People v. McClain, 86-1215

• Decision Date: 08 September 1987
• Docket Number: No. 86-1215,86-1215
• Citation: People v. McClain, 518 N.E.2d 623, 165 Ill.App.3d 157 (Ill. App. 1987)
• Court: Appellate Court of Illinois
• Parties: , 116 Ill.Dec. 1 PEOPLE of the State of Illinois, Plaintiff-Appellant. v. Clarence McCLAIN, Defendant-Appellee. First District, Second Division

Page 623

518 N.E.2d 623

165 Ill.App.3d 157, 116 Ill.Dec. 1

PEOPLE of the State of Illinois, Plaintiff-Appellant. v. Clarence McCLAIN, Defendant-Appellee.

No. 86-1215.

Appellate Court of Illinois,

First District, Second Division.

Sept. 8, 1987.

As Modified on Denial of Rehearing

Feb. 2, 1988.

Richard M. Daley, State's Atty., Chicago (Thomas V. Gainer, Jr., James S. Veldman, of counsel), for plaintiff-appellant.

James J. Ahern, Connelly & Ahern, Chicago for defendant-appellee.

MODIFIED ON DENIAL OF REHEARING.

Justice SCARIANO delivered the opinion of the court:

The State appeals an order of the circuit court of Cook County which rescinded the Secretary of State's summary suspension of defendant's driving privileges.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 it 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 Motor 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 declare[d] and affirm[ed]" that he gave the warnings to McClain required by 11-501(c). The record further indicates that, as a supplement to the Law Enforcement Sworn Report and the Warning To Motorist forms, Ciszewski also completed and signed a form styled "Verification of Certification" wherein it was stated that:

"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 'Law Enforcement Sworn Report,' attached hereto and a part hereof, are true and correct * * *."

These three forms were forwarded to the Secretary of State's office and to the court of venue, whereupon the Secretary of State summarily suspended McClain's license effective April 18, 1986.

The Secretary's suspension of McClain's driving privileges was had pursuant to the automatic suspension provision of the Illinois Motor Vehicle Code:

"(e) Upon receipt of the sworn statement of a law enforcement officer submitted under paragraph (d), the Secretary of State shall enter the statutory summary suspension * * * effective as provided in paragraph (g)." Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.1.

On May 1, 1986, McClain filed the instant "Petition To Rescind Statutory Summary Suspension," pursuant to section 2-118.1, which provides in part as follows:

"Upon the notice of statutory suspension served under Section 11-501.1, the person may make a written request to the judicial circuit of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. * * * The scope of the hearing shall be limited to the issues of:

1. Whether the person was placed under arrest for an offense as defined in Section 11-501 * * *;

2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, other drug, or combination thereof;

3. Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person's alcohol or drug concentration; or

4. Whether the person, after being advised by the arresting officer that the privilege to operate a vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more. [sic]

Upon the conclusion of the judicial hearing, the circuit court shall continue or rescind the statutory summary suspension and immediately notify the Secretary of State." Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1

In McClain's petition, which was typed on a form that required him to check the appropriate allegations of impropriety concerning his arrest as provided for in section 2-118.1, he indicated that he was not properly arrested, that the arresting officer did not have reasonable grounds to believe that he was driving under the influence of alcohol, that he was not properly warned by the arresting officer, and that he did not complete the required chemical test or tests.

A rescission hearing was subsequently held on May 8, 1986, and Officer Ciszewski was the only witness to testify. After the officer finished detailing the events which led to McClain's arrest, the defense's entire case consisted of only two arguments which McClain claimed justified rescinding the summary suspension of his license. First, he maintained that the failure of Officer Ciszewski to swear under oath, before a notary public or other official, to the truth of the contents of the Law Enforcement Sworn Report invalidated the subsequent action by the Secretary of State suspending McClain's license. Secondly, he contended that the fact that the officer had improperly filled in a portion of the form, i.e., the sections marked "D.N.A.," also voided the summary suspension.

The State responded that the issues a court may consider in a rescission hearing are rigidly limited by the provisions of Section 2-118.1; that in the context of such a hearing, the Secretary of State's suspension of McClain's license was not reviewable; and that instead, the Secretary of State's action is subject to review only under the strictures of the Administrative Review Act. Ill.Rev.Stat.1985, ch. 110, pars. 3-101 et seq.

The trial court agreed with McClain's arguments and found that the officer should have sworn to these documents under oath before a notary public or other official empowered to administer oaths. The court further noted that the officer had not filled out part of the Law Enforcement Sworn Report properly, in that he had not provided the place or time of the breath test. The trial judge decided that these errors invalidated the Secretary of State's suspension of McClain's license; accordingly, he rescinded the Secretary's action.

OPINION

Initially, it should be noted that...