains that the responses provided by the
XXXXXXX Police Department in response to Defendant’s subpoenas duces tecum are
inconsistent: the first response claims that the in-squad video system malfunctioned; the second
response claims that the XXXXXXX Police Department experienced an in-station technical
problem while downloading the video. In addition, although the XXXXXXX Police Department
did not produce the video from Officer XXXXX squad car, which would have depicted Officer
XXXXXXX following Defendant/Petitioner’s vehicle, approach to/curbing Defendant’s vehicle
and Defendant exiting his vehicle, the Department produced the video from Sgt. XXXXX squad
car, which only depicts Defendant after his arrest.
       9.       That Defendant/Petitioner also respectfully maintains that in light of the number of
XXXXX Police Department squad cars and the number of traffic stops effected by the XXXXX
Police Department, and the significant number of video recordings conducted by that Department,
it is difficult to understand how the XXXXXX Police Department was unaware of any problems
regarding “downloading” videos, and did not discover any downloading problems until late
January 2011.
       10.      That Defendant/Petitioner argues that since the XXXXXX Police Department
received Defendant/Petitioner’s subpoena duces tecum on January 24, 2011, and since the
Department discovered video downloading problems on or before January 25, 2011, the XXXXX
Police Department, as soon as the Department discovered and corrected the video download
problems, was on notice to review its video inventory and identify videos which had not been
downloaded, and attempt to download said videos.
       11.      That Defendant/Petitioner argues that the responses provided by the XXXXX
Police Department do not state: 1) that there was a problem with the video medium itself, 2) that
the video itself was corrupted, compromised or lost during the Department’s attempt to download
the video, and 3) that once the in-station technical downloading problem was discovered and
repaired, the Department attempted to download the video at a later date.


       12.      That Illinois Supreme Court Rule 219 provides, in pertinent part, as follows: (c)
Failure to comply with Order or Rules. If a party, or any person at the instance of or in

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collusion with a party, unreasonably fails to comply with any provision of part E of article II of
the rules of this Court (Discovery, Requests for Admission, and Pre-trial Procedure) or fails to
comply with any order entered under these rules, the Court, on motion, may enter, in addition to
remedies elsewhere specifically provided, such orders are just, including, among others, the
following:
                (i)     That further proceedings be stayed until the order or rule is complied with;
                (ii)    That the offending party be debarred from filing any other pleading
                        relating to any issue to which the refusal or failure relates;
                (ii)    That the offending party be debarred from maintaining any particular
                        claim, counterclaim, third-party complaint, or defense relating to that issue;
               (iv)     That a witness be barred from testifying concerning that issue….
                        (Emphasis Added)
        13.     That Supreme Court Rule 219 provides the trial Court with significant discretion
in imposing sanctions for discovery violations in civil cases.
        14.     That Defendant/Petitioner argues that the State’s failure to preserve and produce
the video is tantamount to the loss or destruction of evidence and is a discovery violation and
therefore, this Honorable Court has the authority and discretion to sanction the State’s
unreasonable noncompliance with discovery.
        15.     That Defendant/Petitioner argues that when evidence in one party’s control is
missing or destroyed, an inference may be drawn that the evidence was detrimental to that party.
        16.     That although the XXXXXX Police Department may not have acted in bad faith,
Defendant/Petitioner argues that the destruction/loss of the video recording was a discovery
violation, and even when said discovery violation is inadvertent, this Honorable Court should
impose a sanction against the XXXXXXX by barring the Arresting Officer(s) from testifying
about the events contained on the destroyed/lost video. People v. Kladis, 403 Ill.App.3d 99, 343
Ill.Dec.58 (1st Dist. 2010).
        17.     That given the fact that the XXXXXXX Police Department did not preserve the
evidence, i.e. the video depicting Defendant’s driving, the Arresting Officer approaching/
stopping Defendant’s vehicle, and Defendant exiting from his vehicle, Defendant is denied the
opportunity to confront evidence against him.


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          18     That Defendant/Petitioner argues that barring the Arresting Officer(s) from
testifying about the events contained on the destroyed/lost video would be an appropriate sanction
proportionate to the violation. People v. Kladis, Supra; People v. Koutsakis, 255 Ill.App.3d 306,
194 Ill.Dec. 272 (3rd Dist. 1993); People v. Johns, 336 Ill.App.3d 682, 271 Ill.Dec. 144 (1st Dist.
2002); People v. Petty, 311 Ill.App.3d 301, 244 Ill.Dec. 171 (2nd Dist. 2000); People v. Camp,
352 Ill.App.3d 257, 287 Ill.Dec. 336 (2nd Dist. 2004); People v. Schambow, 305 Ill.App.3d 763,
239 Ill.Dec. 525 (2nd Dist. 1999); People v. Aronson, 947 N.E.2d 325, 2011 Ill.App. LEXIS 227
(2nd Dist. 2011).
          19.    That Defendant/Petitioner maintains that the video destroyed/lost by the
XXXXXXX Police Department would have confirmed his information and belief that he was not
under the influence of alcohol, and that the Arresting Officer(s) did not have
reasonable/articulable suspicion, or probable cause, or a basis for Defendant/Petitioner’s DUI
arrest.
          WHEREFORE, the Defendant/Petitioner, YOUR CLIENT’S NAME, prays as follows:
          A.     That this Honorable Court impose an appropriate sanction, specifically
suppressing any evidence regarding Defendant/Petitioner’s driving, the Arresting Officer
approaching/curbing Defendant/Petitioner’s vehicle, and Defendant/Petitioner exiting his vehicle
and entering a home;
          B.     That this Honorable Court bar the testimony of any Police Officers regarding their
observations that are or would have been contained on the destroyed/lost video based upon the
established precedent cited above;
          C.     That this Honorable Court bar the testimony of any Police Officers regarding their
observations that are or would have been contained on the destroyed/lost video, based upon the
established precedent cited above, from the point in time 30 seconds before the Arresting
Officer(s) activated their emergency lights and followed the Defendant/Petitioner until
Defendant/Petitioner walked into a home; and
          D.     Any and all further relief this Honorable Court deems just and equitable under the
circumstances.




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                                    Respectfully submitted,

                                    YOUR FIRM’S NAME


                              By:   ______________________________
                                    YOUR NAME
                                    Attorney for Defendant/Petitioner




YOUR FIRMS’S CONTACT INFORMATION HERE




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