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05/28/87 the People of the State of v. William Badoud Et Al.

May 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

WILLIAM BADOUD ET AL., DEFENDANTS-APPELLEES 3-86-0465 THROUGH 3-86-0468, 3-86- 470 THROUGH 3-86-0472, 3-86-0475, 3-86-0481 CONS.

SECTIONS 11-501.1 AND 2-118.1 OF THE ILLINOIS VEHICLE CODE (ILL. RE

v.

STAT. 1985, CH. 95 1/2, PARS. 11-501.1, 2-118.1) PROVIDE FOR THE AUTOMATIC SUSPENSION OF A DUI OFFENDER'S DRIVER'S LICENSE.

"UPON RECEIPT OF THE SWORN REPORT OF A LAW ENFORCEMENT OFFICER . . ., THE SECRETARY OF STATE SHALL ENTER THE STATUTORY SUSPENSION FOR THE PERIODS SPECIFIED . . .." (ILL. RE

v.

STAT. 1985, CH. 95 1/2, PAR. 11-501.1(E).) THE REPORT FORM DID NOT PROVIDE A SPACE FOR THE OFFICER TO SWEAR UNDER OATH BEFORE AN OFFICIAL AUTHORIZED TO ADMINISTER OATHS.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

508 N.E.2d 1190, 155 Ill. App. 3d 912, 108 Ill. Dec. 613 1987.IL.695

Appeal from the Circuit Court of Kankakee County; the Hon. Roger A. Benson, the Hon. Edward A. McIntire, and the Hon. John F. Michela, Judges, presiding; appeal from the Circuit Court of Iroquois County; the Hon. Dwight W. McGrew, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE BARRY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

We have consolidated for opinion 14 cases in which we consider the propriety of certain driver's license suspensions and ensuant hearings which, in similar though not identical circumstances, rescinded the summary suspensions.

Under the new provisions, motorists arrested for driving while under the influence of alcohol whose breath or blood tests reveal a blood-alcohol level of .10 or greater are subject to a three-month summary suspension effective 45 days after the date the notice of the summary suspension is issued (30 days after such notice starting January 1, 1987). Drivers refusing to submit to a breath or blood test lose their driving privileges for six months. To prevent either suspension from taking effect, section 2-118.1 (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1) provides for a hearing, whereby a defendant may file a petition to rescind a summary suspension and receive a hearing within 7 to 30 days of filing.

During March, April, or May of 1986, defendants John Graham, William Badoud, Robert Kiger, J. F. Quigley, Betty Marshall, James Fleming, Walter Gray, James Andrew Grubbs, Kenneth Jones, Michael McNerny, Kevin Palmateer, Julie Ann Rawlings, Edwin Winge, and Michael Baugus were arrested for driving under the influence of intoxicating alcohol. Each defendant submitted to a chemical test which disclosed an alcohol concentration greater than .10. In order to comply with the statutory procedure, the arresting officer in each case submitted a report titled "Law Enforcement Sworn Report" to the circuit court and to the Secretary of State, certifying that the tests disclosed an alcohol concentration of 0.10 or more. Section 11 -- 501.1(e) provides:

Each defendant filed a petition to rescind the summary suspension. The defendants asserted one or more of the issues listed in section 2 -- 118.1 of the Illinois Vehicle Code concerning the arrest or testing procedures, but none of the petitions mentioned the officer's failure to swear under oath. The petitions were form documents which required the petitioner to check the appropriate allegations of impropriety. Hearings on the legality of the summary suspensions were held. Each hearing was held before the effective date of the suspension involved, except defendants Badoud, Rawlings and Winge, who had their hearings subsequent to the effective suspension date.

At the hearings, each defendant made an oral motion that the suspension be rescinded because of the absence of a report sworn under oath. The State argued that any irregularity could be cured by the officers' swearing to their certification in open court. In each case the trial court granted the defendant's motion and ordered the suspension of the driver's license be rescinded.

The State now appeals the trial courts' rulings, asserting that, except for defendants Kiger, Quigley, and Winge, no defendant raised the issue concerning the alleged lack of a sworn report prior to the hearing on the petition to rescind. The defendants' attempt to call into question the documents in these cases, which amount to "pleadings" which instituted the action, came after the defendants proceeded to trial without having previously made those challenges. Each petition form submitted by the individual defendant included a statement on the bottom that the hearing would be limited to the issues listed on the form.

In addressing this issue we note that the issue of the failure to file a sworn report was raised by each defendant upon an oral motion before the presentation of any evidence at trial. The State argued the merits of the motion without moving to strike or otherwise challenge the propriety of the motion. Furthermore, a hearing under section 11-501.1 (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1) is civil in nature and the rules of civil procedure apply. (People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381, appeal after remand (1980), 83 Ill. App. 3d 344, 403 N.E.2d 1221.) The purpose of the civil procedure rules is to facilitate the decision of cases on their merits and to eliminate the harsh consequences which often stemmed from unfair surprise at trial prior to enactment of the rules of procedure. Regarding the cases at bar, the State does not claim to have been prejudiced by the fact that this issue was first raised on the day of trial. We conclude that Justice would not be served by reversing the trial courts' determinations on the basis of a pleading defect that ultimately did not prejudice the State.

The State asserts next that the officers' sworn testimony at the hearings in each case would fulfill the requirement of a sworn report. The trial courts rejected this assertion, determining that "sworn reports" are required to be filed with the circuit court and the Secretary of State. The statutory prescription was not met since the plain language of the law requires that the ticket be sworn. In all of the cases now before this court for review, the officers' reports failed to meet the letter of the statute.

The State argues that such cases as People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 431 N.E.2d 450, control this issue. Rehfeldt was decided under the old version of the Illinois Vehicle Code. That version provided for driver's license suspension following the officer's sworn statements to the circuit clerk that a defendant refused to take or failed a test to measure blood-alcohol content, unless the defendant requested a hearing within 28 days. The Secretary of State was notified by the clerk and suspended the driver's license only after the 28-day period ended if no hearing was requested or after the hearing was held if one was requested. The trial court allowed the officer's sworn ...


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