Kalita v. White

• Decision Date: 05 August 2003
• Docket Number: No. 1-01-4140.,1-01-4140.
• Citation: 795 N.E.2d 903,342 Ill. App.3d 796,277 Ill.Dec. 235
• Parties: Andrew J. KALITA, Plaintiff-Appellant, v. Jesse WHITE, Illinois Secretary of State, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

795 N.E.2d 903

342 Ill. App.3d 796

277 Ill.Dec. 235

Andrew J. KALITA, Plaintiff-Appellant, v. Jesse WHITE, Illinois Secretary of State, Defendant-Appellee.

No. 1-01-4140.

Appellate Court of Illinois, First District, Second Division.

August 5, 2003.

Drunken Driving Defense Lawyers, Ltd., Chicago (Elizabeth Butler, of counsel), for Plaintiff-Appellant.

James E. Ryan, Attorney General (John P. Schmidt, of counsel), and Joel D. Bertocchi, Solicitor General, for Defendant-Appellee.

Presiding Justice McBRIDE delivered the opinion of the court:

This appeal stems from the zero tolerance suspension of plaintiff Andrew J. Kalita's driver's license and privileges. Plaintiff was born on April 26, 1981. On August 4, 1999, when plaintiff was 18 years old, he was charged with consumption of an alcoholic beverage by a minor, improper lane use, and failure to possess his driver's license on his person. On August 25, 1999, plaintiff filed a request for a formal hearing to contest the suspension. Plaintiff also filed a notice that on August 30, 1999, he would file his petition to rescind the zero tolerance suspension. Following an administrative hearing, defendant Jesse White, Secretary of State, adopted the recommendations of the hearing officer and denied plaintiff's petition. Plaintiff filed a complaint in the circuit court of Cook County for administrative review. The circuit court affirmed defendant's decision. Plaintiff has appealed, contending that the hearing officer erred in admitting the hearsay evidence of the police officer's reports as substantive evidence. Plaintiff contends further that the hearing officer erred in finding that service of notice of the zero tolerance suspension upon his mother was proper. Finally, plaintiff contends that the hearing officer erred in finding that he refused or failed to complete a breath test.

At the administrative hearing held on October 4, 1999, plaintiff and his mother were the sole witnesses who testified.

Plaintiff testified that on the evening of August 4, 1999, he was on Southwest Highway driving in his lane and was not violating any traffic law when a police officer pulled him over. The officer approached plaintiff's vehicle and said that he had mistaken plaintiff for someone else. The officer cited plaintiff for several traffic violations and for underage consumption of alcohol. Plaintiff testified that he had not consumed any alcoholic beverage prior to driving that night. The traffic citations subsequently were dismissed after the court was informed that the State could not prove its case. When asked, "Now, on that day, did you have an occasion to have the officer give you what is known as a portable breath testing device outside the police station?", plaintiff testified, "I did not take one, no." When asked whether that was inside the police station, plaintiff answered, "Yes." When asked, "I'm talking about outside the police station; is that correct?", plaintiff answered, "Yes." When asked, "And did you take that test?", plaintiff answered, "Yes." Plaintiff testified that the officer then said that he thought the machine outside was broken, based upon the results, and that he had no way of obtaining a proper result because the machine had been broken.

Plaintiff testified further that the police officer then took him to the police station. Inside the police station, the police officer said that the breath-testing device in the station was not working and that he was unable to obtain a complete result because the machine was not functioning that night. The officer then allowed plaintiff to place a telephone call, and plaintiff's mother came and posted bond for his release. Plaintiff was held on a bench while he waited for his mother to arrive. Plaintiff believed that his mother gave the bond money to the sergeant, who was not the officer who had arrested him. Plaintiff believed that his mother was then handed some documents. When asked whether the first time that plaintiff had seen "Petitioner's Exhibit No. 3" was after his mother had received it, plaintiff testified, "Yes."¹ Plaintiff testified that the document was never served on him and was never read to him. Plaintiff believed that petitioner's exhibit No. 4, the zero tolerance suspension, was another one of the documents that was given to his mother by someone other than the police officer. At the time that plaintiff received the document from his mother, the document had never been read to him. Neither of the two documents had been read to plaintiff during the course of the evening, and the documents were only given to his mother at the end of the evening. Plaintiff did not drink anything between midnight and 2 a.m., he had nothing alcoholic to drink, and he does not drink alcoholic beverages.

