People v. Ullrich, 1-00-1855.

• Court: United States Appellate Court of Illinois
• Citation: 262 Ill.Dec. 951,328 Ill. App.3d 811,767 N.E.2d 411
• Docket Number: No. 1-00-1855.,1-00-1855.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David ULLRICH, Defendant-Appellant.
• Decision Date: 15 March 2002

767 N.E.2d 411
328 Ill. App.3d 811
262 Ill.Dec. 951

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
David ULLRICH, Defendant-Appellant

No. 1-00-1855.

Appellate Court of Illinois, First District, Fifth Division.

March 15, 2002.

767 N.E.2d 413

Peter A. Regulski, Chicago, for Appellant

Richard A. Devine, State's Attorney, County of Cook, Renee Goldfarb, Jon J. Walters, Chicago, Sanjay H. Patel, for Appellee.

Presiding Justice CAMPBELL delivered the opinion of the court.

On February 20, 2000, defendant David Ullrich was arrested and charged with (among other things) driving under the influence of alcohol. See 625 ILCS 5/11-501 (West 2000). The arresting officer served Ullrich with a notice of a statutory summary suspension of his driver's license, stating that Ullrich refused to submit to chemical testing. Ullrich appeals an order of the circuit court of Cook County denying his Petition to Rescind the Statutory Summary Suspension.

The record discloses that Ullrich filed his petition on February 24, 2000, alleging that the police lacked reasonable grounds for arrest and failed to warn him of the consequences of refusing to submit to testing.¹ Ullrich answered ready on March 14, 2000, but the trial court had not received a legally required confirmation of the suspension from the Secretary of State. The case then was continued at the request of the State, keyed to the arresting officer's schedule.

On March 23, 2000, no police witnesses appeared. The transcript of proceedings contains a statement by the prosecutor that "we did notify our officers, and if they are called to 26th and California, they have to go." The State elected to proceed, based on the court's review of the law enforcement officer's own official reports. The record does not show that the trial court or the State informed Ullrich that he could subpoena the police officer or officers. Tina Moreth, Ullrich's girlfriend, testified that on the night in question, she had been driving the automobile and had the keys thereto in her possession. Moreth testified that at approximately 3 a.m., after meeting with friends, she and Ullrich had gone back to the car to get money for breakfast. Moreth stated that two Chicago Police Officers stopped them before they could even touch the car. Moreth argued with the officers. According to Moreth, the police cursed at her, told her to shut up and threatened to arrest her. Moreth stated that she walked away, with the keys to Ullrich's car.

Ullrich testified that after Moreth left, the police asked him who owned the car. According to Ullrich, when he replied that he owned the car, the police immediately spun him around, placed him in handcuffs and arrested him. Ullrich stated that he was not given any statutory warnings prior to his arrest.

Ullrich testified that the police took him to the police station at Grand and Central Avenues, where he was asked to blow into a machine. Ullrich again stated that he was not given any statutory warnings regarding the test. According to Ullrich, he

767 N.E.2d 414

refused to take a breath test because he had not been driving. After he was released from the police station, Ullrich retrieved his automobile from the Chicago Auto Pound. Ullrich stated that he had a spare set of keys underneath his car seat

Ullrich rested. The State moved for a directed finding. The trial court denied the State's motion, finding that Ullrich had presented a prima facie case for rescission. The State then offered into evidence an alcohol influence report, a field report, an arrest report, and the arresting officer's sworn report regarding Ullrich. The trial court accepted these reports, over Ullrich's objections.

The officer's sworn report stated that Ullrich was stopped after he pulled out of a driveway without activating his headlights and almost struck another vehicle. The sworn report stated that Ullrich had a strong odor of alcohol on his breath, glassy bloodshot eyes, and a flushed face. An accompanying "Warning to the Motorist" form stated that the motorist's license would be suspended if he refused to submit to all chemical tests requested; this form, like the sworn report, purported to be certified under section 1-109 of the Illinois Code of Civil Procedure (735 ILCS 5/1-109 (West 2000)). Both the sworn report and the warning bear the last name of the officer and an "identifying number."

