dissenting:
The majority has held that Hall should not enjoy immunity from answering the State’s questions during his rescission proceedings, adopting the policy articulated in Village of Algonquin v. Tilden, 335 Ill. App. 3d 332, 780 N.E.2d 832 (2002), and that its holding obviates the need to address the trial court’s rescission order because additional proceedings are now warranted. For the following reasons, I disagree with the majority’s findings and respectfully dissent.
In Tilden, the court held that “defendant’s filing of her petition waived any right against self-incrimination that she might have had in the suspension proceedings.” Tilden, 335 Ill. App. 3d at 338, 780 N.E.2d at 836. The Tilden court found support for its holding in People v. Lindsey, 199 Ill. 2d 460, 771 N.E.2d 399 (2002), “in which the supreme court held that a probationer may be compelled to testify at a probation revocation hearing.” Tilden, 335 Ill. App. 3d at 338, 780 N.E.2d at 837. Tilden recognized that Lindsey was distinguishable in that, in Tilden, the “defendant faced a contemporaneous criminal action at the time she petitioned to rescind the license suspension” {Tilden, 335 Ill. App. 3d at 339, 780 N.E.2d at 837) whereas in Lindsey the defendant’s “testimony ‘only impacted his probationary status and did not realistically expose him to any further proceedings, such as indirect criminal contempt sanctions.’ ” Tilden, 335 Ill. App. 3d at 339, 780 N.E.2d at 837, quoting Lindsey, 199 Ill. 2d at 470, 771 N.E.2d at 407.
Nonetheless, Tilden found it could accord Lindsey based on Justice Freeman’s citation, in a concurring opinion, to Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), in which the Supreme Court held that “ ‘a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.’ ” Lindsey, 199 Ill. 2d at 481, 771 N.E.2d at 414 (Freeman, J., specially concurring), quoting Murphy, 465 U.S. at 435 n.7, 79 L. Ed. 2d at 425 n.7, 104 S. Ct. at 1146 n.7. Tilden “reconcile[d] Galante, James, and Lindsey [to] hold that a motorist’s fifth amendment right against self-incrimination is not violated when he is compelled to testify as an adverse witness in a hearing on his petition to rescind a statutory summary suspension of driving privileges, but any incriminating testimony from the civil proceeding is inadmissible in other criminal proceedings, such as a contemporaneous DUI action.” Tilden, 335 Ill. App. 3d at 339, 780 N.E.2d at 837.
The majority finds that the policy articulated in Tilden eliminates the self-incrimination problem, noting that it would appear that any information gleaned from Hall’s coerced statements in a rescission hearing could not be used as a discovery source for the State in a separate, criminal proceeding. That, in my opinion, is insufficient. Based on the foregoing case law, I would agree with the majority to the extent that the State can call the petitioner in a proceeding to rescind a statutory summary suspension to testify and the trial court can compel such testimony, but only if the danger that the petitioner’s testimony might be used in a subsequent criminal proceedings is actually removed.
Courts have relied on the danger of the use of testimony, not its actual use, to find that the fifth amendment protections apply, and it is the danger that must be removed before the privilege is overcome. See, e.g., Lindsey, 199 Ill. 2d at 471, 771 N.E.2d at 408 (“because of the stringent procedural burdens involved in charging and prosecuting a defendant for indirect criminal contempt,” defendant did not face a realistic expectation that his testimony at a hearing on a petition to revoke probation would subject him to indirect criminal contempt prosecution where the petition did not inform defendant that he could or would be subject to indirect criminal contempt charges for failing to follow the court order); Pinkney v. District of Columbia, 439 F. Supp. 519, 533 (D.C. Cir. 1977) (“[t]he protections afforded by the self-incrimination clause go beyond forbidding the government to use testimony obtained by compulsion to convict the speaker. The privilege equally restrains the government from coercing the witness into making the choice between exercising the privilege and risking the burden of some governmental sanction” (emphases added)).
