Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 93-DT-66203. Honorable Vincent Cerri Judge, Presiding.
Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. Mccuskey, Justice
The opinion of the court was delivered by: Slater
PRESIDING JUSTICE SLATER delivered the opinion of the court:
The State appeals from an order of the circuit court of Will County which rescinded the statutory summary suspension of defendant Joseph Palacios's driving privileges. Palacios has not filed an appellee's brief. However, as the record is simple and the claimed error is such that this court can reach a decision without the aid of an appellee's brief, we shall do so. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.
The record shows that on December 12, 1993, the defendant was charged with, among other things, driving under the influence of alcohol. The arresting officer filled out and filed a sworn report with the Secretary of State's office (the Secretary). The bottom of the sworn report form read as follows:
"Pursuant to Section 11-501.1 of the Illinois Vehicle Code I have:
Served immediate notice of summary suspension of driving privileges on the above named person.
Given notice of summary suspension of driving privileges to the above named person by depositing in the United States mail said notice in an envelope with the postage prepaid addressed to said person at the address as shown on the Uniform Traffic Ticket."
Neither of the above boxes was checked off. Additionally, the arresting officer also left blank the spaces where he was supposed to indicate the month, day, and year in which the notice of summary suspension was given.
Nevertheless, the Secretary summarily suspended the defendant's driver's license effective January 27, 1994. On February 7, 1994, following arguments by counsel, the circuit court rescinded the summary suspension. In so doing, the court noted that the sworn report did not indicate when or how notice of the summary suspension was served upon the defendant. The court concluded that the failure to include this information was jurisdictional and granted the defendant's motion to dismiss.
On appeal, the State argues it was improper for the circuit court to rescind the summary suspension prior to holding a statutory summary suspension hearing. The State contends that it "may well have been able to [cure deficiencies in the sworn report] by testimony or amendment at the statutory summary suspension hearing." In support of this contention, the State suggests that the defendant's actions in contesting the summary suspension evidenced that he had actual notice of the suspension.
We begin by noting that apart from the defendant's diligence in protecting his rights by contesting the suspension, there is nothing in the record to indicate that the arresting officer ever actually gave the defendant notice of the summary suspension. However, we need not reach the issue of whether actual notice was given, since we agree with the circuit court that the sworn report was defective because it failed to indicate the date upon which notice was given.
The officer's sworn report plays a unique role in a summary suspension hearing. Like a complaint in a civil case, it is the jurisdictional step which starts the proceeding. People v. Cooper (1988), 174 ...