During cross-examination by defendant's attorney, plaintiff testified that he took a portable breath test at the scene. The officer did not indicate whether the result was ".9093"; rather, the officer said that it was broken, and he wanted to transport plaintiff to the station to take a test there. At the police station, the police officer did not read to plaintiff the zero tolerance sworn report or warning to a motorist under the age of 21.

Angie Karwowski, plaintiff's mother, testified that on August 4, 1999, she went to the Palos Hills police station and met a desk sergeant to post bond for plaintiff. The desk sergeant presented her with petitioner's exhibit No. 3 (presumably the zero tolerance warning to motorist under 21), petitioner's exhibit No. 4 (the zero tolerance sworn report or suspension), and petitioner's exhibit No. 5 (a bond slip). At no time were those documents read to plaintiff, or handed or delivered to him, in her presence. Plaintiff's mother placed the papers in her bag, took them home, and several days later, gave them to plaintiff. The documents were not served on plaintiff.

During cross-examination, when defendant's attorney asked plaintiff's mother whether plaintiff could have been warned before she arrived at the police station, plaintiff's attorney stipulated that plaintiff's mother had no knowledge of what had transpired before she arrived at the police station.

The record contains various documents. However, some of the documents, such as the abstract of plaintiff's driving record, were not legibly reproduced on the photocopies contained in the record on appeal. Due to poor copy quality, the driving abstract is entirely illegible, one of the traffic citations is largely obscured and barely legible, and the Intoxilyzer results are not legible.

The "Zero Tolerance Warning To Motorist Under 21," which was signed and certified by the arresting officer, Palos Hills police officer Patrick Kobal, reflected that the warning was given to plaintiff at 3 a.m. on August 4, 1999. The warning concerned the various suspensions that would be imposed for first-time offenders and subsequent offenders for refusing or failing to complete all chemical tests requested, or for submitting to a chemical test disclosing an alcohol concentration greater than zero.

The "Zero Tolerance Sworn Report," which also was signed and certified by Officer Kobal, stated that Officer Kobal had stopped plaintiff for improper lane use, and that upon approaching plaintiff, Officer Kobal detected the strong odor of an alcoholic beverage on plaintiff's breath and observed that plaintiff had red, glassy eyes. The report stated that plaintiff's driver's license and privileges would be suspended for a minimum of six months because plaintiff "refused to submit or failed to complete testing." The report reflected that Officer Kobal had "[s]erved immediate notice of Zero Tolerance Suspension of driving privileges on the above named person."

The "Order of Zero Tolerance Suspension" reflected that plaintiff was arrested on August 4, 1999, that the effective date for the suspension of his driver's license was September 19, 1999, that he was a first offender, and that the provisional reinstatement date was March 19, 2000.

The record contains a case report signed by Sergeant Hoefler. The case report designates illegal consumption of alcohol as the offense and 11300 Southwest Highway as the location.

The record also contains an unsigned supplemental report. The supplemental report stated that at 2:32 a.m. on August 4, 1999, while on patrol at 111th Street and Southwest Highway, the officer observed a red Jeep being driven south on Southwest Highway in the curb lane with both tires on the dotted white line. The officer stopped the vehicle and detected the strong odor of an alcoholic beverage on the breath of the driver (plaintiff). The officer also observed that plaintiff had red, glassy eyes. The officer asked plaintiff to take a portable breath test, and plaintiff complied. The result of that test was .093. The officer then arrested plaintiff and transported him to the station for processing. At the station, plaintiff was read the "Zero Tolerance Warning to Motorist Under 21" and refused a breath test. Plaintiff was further processed and was released with a court date on August 30, 1999, after being charged with consumption of alcohol by a minor, improper lane use, and failure to have a driver's license on his person.

A certification of traffic violation disposition from the clerk of the circuit court of Cook County disclosed that citation numbers Y7-759-028 and Y7-759-029 were dismissed. The date of the certification was October 1, 1999, but the date of the dismissal is not visible on the photocopy.

The hearing officer recommended that plaintiff's request to rescind the zero tolerance suspension should be denied because plaintiff did not complete the breath test at the police station. The hearing officer found that the sworn report notifying plaintiff of the suspension was given to plaintiff's mother at the police station instead of plaintiff himself, but that this did not require rescission of the suspension because the...