## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Pollitt, 2011 IL App (2d) 091247

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. ROBERT J. P OL L I TT, Def endant- Appellee

.

District & N o. Second District Docke t No. 2-09-1247

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed Fe bruar y 22, 2011

November

8, 2011 November

8, 2011

Held (Note : This syl lab us

con st it ut e s no par t of the opi nio n of the cour t but has bee n pre

par ed by th e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a DUI prosec ution, the trial court proper ly g rante d defe ndant’s petition
to resc ind the statutory summary suspension of his driving privileg es and denie d t h e State’s motion to rec onsider, since the brea th test was administered September 3, but the office r’s s worn repor t indicated that
t h e n o tice of statutory summary suspension was given on September 2
, the result was that defe ndant’s license was suspended one day early
, and the office r did not mark the box to indic ate that the notice was serve d immediately afte r defe ndant failed the breath test, the State did not move to amend the sworn repor t befor e or at t h e h ea ri ng on the petition to

resc ind, and the postjudgment motion t o am en d was not made to make
t h e re p ort confor

m to the proofs, espec ially when the office r did n o t testify

.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 09-DT- 3746; the Hon. Cary

B. Pierc e, Judge, pr esiding

.J udg ment Affir med.

Counsel on Appea l J o s eph E. Birke tt, State’s Attorney
, of Wheaton (L isa A. Hoffman
, Assistant State’s Attorney
, and L aw renc e M. Ba uer and Gre g ory L

. S l o vace k, both of State’s Attorney s Appellate Prosecutor’ s Offic e, o f counsel), f

or the People.

Robert F. S t ring ini and Mi chae l J

. Gar vey , both of S tring ini & Garve y , P.C., of Addison, for appe llee.

Panel JU ST I CE SCHOSTOK delivere d the judgme nt of the court, with o p in io n

. J ustices McL are n and Hutchinson concur r e d in th e ju d gment and opinion.

OP INION

¶ 1 T h e S t at e appea ls from the October 16, 2009, order of the circ uit court o f Du P age County that g rante d the petition of the defe ndant, Rob ert Polli tt, to resc ind the statutory summary suspension of his driving privileg es. The State also appea ls from the November 10, 2009, order

of the c ircuit court that de nied its moti on to rec onsider. We af firm. ¶ 2 On September 2, 2009, at 10: 25 p.m., the defendant was arr ested for driving under the influence (DUI ) (625 I L CS 5/11-501(a)(1)
, (a) (2) (West 2006) ), speeding (625 I L CS 5/11- 601(b) (West 2006)), and failure to signa l when require d (625 I L CS 5/11-804 (West 2006)). T h e defe ndant was transporte d to the Addison police depar tment. Also on September 2, 2009, at 11: 2 9 p.m., the arr esting office r war ned the defe ndant about the conseque nces of submitt ing to a blood, br eath, or urine chemica l test. 625 I L CS 5/11-501.1(c) (West 2006). The defe ndant agree d to submit to a breath test. The brea th test rea dout ticket indicated that the defe ndant took the test at 12:11 a.m. o n S ep t em b er 3
, 2009, and that he had a blood alcohol content of 0.144

. The office r subsequently completed a document entitled “law enfor ceme nt sworn repor

t.” The repor

t indicated that the defe ndant submitt ed to a breath test

on September 3, 2009, but t h at the defe ndant was g iven notice of the statutory summary suspension of his driver’ s license on September 2, 2009. The office r submitt ed a copy of the

sworn repor

t to the Se cr etar

y of State’s office and the cler k of the circ uit court. The defe ndant rec eived n o t ice from the Secre tary of State that the suspension would beg in October 18, 2009. ¶ 3 On September 11, 2009, the defe ndant filed a petition to resc ind the statutory summary suspension of his driving privileg es, challeng ing only whether the office r had a proper basis
to stop and investiga

te him for a DUI violation. The petition did not indicate that the

-2-defe ndant was ch all eng ing the suspension on the basis of defe cts in the sworn repor t. On October 2, 2009, the parties appea red in c ourt and, at the defe ndant’s reque st, the case was continued to Octobe r 16, 2009. ¶ 4 On October 16, 2009, the parties appea red for a hearing on the defe ndant’s petition. The defe ndant noted that althoug h the breath te st w as administered at 12:11 a .m. on September 3, 2009, the office r’s sworn repor t indicated that the notice of statutory summary suspension
was g iven on September 2, 2009. The defenda nt further noted that, pursuant to the I llinois Vehicle Code (the Code) (625 I L CS 5/11-501. 1 ( g ) ( We s t 2 0 0 6 ) )
, h is suspension was require d “to take eff

