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09/16/87 the People of the State of v. Robert J. Angelino

September 16, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT J. ANGELINO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

513 N.E.2d 1132, 160 Ill. App. 3d 632, 112 Ill. Dec. 523 1987.IL.1351

Appeal from the Circuit Court of Du Page County; the Hon. Ronald B. Mehling, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This is an appeal by defendant, Robert J. Angelino, from a court order denying defendant's petition to rescind a statutory summary suspension of defendant's driver's license pursuant to section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1). We affirm.

On July 9, 1986, defendant was involved in an automobile accident and was arrested by a city of Naperville police officer for driving his automobile while under the influence of alcohol. Defendant was issued two citations by the arresting officer: one for driving under the influence of alcohol and the other for driving under the influence of alcohol with a blood-alcohol content of .10 or more, both charges in violation of local ordinances. The arresting officer filed a notice of summary suspension of defendant's driver's license as well as a law enforcement report. The law enforcement report is a standard form. Printed above the area for the arresting officer's signature is the following: "Under penalties as provided by law pursuant to Section 1 -- 109 of the Illinois Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct." Under this is affixed the signature of the arresting officer, Gary Peterson.

At a hearing to rescind the statutory summary suspension of defendant's driver's license, Officer Peterson testified that at about 1:16 a.m. on July 9, 1986, he was called by the officer on the scene to an accident on Ogden Avenue. Officer Peterson further testified that when he arrived on the scene, defendant was outside his vehicle, and the vehicle itself was in the westbound lane of Ogden Avenue facing east across the two lanes. At the time, defendant was talking with slurred speech. Officer Peterson stated that he and another officer administered field tests to defendant and that during one of these tests, a heel to toe test, defendant "kind of [stumbled]" and "staggered a little bit." Officer Peterson also testified that during a leg lift test, defendant could not stay up for the length of the test. Officer Peterson further stated that he read defendant the motorist warning verbatim, that defendant decided to take a breathalyzer test, and that the result of that test was more than .10.

On cross-examination, Officer Peterson testified he did not see defendant driving the vehicle, and that he issued no other tickets to defendant except the two for driving under the influence.

Defendant testified that he was driving in an unfamiliar area, the lighting was poor, a streetlight in the area of the accident was inoperative, and at the time of the accident, it was rainy and the road was wet. Defendant also testified that he told the officer that he must have missed the turn in the road, and, at the time of the accident, he hit his head.

At the close of the hearing, the trial court ruled against defendant and denied the petition to rescind. Defendant thereafter filed a motion for reconsideration of the trial court's order denying the petition to rescind the statutory summary suspension. The motion to reconsider was denied. Defendant then filed a timely notice of appeal.

Defendant first contends that the trial court erroneously placed the burden of proof on defendant to present evidence in the petition to rescind the statutory summary suspension. We disagree. As we have previously held, at a hearing to rescind a summary suspension, the burden of proof is upon the defendant. People v. Griffith (1987), 153 Ill. App. 3d 856, 861.

Defendant next contends that the arresting officer did not submit a properly sworn-to report certifying that defendant refused testing or that testing disclosed an unpermitted concentration of alcohol. Defendant argues that the law enforcement report was not sworn to as required by the section 11-501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(d)) but, rather, was certified pursuant to section 1-109 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1-109). Defendant, thus, contends that the report was invalid and could not serve to support a suspension. Defendant contends that failure to submit a report that was properly sworn to is grounds to rescind the statutory summary suspension entered by the Illinois Secretary of State. In response, the State contends that this issue has been waived because it was not raised prior to appeal. In the alternative, the State contends that a report certified under section 1-109 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1-109) is "sworn" to for purposes of section 11-501.1(d) of the ...


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