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People v. Ortega





APPEAL from the Circuit Court of Cook County; the Hon. MICHAEL McNULTY, Judge, presiding.


The State appeals from an order of the circuit court following a hearing held pursuant to section 11-501.1 (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1) ("implied consent law") of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 1-100 et seq.) ("Code"). Two issues are presented on appeal, namely, whether the judgment appealed from is sufficiently of record to warrant the exercise of appellate jurisdiction, and whether the trial court properly dismissed the charge pursuant to the implied consent law. For the following reasons, we reverse and remand the cause to the trial court.

On February 18, 1980, at 1:55 a.m., defendant, Ramon Ortega, was arrested for driving a motor vehicle while under the influence of intoxicating liquor. The report and affidavit of the arresting officer, filed with the clerk of the circuit court, certified: that defendant struck a parked vehicle and had the strong odor of alcohol on his breath; and that defendant wilfully refused to submit to the breath analysis tests when requested to do so in accordance with the implied consent law, after being informed of the possible consequences of his refusal. Pursuant to section 11-501.1(d) of the Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d)) the clerk of the circuit court provided defendant with written notice that his driver's license would be suspended unless he requested a hearing at which specific issues would be determined.

Defendant requested a hearing and moved to dismiss the charges contending that the implied consent law was unconstitutional. At the close of the hearing on June 11, 1980, the court orally stated: that the constitutionality or unconstitutionality of the implied consent law had no bearing on the charge of driving under the influence of alcohol; that the issue before the court was whether the State would proceed with an implied consent hearing; that the statutory admonitions were confusing; and, that there was no statutory standard under which the Secretary of State could exercise his authority to suspend licenses. The court ordered "that the Petition submitted by the State against Defendant * * * for failure to submit to a breath test be stricken. However, the charge of 11-501 must remain and has no bearing on the Implied Consent law." The court then set a "trial date" for August 21, 1980. The clerk of the court noted on a form entitled "Court Action and Other Orders" that the hearing was continued to August 21, 1980.

On June 25, 1980, the State filed its notice of appeal from the June 11, 1980, order. On December 9, 1980, the appellate court, pursuant to defendant's motion, dismissed the appeal for the failure of appellant to incorporate a copy of the judgment of June 11, 1980, with a proper certificate by the clerk of the court to show that it embodies an official record. The State made a motion to reconsider the dismissal and attached a copy of an order, identified as exhibit B, signed by the trial judge but not certified by the clerk of the circuit court, dismissing all charges filed against defendant pursuant to the implied consent law. This court reinstated the appeal.


Defendant moves to dismiss for the appellant's failure to incorporate within the record an appealable order, urging that an opinion not made a part of a judgment order is not appealable. In addition, defendant contends that to secure a review of a judgment, such judgment must be shown in the record filed with the appellate tribunal, which is done by incorporating a copy of it with a proper certificate by the clerk to show that it portrays an official record, and there can be no substitute for this requirement. We disagree.

• 1, 2 Hearings under the implied consent law are civil in nature and the rules governing civil appeals are applicable. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d); 73 Ill.2d R. 301 et seq.; People v. Malloy (1979), 76 Ill.2d 513, 519, 395 N.E.2d 381.) Whereas certification is designed to assure the accuracy of the record, it is not a jurisdictional requirement. (Ray v. Winter (1977), 67 Ill.2d 296, 302-03, 367 N.E.2d 678; People v. Marbly (1980), 85 Ill. App.3d 935, 937, 407 N.E.2d 721.) Failure to file an order does not affect its validity. (Landis v. Miles Homes Inc. (1971), 1 Ill. App.3d 331, 335, 273 N.E.2d 153; Ill. Ann. Stat., ch. 110A, par. 272, Historical and Practice Notes, at 210 (1981 Supp.).) The rendition of a judgment is the judicial act by the court at the time it makes its pronouncement and entry of the judgment on the record is simply a ministerial act performed by the clerk. In re Estate of Young (1953), 414 Ill. 525, 533, 112 N.E.2d 113.

• 3 It is apparent from the certified transcript that the order of June 11, 1980, rendered by the court was a final judgment which terminated all further proceedings under the implied consent law. Since the timeliness of the State's notice of appeal is not disputed, this is not a controversy involving the application of Supreme Court Rule 272 (73 Ill.2d R. 272). (See West v. West (1979), 76 Ill.2d 226, 390 N.E.2d 880.) More importantly, defense counsel does not challenge either the accuracy or the authenticity of the signed written order identified as exhibit B *fn1 or the certified transcript of proceedings. In view of the particular circumstances of this case, we conclude that the June 11 order as reflected in the certified transcript of proceedings was of record in accordance with Supreme Court Rule 321 (73 Ill.2d R. 321) and constitutes a final appealable judgment under Rule 301 (73 Ill.2d R. 301). See Ray v. Winter (1977), 67 Ill.2d 296, 302-03; In re Estate of Young (1953), 414 Ill. 525, 533; but see Jones v. City of Carterville (1950), 340 Ill. App. 330, 91 N.E.2d 604.


• 4 The trial court dismissed all further proceedings pursuant to the implied consent law for reasons never succinctly articulated. Defendant supports the court's decision by attacking, on a variety of grounds, the validity and constitutionality of the implied consent law. Defendant maintains that the law creates the "hopeless dilemma" of the arresting officer being required to warn defendant that his driver's license may be suspended under section 11-501.1(a) (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(a)) when the Secretary of State ("Secretary") must suspend the license under section 11-501.1(d) (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d)). Defendant's position is untenable. Suspension shall occur under section 11-501.1(d) only if either the arrestee fails to request a hearing or upon termination of such a hearing "if that be the decision of the Court." Hence the officer's warning that refusal to submit to the breath tests "may" result in suspension of the driver's license was in accord with other statutory provisions.

Next, defendant urges that the officer's warning was inconsistent with a statutory requirement concerning one of the issues to be covered at the implied consent hearing. Specifically, defendant observes that the arrestee must be advised under section 11-501.1(a) that refusal to submit to the analyses may result in license suspension; whereas, section 11-501.1(d) requires that the implied consent hearing contemplate, among other things, the issue of whether arrestee was informed that his license would be suspended if he refused to submit to the test.

This same argument was considered in depth and rejected in People v. Malloy (1980), 83 Ill. App.3d 344, 347, 403 N.E.2d 1221, where the court held that there was no substantive difference in the uses of "may" and "would" for purposes of these provisions in the implied consent law. We follow the holding in Malloy and find that the challenged provisions are in harmony.

Defendant's assertion that the Code does not vest the Secretary with power and duties, and jurisdiction of administering the implied consent law is in error. Section 2-104(a) (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 2-104(a)) provides that the Secretary is "charged with the duty of observing, administering and enforcing the provisions of this Act." The "Act" is the Illinois Vehicle Code, of which the implied consent law, included within chapter 11, ...

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