ect on the 46th day following the date the notice of the s t at u t o ry s u mmary suspension wa s g iven.” The defe ndant argued that, beca use of that err or, the Secre tary of State was suspending his license a day ear l y , namely
, as of October 18, 2009, rathe r than October 19, 2009. The de fenda nt held a commercial driver’s li cense (CDL ) and he argued that starti n g h i s s uspension a day early was a violation of his rig ht to due proce ss. The defe ndant also noted that the office r did not mark the box to indicate that the notice of suspension was ser

ved immediately

upon the def

endant a fter he failed the brea th test. ¶ 5 The State argued that due proce ss require d only that a hearing on the defe ndant’s petition
to resc ind be held within 30 day s of the filing of his petition. The defe ndant was aff orded an opportunity for such a hearing

. The S tate argued t h at t h er e was no case law to support the proposition that starting a suspension 45 day s, rathe r than 46 day s, afte r the requisite notice entitled a defe ndant to a resc ission. The State also arg ued that “i n re gar d s to the box not being chec ked, I will have the trooper come in here and testify that he persona lly serve d the defe ndant.” How ever , the State neve r ca lled the trooper to testify

. ¶ 6 Ultimately , the trial cour t found as follows: “the conseque nces of this scrivene r’s err or or whateve r is n o t curable by any other mecha nism but the Court using its equitable power s to resc ind. I mean, it probably technical l y i s ag ainst the i ntent of t he legislature

. Howeve r, i t is clea rly in violation of the 46 day s. There is no other relief that can be g iven this defe ndant civilly ag ainst the Secre tary of State or the State Police or the prosec ut o rs beca use of the 24[-hour] loss of his privileg e to drive. There fore
, I find it to be a critica l mistake that cannot be amende d, and there ’s no other relief available for the defe ndant to cure this, so I ’m g oing to resc ind it.” There afte r, the State reque sted one wee k to file a motion to rec onsider. The tri al co u rt g rante d that reque st but noted that it was goingto enter the resc ission. ¶ 7 On October 20, 2009, the State filed a motion to rec onsider the trial court’s October 16, 2009, ruling . The State a

rgued that there wer e only four gr ounds upon which a suspe nsion could be resc inded (see 625 I L CS 5/2-118.1(b) (West 2006)) and that a suspension starting 45 day s afte r notice was g iven was not one of those rea sons. The State argued that the
purpose of the 46-day delay was to g ive a driver an opportunity to s t o p an i m p ro per suspension from taking eff ect. The State argued that the defe ndant had that opportunity
, as he had filed a petition to resc ind a nd had two opportunities for hearing on the petition. The State further argued that misda t i n g a sworn repor t was a defe ct that could be cure d by

-3-amending the sworn repor t. Acc ording ly
, the Stat e reque sted that the trial court vacate its order resc ind i n g t h e defe ndant’s summary suspension and immediately hold a suspension hearing, at which time the State could amend the repor t or, alternatively
, reope n the proofs. In response , the defe ndant argued that the sworn repor t w as fata lly defe ctive, that the State

never attempted to amend the repor t, and that the re scission order should not be va cate d. ¶ 8 On November 10, 2009, a h ea ri ng was held on the State’s motion to rec onsider. The defe ndant argued that his pe tition to resc ind w as filed on September 11, 2009, and that the State never made a motion to amend the sworn repor t. The defe ndant further argued that case law supported a resc ission of a suspens i o n b as ed o n a defe ctive sworn repor t. The State argued that there was no case law providi n g that a defe ndant is entitled to 46 day s’ notice befor e his suspension beg ins. The State argued that a defe ndant is entitled only to a hearing befor e t h e s u s pension takes eff ect. The State also argued that it was entitled to amend the

sworn re port. Ultimately , the trial cour t found as follows:
“F irst of all, this is a motion to rec onsider, and I ’m not inclined to allow the State to amend any pleading s on a motion to rec onsider which should have been done at the orig inal hearing. So I ’m g onna deny

the motion. I t stay s resc inded.” There afte r, the State filed a timely notice of a

ppeal. ¶ 9 On appea l, the State arg ues that the trial court err ed in g ranting the defe ndant’s petition
to resc ind and in denying its motion to rec onsider. In addition to raising the same arguments that wer e made befor e the trial court, the State argues that a defe ndant’s relianc e on “hypertechnica lities” as a basis to resc ind a suspension violates the state’s public policy to deter and