Tilden held that the petitioner in a rescission proceeding “waived any right against self-incrimination.” Tilden, 335 Ill. App. 3d at 338, 780 N.E.2d at 836. In Lindsey, our supreme court specifically found that the defendant’s testimony at his probation revocation hearing was not a violation of the defendant’s privilege against self-incrimination because he did not face a realistic expectation that his testimony would subject him to indirect criminal contempt. Lindsey, 199 Ill. 2d at 470, 771 N.E.2d at 407. I believe an important question remains for a proceeding to rescind statutory summary suspensions as to what standard the court should employ to determine that the danger is actually removed and who has the burden of proving it to the court. The following is instructive:
“[T]he government may not use a protective order to compel a witness to testify during a *** civil proceeding. Absent a grant of immunity, the deponents were entitled, with or without a protective order, to assert their fifth amendment privilege in answer to potentially incriminating questions in a civil proceeding. In Pillsbury Co. v. Conboy, 459 U.S. 248, 74 L. Ed. 2d 430, 103 S. Ct. 608 (1983), the Supreme Court established this principle by reversing a contempt order entered against a civil litigant who had not received a grant of immunity and who asserted his fifth amendment privilege against self-incrimination in deposition testimony. The Court ruled that a party to a civil action has a right to assert the privilege until immunity is granted by officials of the Department of Justice. Id. at 261.” (Emphasis added.) In re Grand Jury Subpoena (Under Seal), 836 F.2d 1468, 1471-72 (4th Cir. 1988).
Moreover, section 106 — 1 of the Code of Criminal Procedure of 1963 provides that “[i]n any *** trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.” (Emphasis added.) 725 ILCS 5/106 — 1 (West 2004). Thus, for material witnesses our legislature has required affirmative action by the State to take advantage of the rule that it may compel testimony in a civil action where that testimony might be used in a subsequent criminal proceeding. The State must file a motion with the court requesting an order that the witness be released from all liability to be prosecuted on account of his testimony.
A similar rule should apply here. I would require the State to file a motion with the court seeking an order that the petitioner’s testimony in a hearing on a petition to rescind a statutory summary suspension is excluded from the subsequent criminal trial. Absent such a motion and order, the trial court has no assurance that the petitioner’s statements will not be used against him in subsequent criminal proceedings. In the case at bar, the court expressed doubt that any testimony by defendant would be inadmissible at his trial. The State offers no evidence that the court’s concerns were unfounded. The State offers nothing to prove to this court that defendant’s testimony would not have been used at a subsequent criminal trial.
The majority also relies on Galante v. Steel City National Bank of Chicago, 66 Ill. App. 3d 476, 384 N.E.2d 57 (1978), to dismiss Hall’s concern, and mine, that the Tilden policy will cause prosecutors to seek dismissal of rescission petitions in cases where the petitioner refuses to testify. The majority then appears to conclude that fifth amendment protections should be of no concern in rescission proceedings. Again, I disagree.
Galante appears to support the majority’s conclusion that the fifth amendment privilege does not apply to one who institutes a civil proceeding to rescind a statutory summary suspension. Galante, 66 Ill. App. 3d at 480-81, 384 N.E.2d at 61. However, Galante is distinguishable from the case at bar in that there, criminal proceedings were not contemporaneous to the civil action and the possibility of a criminal proceedings was merely speculative. Moreover, the Galante court relied on the fact that the plaintiffs “forced defendants into court.” Galante, 66 Ill. App. 3d at 482, 384 N.E.2d at 62.
The same cannot be said in a rescission proceeding. In rescission proceedings, the petitioner does not force the State into court for his own gain. He merely seeks to recover the driving privileges that he claims the State wrongly took away and is exercising his right to do so under the statutory scheme that permitted the State to take that privilege from him. Therefore, the better rule would be to require that the trial court receive assurance that the danger the petitioner’s testimony might be used against him has been removed before the petitioner testifies in a rescission proceeding, and that the petitioner is entitled to such assurance despite the civil nature of the proceedings. Until the danger is actually removed, fifth amendment protections are still in place; thus, it is insufficient to require the testimony with a simple caveat that it not be used in later criminal proceedings.
Before the petitioner is presented with guarantees that his testimony will not and cannot be used against him, the Hobson’s choice between forgoing his driving privileges or potentially convicting himself of a crime remains. The trial court properly held that defendant could assert his fifth amendment privilege and refuse to testify at the hearing on his petition to rescind. Moreover, the court reached the reasonable conclusion — based on all of the evidence — that defendant’s performance on the field sobriety tests did not lead to a reasonable suspicion that he was intoxicated. Accordingly, I would affirm the court’s order granting the petition to rescind Hall’s statutory summary suspension.
For all of the foregoing reasons, I respectfully dissent.