good morning everyone the first place on the agenda for the call this morning is agenda number eleven case number one two three three eight five people versus for a one house or you may proceed suspension that arose from an arrest for dui why and the crux of the case is that any evidence that tends to cast doubt that judge who hears a case can reasonably infer that a parking lot especially a well known private companies parking lot is all the private business therefore it's privately own and it can also be reasonably infer that it is being privately maintain by that lot is not being privately maintain because it can be reasonably infer that it is by the private business that sits on in this case questions that were asked by the state of mr roll want to who was the only witness during the case was whether or not he drove to the lot and he in fact never said that he drove to the lot there was no evidence that he ever drove into that lot since i came home from a restaurant was only come in drive with the engine running not sure of the car was in drive but the engine was running yes so the issue here though your honor is not whether or not he was in control of the car but whether or not the lot was a private plots and whether or not any he was driving on a public highway because so we can infer that he was driving on a public airways shortly before the roost no there's no such and all the case last two dates actually state that that in order for it to be to infer that he was driving there needs to be more than just the fact that he is in control of the vehicle there needs to be evidence that it was that it was been has been driven on a public clock at the time or shortly before even the case that the state relies on which is people versus health that rules that way as well in health there was a tipster that saw the driver drive into a jules parking lot and even in that case which is the only case that actually supports the killing the state's position in here states that even in those circumstances when you see a tipster says that he saw the person driving and  but the police officer that not see the person driving to the law that is not enough to prove that he was especially for prima facia case we're talking about so no reasonable inference can be gleaned from i'm not here not in our case i don't know if in other cases possibly but not in our case because in our case there is no evidence that he actually drove that vehicle at all the fact of the  october on the club or night is not an inference that that he drove the vehicle he could have been dropped off by his family there is if it evidence that he was in chicago with this family at a restaurant and then they drove back to joliet there's no evidence that he actually drove the vehicle to the joliet law it could be inferred or reasonably infer that his family dropped them off there to pick up his own car or it could have been based on the evidence that he was driven there by a friend or anybody else it could have been it could be inferred that he is parked by the sell alcohol he could have been he could have driven there went into the walgreens purchased alcohol and drank it in the car never drove the car it's could have been that he had some alcohol prior to drug arriving at the lot but then later there's evidence that he in just the drugs heroin and other drugs he could have done that at the law there is no evidence whatsoever that he actually drove on a public highway in the car councilor you making the argument by the by making the representation that he was in a private parking lot that he had made on his prime talking about a summer suspension rescission in the private parking lot is some of the evidence to support his position correct coralie needs to be present in order to make out a primal fetii absolutely you're absolutely correct and in order to show that it to pass that very low threshold burden he needs to show that he was in a private lot and did insist that the state  one question during the whole hearing if that end they knew from the very beginning from the very beginning of the case when i was the attorney who argued the case also in front of the  court the in the opening argument i made it very clear that the argument here the crux of the argument would be that he is on a private law and i informed the state and the judge and everybody knew that the argument is going to be that he was in a private line with the state attempted to do was to show that he was driving shortly before hand to the law and therefore he was driving on a public highway they never asked him one question of how long have you been on that lot they never asked one question about the lot not being private and in fact based on the evidence in this case specifically of trial court made a mistake saying that she believed that the lot was that with the legislature meant by private life would be just the driveway but our health court said no that's not what the law is and then they ruled the way they ruled however they ruled based on reliable and rely on a key and health and health is the only case from of a bar restaurant bar and the state actually presented the evidence first and the defendant said or move for the record finding that the judge denied the direct the find and afterwards they moved on and then the petitioner with the final presenting evidence that the law was privately maintain however if the state's logic under health works then the defendant should have won or should it petition for the wreck the finding and in months along go should have been granted because the state's witnesses stated that it was a private or she said that the only evidence that there were for that was presented there was that the law was of a restaurant that was either through discovery or through some research to determine the ownership of a lot well it's not only ownership however it's ownership and maintenance and maintenance so i read up how difficult is that be to discern contract for maintenance all