remove drug -impaired drivers from the roadw ay s. Additionally
, the State argues that the trial court should have g rante d its mot ion to reconsider and allowe d it an opportunity to amend the sworn r eport. ¶ 10 Section 11-501.1(a ) of the C ode pro v i d es t hat “[ a]ny person who drives or is in actual phy sical control of a motor vehicle upon the public highw ay s of this State shall be deeme d
to have g iven consent *** to a chemica l test or tests of blood, breath, or urine for the purpose of deter mining the content of

alcohol *** in the per son’s blood if arr ested *** for [DUI ].” 625 I L CS 5/11-501.1(a) (West 2008). A motorist who is asked to submit to such testing shall be warned that his driving privileg es will be summarily suspended if he (1) refuse s testing

or (2) submits to testing that reve als that the motorist’s blood alcohol level is in excess of the leg al limit

. 625 I L CS 5/11-501.1(c ) (West 2008)

. I f testing reve als a blood a lcohol level in

ex cess of the leg al limit
, “the law enfor ceme nt office r shall immediately submit a swo rn repor t to the circ uit court of venue and the Secre tary of State, cer tifying that the test *** was *** reque sted under para g raph (a) and the *** testing *** disclosed an alcohol conce ntration of 0.08 or more .” 625 I L CS 5/ 11-501.1(d) (West 2008). ¶ 11 Fur

thermore
, under section 11-501.1(e ), the Secre tary of State ’s o ff i ce s h al l enter

a summary suspension “[u] pon rec eipt of the sworn repor t of a law enfor ceme nt office r.” 625 I L CS 5/11- 5 0 1

. 1 (e ) (West 2008). Section 11-501.1(f ) require s the office r submitt ing the

sworn repor

t to “ser ve immediate notice of the statutory summary suspension on the person.”

-4-625 I L CS 5/11-501. 1 (f ) (W es t 2008). Section 11-501.1(g ) provides, in turn, that the
summary suspension “shall t ake effe ct on the 46th day followingthe date the notice of the
statu t o ry s ummary suspension was g iven to the person.” 625 I L CS 5/11-501.1(g ) (West 2008). ¶ 12 I f a motorist ’s drivi ng privileg es are sum marily suspended, the motorist may reque st a judicial hearing seeking resc ission of that suspension. 625 I L CS 5/2-118.1 (West 2008). The
scope of that hearing is limit ed to the issues of wh ether (1) the motorist was place d under

arr est for D UI ; (2) the a

rre sting off

icer had rea sonable g rounds to be lieve that the motorist was driving under the i nfluenc e; (3) the m otorist, afte r proper warning s, ref used to submit
to testing; and (4) the motorist, afte r proper war nings, submitt ed to t es t i n g and the test

reve aled a blood alcohol conce ntration of 0.08 or g reater. 625 I L CS 5/2-118.1(b) (West 2008). However, the trial court may also consider defe cts in the office r’s sworn repor t. People v. Badoud
, 122 I ll. 2d 50, 54 (1988). “Upon t he conclusio n of t he judi cial hearing
, the circ uit court shall sustain or resc ind the statutory summary suspension and immediately notify the Secr etar

y of State.” 625 I L CS 5/ 2-118.1(b) (West 2008). ¶ 13 A hearing on a petition to resc ind a statutory summary suspension of driving privileg es is a civil proce eding

. People v. W iley
, 333 I ll. App. 3d 861, 863 (2002). The defe ndant bear s the burden of proof and, if he or she establishes a prima facie case for resc ission, the burden then shifts to the State to come forwa rd with evidenc e justifying the s u s p en s i o n

. Id. In considering an appea l of a ruling on a petition to resc ind, a court of revie w defe rs to the trial court’s fac tual finding s and considers de n o vo wh et h er the petition to resc ind should be
g rante d. People v . Hack

er , 388 I ll. App. 3d 346, 350 (2009). ¶ 14 In deter

mining whether the trial court proper ly g rante d th e d e f e n d a nt’ s p e tition to rescind,

we find People v. Cooper
, 174 I ll. App. 3d 500 (1988), instructive. In that case , Cooper was

arr ested for DUI on April 11, 1987, at 11 p.m. Id. at 501. Cooper agree d to take a breath test, which revea led t hat he had a blood alcohol content of 0.16. Id. Cooper was notified of hi s st at u t o ry summary suspension and the police office r submitt ed a sworn repor t to the Secre tary of State’s office and the cler k of the circ uit court. Id. at 501-02. The sworn repor t

was signe d by the arr esting office r and dated April 12, 1987. Id. at 502. The repor t indicated that the breath test was taken on April 12, 1987, at 1: 11 a.m. Id. at 501. The report further indicated that Cooper was notified of his statutory summary suspension on April 11, 1987. Id. at 502. The defe ndant rec eived notice from the Secre tary of State th at his suspension would beg in May

