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09/08/87 the People of the State of v. Clarence Mcclain

September 8, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

CLARENCE MCCLAIN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

518 N.E.2d 623, 165 Ill. App. 3d 157, 116 Ill. Dec. 1 1987.IL.1299

Appeal from the Circuit Court of Cook County; the Hon. Carl J. Cipolla, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

The State appeals an order of the circuit court of Cook County which rescinded the summary suspension of defendant's driving privileges. The only issue presented on review is whether rescission was warranted under the circumstances herein. We reverse the judgment of the circuit court and remand with directions that the suspension of defendant's driver's license be reinstated for the period of time designated by the applicable statute.

A review of the record discloses that at approximately 3:20 a.m. on March 3, 1986, defendant Clarence McClain was arrested and taken into custody on suspicion of driving under the influence of alcohol. At the police station, the arresting officer, John Ciszewski, read McClain the warnings required by the summary suspension provisions of the Illinois Vehicle Code, which are as follows:

"(c) A person requested to submit to a [sobriety] test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person's privilege to operate a motor vehicle . . .. The person shall be warned by the law enforcement officer that if the person submits to the test . . . and the alcohol concentration in such person's blood or breath is 0.10 or greater, a statutory summary suspension of such person's privilege to operate a motor vehicle . . . will be imposed." (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(c).)

McClain indicated that he understood these rights and consented to a breath analysis test, the results of which indicated a blood-alcohol concentration of 0.14.

Section 11 -- 501.1 then delineates the procedure the law enforcement officer is to follow in order for the driver's license to be summarily suspended:

"(d) If the person refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more, the law enforcement officer shall immediately submit a sworn report to the circuit court of venue and the Secretary of State, certifying that the test or tests was or were requested pursuant to paragraph (a) and the person refused to a test, or tests, or submitted to testing which disclosed an alcohol concentration of 0.10 or more." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(d).)

Upon receipt of the test results, Officer Ciszewski promptly filled out a form entitled "Law Enforcement Sworn Report," which informed McClain that, since his alcohol level was above 0.10, his driver's license would be suspended for a minimum of three months (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-208.1) and that the suspension would take effect on the 46th day following the date the notice of the statutory summary suspension was given. Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(g).

The "Law Enforcement Sworn Report" form which Ciszewski completed contained a statement that the officer did "solemnly, sincerely, and truly declare and affirm" that he had placed McClain under arrest for a violation of section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501), that he had complied with section 11-501.1 by having reasonable grounds to place the suspect under arrest, namely that McClain made an illegal U-turn and had a "medium odor of alcohol on breath," and that he served immediate notice of summary suspension of driving privileges on McClain as required by section 11-501.1(f). Officer Ciszewski signed the report. The form, however, did not have any space for swearing under oath before an official authorized to administer oaths, and Officer Ciszewski did not swear under oath before a notary public or other official to the truthfulness of the contents of the report. A portion of the report was also completed incorrectly; under the respective sections of the form titled "PLACE OF REFUSAL/TEST" and "REF./TEST DATE," Officer Ciszewski penciled in "D.N.A.," based on his mistaken belief that these sections were inapplicable since McClain had consented to the breath test.

In addition to the "Law Enforcement Sworn Report," Officer Ciszewski also completed and signed a form titled "Warning To Motorist," wherein he "solemnly, sincerely, and truly [declared] and [affirmed]" that he gave the warnings to McClain required by section 11 -- 501(c). The record further indicates that, as a supplement to the "Law Enforcement Sworn Report" and the "Warning To Motorist" forms, ...


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