these things that are required as you said some discovery and then in petitions to rescind there's not that much time because of the time limits and petitions to resend to present these type of evidence the state is in a much better position to preside at a petition to rescind evidence that that that they are municipality does not or purview they have that information of whether or not that light itself they can very easily and certan from the city that the police department is whether or not that law is publicly or privately maintain moreover your honor again we're talking about a prima facia case we're not talking about that in the entire argument similar to probable cause here you don't a petitioner does enough evidence to surpass that prima facia requirement and a prima facia requirement is just every quarter meant as this court says an earth is any evidence which tend to cast doubts on the that the law is not a public highway and the fact that my client was in the walgreens parking lot and it is and the spirit of that the walgreens is a privately a private company in order to show a prima facia case that should have that a judge can reasonably infer that the lot that the walgreens is sitting on is also maintain by these inferences these peddling inferences i mean is it really a reasonable inference to think that family members drove somebody to a perky in line left him there behind the wheel occur with the leaps can you make when you make a reasonable inference if you have evidence that a person is sitting in the in the in the driver's seat and the car is running but you don't have any timeframe you don't know what happened just prior to that there's no evidence whatsoever that anybody saw mr all want to drive and so and it's three thirty am it is very it at what time  reasonable inference stops because at what time for example the family drove back from chicago did they drive at three thirty am and that's when they dropped them off there or did they drive earlier inference in this situation you have somebody who was certainly asleep behind the wheel of the car so he didn't just get that the car may have been running but o indicate that he was drunk or high at the time the evidence was that the car was in the walgreens parking lot and he was behind the wheel and there is evidence there was  believe a beer in the car which is can be inferred that is sold at the wall as well so i think with the inferences we have to be careful as to how  many inferences based and these very little fast can we make so your argument is it's not a permissible inference that he was driving down the highway before he got there but it is a permissible inf parking and we have a fact that is uncontested by the state and by anybody that walgreens is a parking lot of a private business we have a fact that was uncontested by the state  for the purpose of prima facie case that the walgreens is a private company and that it could be inferred because it's a private company and there's no evidence otherwise that it's also maintain now so that's another inference right make its own and maintain correct because he says it is a private property i mean there's no other it's a private property  shopping center and there were they always uncontested and it was and if if there was an issue especially for the third  burden here and you hire a burden to show something in the affirmative during a prima facia case that has never been required or asked by any other courts to do and health came by and said and did the only time that any court in illinois has said that mr search for your time  court's need to delve into the private public distinction and that is our argument that the evidence showed circumstantially that this defendant had been driving on the public highways prior to and in his intoxicated travels in the walgreens parking lot the evidence from the defendant himself at the decision hearing from the defendant's own testimony shows that the engine was running in his vehicle he had been driving in a car earlier he says with his family  so he did place themselves in a vehicle earlier in the evening at some point he can see that he was the sole occupant of the vehicle although i think he was referring to his his presence in the vehicle in the parking lot it's it's a bit vague on that  point he conceded that earlier in the evening he had become intoxicated by taking clothes of pete and heroin and drinking and the transmission also was in drive and that was not that did not come out in this testimony but it was in the sworn officers report which was before the trial court and that's at sea nine of the record our view is that on this evidence it's reasonable to presume that the defendant had been driving on a public highway prior to and in his travels in the walk greens parking the argument i just made that it was reasonable inference to draw that he had been driving on private on a public highway just prior to entering in the walgreens parking lot of the state are you going to feel that the walk means parking lot was not necessarily private private property even though the defendant's burden at this point is lower it's not beyond reasonable doubt our view is that that simply not enough to presume that the property was private for purposes of the decision statute public agency would maintain the parking lot of terence to private business sure your honor first of all well there's two parts to this the first is the first part is whether it's private and we feel that the defendant did not is burden on that point having shown it was private he still has to show that it was privately maintained so i agree with you that that's another problem of his burden now it's not unheard of for retail establishments to lease from a public entity if it's more economical for the corporations to do that it's not unheard of for a private company owning private lands to contract with the municipal government for upkeep of power the coverts in case which i cited my brief was an example