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defendant to appear at the hearing does not affect his obligation to go forward with his evidence. The majority’s rationale effectively makes that portion of section 2 — 118.1(b) of the Illinois Vehicle Code at issue here meaningless, contrary to the rule of statutory interpretation that statutes should be construed so that no term is rendered meaningless. Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.
The statute provides that “[fjailure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).) This language does not make it clear that if a subpoenaed officer is not present rescission will automatically be granted, nor does it make it clear whether the trial court has discretion to continue the hearing in such circumstances. Accordingly, this language is ambiguous.
When the language of a statute is susceptible to different interpretations, courts must ascertain and give effect to the legislature’s intent (People v. Goins (1988), 119 Ill. 2d 259, 265; Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154), and, where the language is ambiguous, it is proper to consider the legislative history (People v. Boykin (1983), 94 Ill. 2d 138, 141), including the debates on the floor of the General Assembly (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24).
A review of the legislative debate shows that the legislative intent was to give the trial court discretion under these circumstances. When addressing the concern about the possible consequences of a subpoenaed arresting officer not appearing, Senator David Barkhausen, the senate sponsor, stated, “it is not the legislative intent of Section 2— 118.1 of the bill to limit the circuit court’s authority under those circumstances to grant a continuance.” (84th Ill. Gen. Assem., Senate Proceedings, June 26, 1985, at 184.) Therefore, it appears that the legislative intent was to give the trial court discretion in these circumstances. While the legislature’s choice of wording in the statute was ^wPwtunatelv imurecise and should be clarified by the legislature as
a continuance or nolle prosequi. Notwithstanding this line of cases, the legislation at issue appears designed to refer to a situation in a criminal case where the complaining witness’ failure to appear results in a dismissal by the court and where the State does not move for a continuance or nolle prosequi and fails to present evidence. In a hearing on a petition for rescission of a statutory summary suspension, however, the burden is on the defendant, as the majority correctly states, and the witness defendant subpoenaed is a police officer over whom a defendant has no control. The options of nolle prosequi and continuance are not available or are unfavorable to the defendant under the circumstances. The failure of the subpoenaed police officer to appear actually prevents the defendant from using the procedures granted by the statute to meet his burden. Thus, the State’s argument is without merit.
I believe the trial court has the discretion to grant a continuance when the subpoenaed officer fails to appear, rather than only to order a mandatory rescission of the statutory summary suspension. Thus, it must be determined here whether the trial court abused its discretion in denying the State’s oral motion for a continuance, as argued alternatively by the State.
As the rescission proceedings are civil in nature, Illinois Supreme Court Rule 231(a) applies, and states, in pertinent part, as follows:
“If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence ***; and (4) that if further time is given the evidence can be procured.” (107 Ill. 2d R. 231(a).)
Although the assistant State’s Attorney orally moved for a continuance and failed to provide an affidavit, denial of an oral motion lacking an affidavit can still be an abuse of discretion. Jack v. Pugeda (1989), 184 Ill. App. 3d 66, 76; Rutzen v. Pertile (1988), 172 Ill. App. 3d 968, 974. But see Mann v. People (1981), 98 Ill. App. 3d 448, 451 (holding that a trial court’s denial of a motion for a continuance not accompanied by an affidavit cannot be regarded as an abuse of discretion).
In this case, the assistant State’s Attorney informed the trial court that the officer, who was not the State’s witness, was unaware that the subpoena had been continued and, in any case, was ill with a bronchial infection and would be unable to appear in court. Further, the assistant State’s Attorney offered to be placed under oath or file an affidavit from the officer or the officer’s doctor. It also appears from the record that the assistant State’s Attorney only learned of the officer’s illness when he called the officer during an earlier recess on the December 6 proceedings. Under these circumstances, the assistant State’s Attorney’s oral statements substantially complied with Rule 231(a). Thus, the trial court abused its discretion by not granting a continuance. For these reasons, I would reverse the judgment of the circuit court and remand the cause for proceedings on defendant’s petition for rescission of his statutory summary suspension.