The officer's unsworn alcohol influence report contained much of the same information as was contained in the sworn report. The unsworn alcohol influence report added that Ullrich was observed wobbling and staggering. The unsworn alcohol influence report also quoted Ullrich as stating, "you didn't catch me driving, my girlfriend was driving," and "I don't want to blow, because if their's [sic] evidence I'll win just like 3 years ago."

The officer's unsworn field report expressly states that the police observed Ullrich "driving with the motor running" and the keys in the ignition. The officer's unsworn arrest report contains similar information about the incident.

Following closing arguments, the trial court denied Ullrich's petition. The trial court stated that the testimony of Ullrich and Ms. Moreth had "a number of rather troubling elements in it." The trial court also questioned the consistency of their testimony. Yet the trial court noted that the recitations in the police reports were such that one might expect that Ullrich would have been ticketed for some infraction arising from the near-collision described in the reports.

On April 21, 2000, Ullrich filed a motion to reconsider. The trial court denied Ullrich's motion on May 10, 2000. Ullrich then filed a timely Notice of Appeal to this court.

On appeal, Ullrich primarily argues that the trial court's consideration of unsworn police reports and hearsay contained in the officer's sworn reports violated Ullrich's right to due process of law. Ullrich also argues that the trial court improperly rejected his evidence and that the decision was against the manifest weight of the evidence. These latter arguments are related to the former arguments, insofar as they are affected by the consideration of the police reports.

Section 2-118.1(b) of the Illinois Vehicle Code, which sets forth the procedure for seeking to rescind a statutory summary suspension of a driver's license, provides as follows:

"(b) Within 90 days after the notice of statutory summary suspension served under Section 11-501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person

767 N.E.2d 415

seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11-501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request, or process shall not stay or delay the statutory summary suspension. The hearings shall proceed in the court in the same manner as in other civil proceedings.

The hearing may be conducted upon a review of the law enforcement officer's own official reports; provided however, that the person may subpoena the officer. Failure of the officer to answer the subpoena shall be considered grounds for a continuance if in the court's discretion the continuance is appropriate.

The scope of the hearing shall be limited to the issues of:

* * *

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

3. Whether the person, after being advised by the 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 the test or tests to determine the person's alcohol or drug concentration * * *." 625 ILCS 5/2-118.1(b) (West 2000).

"It is clear that the due process clause applies to the deprivation of a driver's license by the State." People v. Orth, 124 Ill.2d 326, 334, 125 Ill.Dec. 182, 530 N.E.2d 210, 214 (1988), citing Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94 (1971). The purpose of section 2-118.1 is to provide a motorist with due process of law. People v. Holmes, 268 Ill.App.3d 802, 806, 205 Ill. Dec. 785, 644 N.E.2d 1, 3 (1994).

As noted above, section 2-118.1 hearings are judicial, proceeding in the same manner as other civil proceedings, but they also serve as an "administrative device." 625 ILCS 5/2-118.1(b) (West 2000); People v. Moore, 138 Ill.2d 162, 167-68, 149 Ill. Dec. 278, 561 N.E.2d 648, 650-51 (1990). Where state action seriously injures a person, and the reasonableness of the action depends on factual findings, especially when based on testimony by people whose memory might be faulty, or who might be perjurers or motivated by malice, vindictiveness, prejudice, or jealousy, due process requires confrontation and cross-examination, not only in criminal cases, but also in all types of cases where administrative actions are under scrutiny. See Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287, 300 (1970). The requirements of due process in a particular case vary, depending upon: (1) the significance of the private interest affected by the official action; (2) the risk of the erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and (3) the significance of the State interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural safeguards would impose. E.g., Mackey v. Montrym, 443 U.S. 1, 11, 61 L.Ed.2d 321,...