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

May 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

WILLIAM MORRISON ET AL., DEFENDANTS-APPELLEES 3-86-0429, 3-86-0448, 3-86-0474 CONS.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

508 N.E.2d 1186, 155 Ill. App. 3d 1088, 108 Ill. Dec. 609 1987.IL.696

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

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. WOMBACHER and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The State has appealed from orders of the circuit court of Kankakee County and Iroquois County which rescinded the statutory summary suspension of the driver's licenses of William Morrison, Randy Blanchette, Ronald L. Seng, Ernest Jennings, Morgan D. Prince, Jeffrey Stech, Gerald F. Campbell, and Larry Dean Smith. We have consolidated these cases for purpose of decision since the factual situations are similar.

All of these defendants were arrested during March, April, or May of 1986 for driving while under the influence of intoxicating alcohol. At the request of the arresting officer and after the required warnings had been given, each submitted to a chemical test which disclosed an alcohol concentration greater than 0.10. Under the provisions of the Illinois Vehicle Code, a blood-alcohol concentration of 0.10 or greater requires a statutory summary suspension of the privilege to operate a motor vehicle. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1.) 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:

"Upon receipt of the sworn report of a law enforcement officer . . ., the Secretary of State shall enter the statutory summary suspension for the periods specified . . .." (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(e).)

Other subsections of section 11 -- 501.1 require the arresting officer to serve immediate notice of the statutory summary suspension on the defendant. At that time the suspension commenced on the 46th day following the date the notice was given.

The report form contained a statement that the officer did "solemnly, sincerely, and truly declare and affirm" that he had placed the defendant under arrest for a violation of section 11 --501 of the Illinois Vehicle Code, that he had complied with section 11 -- 501.1 by having reasonable grounds to believe defendant was in violation of section 11 -- 501, and that he had served immediate notice of summary suspension of driving privileges on the defendant pursuant to section 11 -- 501.1. The report form did not provide space for the officer to swear under oath before an official authorized to administer oaths.

However, in each case the officer signed and filed another document, titled "Verification of Certification," which stated:

"Under penalties as provided by law pursuant to Section 1 -- 109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in the 'Warning to Motorist' and the 'Law Enforcement Sworn Report', attached hereto and made a part hereof, are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true."

Each of the defendants filed a petition to rescind the statutory summary suspension. In each case the petition 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. In four of these cases hearings were held before the effective date of the suspensions involved. At the hearings each defendant made an oral motion that the suspension be rescinded because of the absence of a report sworn under oath. In every case the State argued that administration of an oath by a notary public or other official is not required under the Illinois Vehicle Code and that any irregularity can be cured by the officer's swearing to his certification in open court. In each case the trial court granted the defendant's motion and ordered the suspension of driver's license rescinded.

On appeal the State first contends that the defendants waived the issue of the officer's failure to swear to the report under oath because that issue was not raised in the written petitions. Each petition form included a statement at the bottom that the hearing would be limited to the issues listed on the form. However, in each case the issue of failure to file a sworn report was raised by the defendant by oral motion before the presentation of any evidence at trial. The State does not claim to have been prejudiced by the fact that this issue was first raised on the day of trial. Furthermore, there is nothing in the record to indicate that the State objected to the oral motion at the time it was made. Also, the State proceeded to argue the merits of the motion without moving to strike or otherwise challenge the ...


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