where the evidence showed that the property was privately owned by the railway company leased by the city for purposes of parking and part of that lease required that the city maintain it by plowing repairing paving and so forth so in that case the motorist lost at the rescission period because although he showed that each property was private he failed  to make the additional necessary showing that it was privately maintained hence it was a public highway for purposes of the verses of statue so that combination of private public ownership and private up maintenance is something that occurs in illinois for sure the burden  the defendant to show them correct your honor by probably facia evidence and again our view is that simply it's the mere fact that a piece of property is adjacent to a retail store a walgreens parking lot if you will is not enough under a motion for a directed finding which the judge granted so we never got to that stage of proceedings where the state had to produce evidence as my colleague said though here if the court were to remount and disagree with the state on this question  six days after the judgment here which would have been late november of two thousand and sixteen the problem potential problem with mootness is that this defendant has been incarcerated since i believe february or march of two thousand and seventeen and i'm not incarceration period and i did discuss this with counsel before this argument and we'd be happy to supplement the record with additional authority with the court's leave of course after oral arguments on that point be difficult to obtain for a motorist under these circumstances is overstated the state is in no better position to interfere in or ascertain the public or private nature of real estate than it is way of going about getting some evidence above and beyond the mere fact that the lot was via walgreen it was not a law that it was not he he started he determined that simply because it was a walk in his life didn't mean that it was either but a bit of the judge's reasoning was not accurate and i'd like to address the issue of the i'm not again we had that conversation just prior to the argument today but based on my knowledge or on v a summary suspension continues until are up until it your of licenses reinstated whether or not the suspension is for six months or a year it will continue and the secretary of state will not renew your license until you go in and get it reinstated so in fact whether it calls or not mr will want his license is still suspended because he has never reinstated the effect of it is that effect on his driving abstract it does show that he has now a summer suspension which will in effect hopefully he will never have another d y when the fact will affect him in later in the future possibly not only with his insurance but also with if he gets another he why the way that they see the length of the suspension to secretary of state and the penalties the criminal penalties as well so  i think that the sentence for the dui was supervision or because it's it was his first year why but it it was running concurrent with his arm other so he actually had was arrested for the deal why while the underlying case was ongoing the drug case was ongoing so he was he had a different case he had a conference the ruling of the judge in the lower court was mistaken altogether because she believes that any law meaning even your drive to only your driveway is what the legislator behind health it basically in a fact presumes every lots is a public highway even your private parking lot is a private highway or a apartment building lots are public highways and for prima facia case that burden is too high to require the defendant the petition to bring evidence maintained by the city so he attempted to maybe show something that that is private but in fact in with his own evidence show that it was not but that was  facia case is if you take that leap of a reasonable inference just because he was in a lot of a walgreens does not mean and he was earlier we know that he was in chicago you cannot make that inference that he was in any way driving on the highway at any time earlier because you have a question of timing and when and even in the health court said that even a tipster is not enough to show that  car was i came home not to the lot but he said i came home from a restaurant with my family that's not an admission that he drove he came home to or from reston in chicago and then the state asked him but you have been driving from the restaurant with your family again that is and he said correct again that is not an admission and i think the state today continue to acknowledge the fact that there is absolutely no family did not dropping off that or later on he came with a friend or very reasonable to infer that he arrived at the lot not high or drunk and he got high and drunk last or maybe he drank a little bit before but just drinking a beer or two is not enough to be impaired and then when he arrived at the lot that's when he and just that the heroin there's no dispute here that he and just the heroin and he could have done that at the lot so there is absolutely no evidence to infer that he was driving on the highway the state did not develop that cross examination did not ask him the questions of why did it happen and why did he drive and when you say you came home from a restaurant with my family when you say that the you mean that you actually drove that car they never asked that question so you cannot infer that answer in th additional questions could have acted asked or whatever it is that it could have been a list of by the state or by the petitioner at the time unfortunately the fact is that that record is what we have here today and the on the fact that it is a public highway it is well known that walgreens and unlike council argued earlier my client was not just parked adjacent to the lot adjacent could be on a i'm on the side of the arguments are excused with or th