Appeal from the Circuit Court of Du Page County; the Hon. C.
Andrew Hayton, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
The State appeals from a judgment of the circuit court dismissing an implied consent hearing, which had been requested by defendant, Vincas Matulis, on the grounds that the statement of the arresting officer required by section 11-501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.1(d)) was not sworn to by the officer.
Officer Pat O'Brien testified at the hearing that at 2 a.m. on December 31, 1981, he was on patrol in the city of Lisle and observed a Ford Pinto in the parking lot of Riedy's Hardware Store. The doors of the car were locked, its headlights on and its engine was running; defendant was lying across the front seat. Attempts to arouse defendant were unsuccessful and Officer O'Brien and his partner opened the door with a device in order to ascertain defendant's condition. Upon arousing defendant the officer noted he had bloodshot eyes, an odor of alcohol on his breath and slurred speech; when defendant left the car he staggered. Officer O'Brien was of the opinion defendant was intoxicated and requested that he perform certain field sobriety tests; defendant declined to do so. He was placed under arrest for driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501) and transported to the police station. There, defendant was admonished pursuant to section 11-501.1(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.1(a)(2)) of his obligation to submit to a breath or chemical test for alcohol and the consequences of his failure to do so. Defendant refused to submit to any tests.
Subsequently, Officer O'Brien filed a report and affidavit of arresting officer, which provided:
"I hereby certify that I have placed the above named person under arrest, and that I had at the time of arrest reasonable grounds to believe that said person was driving a motor vehicle in this state while under the influence of intoxicating liquor in that: He was found in veh., could not be awakened by knocking, upon awakening he had slurred speech, a strong odor of alcohol, staggering gait.
I further certify that said person did willfully refuse to submit to the breath analyses when requested to do so in accordance with Section 11-501.1 of The Illinois Vehicle Code, after being informed of the possible consequences of his or her refusal."
Although Officer O'Brien signed the report, it was not sworn to before a notary public or other officer capable of taking an oath.
The officer filed the report with the circuit clerk who thereupon notified defendant, pursuant to section 11-501.1(d), that his license would be suspended unless he requested an implied consent hearing. Defendant did then file a complaint in the circuit court for the hearing in which Officer O'Brien testified, under oath, as we have earlier described.
• 1 During cross-examination of the officer, however, the trial judge interrupted the proceedings, as follows:
"THE COURT: At this time I'm going to stop this and make five findings.
Number one, that the driver was placed under arrest for the offense of DWI; that the officer did have reasonable grounds; that the driver was informed orally and in writing; after he was so informed, he did refuse to submit; and number five, that this be dismissed on the Court's motion because it is not a sworn statement. It is not notarized. [Referring to Report and Affidavit of Arresting Officer.]
I think it will be overturned on appeal on that basis, so I'm not going to waste any more time with it.
MR. BIRKETT [prosecutor]: At this time I'd ask the — the officer is on the stand. I believe we can correct this by ...