27, 1987. Id. ¶ 15 Cooper filed a petition to resc ind his statutory summary suspension, which the trial court denied. Id. at 501. On appea l, the revie wing court held that an office r’s sworn repor t “play s a unique role” in a st atutory summary suspension proce eding

. Id. at 502. “It is simil ar to a complaint in a civil case , the jurisdictional step which starts the proce eding .” Id. at 502. As such, the re viewingcourt he ld as follows:
“In the instant case , the repor t shows on its fac e that notice of the suspension was g iven befor e the defe ndant completed the breathaly zer test. The notice defe ndant rec eived from the Secre tary of State’s office stated that the suspension would beg in 46 day s from April

-5-11, rathe r than April 12, when the breath test w as administered. Since the sworn repor t is mandatory in order for the suspension to take eff ect, we must reve rse the judgme nt of the circ uit court continuing the suspension and rema nd the cause to t h at court.” Id. at 503. The revie wing court noted that the State had never attempted to amend the repor t to corr ect the alleg ed scrivener ’s er

ror. Id. at 502. ¶ 16 Simi larly
, in People v. Palacios
, 2 6 6 I l l

. Ap p

. 3 d 3 4 1
, 342 (1994), the trial court

resc inded Palacios’s statutory summary suspension beca use the sworn repor

t did not indicate the date the notice of suspension was g iven to Palacios and the fa ilure to include that information was jurisdictional. The State appea led, but the revie wing court aff irmed the trial court’s decision. Id. at 344. The revie wing court noted that, in the ab sence of a date indicating when the notice of suspension was g iven, the Secre tary of State would be unable
to impose the suspension 46 day s later (625 I L CS 5/11-501.1(g ) (We s t 2 008)). Id. at 343. T h e reviewing court further noted that there was no indication in the rec ord that t h e S t at e attempted to amend the sworn repor t pri o r to issuance of the suspension. Id. at 344. The revie wing court held that the trial court properly resc inded the summary suspension beca use the sworn r eport fa iled to establish on its face the validity of the suspension. Id. ¶ 17 Ba sed on the holdings in Cooper and Palacios
, the trial court did not err in g ranting the defe ndant’s petition to resc ind. T he office r’s sworn repor t f ailed to establish on its fac e the validity of the suspension beca use, as in Cooper
, the repor t indica ted that notice was g iven befor e the defe ndant completed th e b re ath test. Fur thermore
, beca

use the sworn repor

t indicated that notice was g iven on September 2, 2 0 0 9
, a d ay prior to the breath test, the Secre tary of State com m en ced the suspension 46 day s from September 2 rathe r than September 3, the actua l date that t h e d efendant was presumably g iven notice of the suspension. Finally
, at t h e h ea ri ng , the State did not move to amend the sworn repor t. Acc ording ly , the trial cour t did not err in grantingthe def endant’ s petition to rescind. ¶ 18 The State’s ne x t contention on appea l is that the t rial court err ed in denying its motion
to rec onsider. The denial of a motion to rec onsider based only on the trial court’s application of exis t i n g l aw is revie wed de novo

. Compton v. Country Mutual Insurance Co.
, 382 I ll. App. 3d 323, 330 (2008). “Howe ver, wher e the denial of a motion to rec onsider is based on

new matters, such as additional fac ts or new arguments or leg al theories that wer e not prese nted during the course of the proce eding s leading to the issuance of the order being challeng ed, the abuse of discretion st an d ar d appli es.” Id. In the present case , in moving to

rec onsider, the State reque sted an opportunity to either amend the sworn repor t or reope n the proofs. Acc ording ly
, beca use the denial of the motion to rec onsider was based on a reque st to admit additional fac ts, we must revie w i t for an abuse of discretion. Id. “I n deter mining whether the trial court abused its discretion, ‘the question is not whether the revie wing court agree s with the trial court, but wheth er t h e trial court acte d arbitra rily without the

em p l o y ment of conscie ntious judgme nt or, in view of all the circ umstances, exceede d t h e bounds of rea son and ignor ed re cognized principles of law so that substantial prejudice resulted.’ ” In re Marriage of Gowdy
, 352 I ll. App. 3d 301, 307 (2004) (quoting In re Marriage of Aud, 142 I ll. App. 3d 320, 326 (1986)).

-6-¶ 19 In the prese nt case , we cannot say that the trial court abused its discretion in denying the

State’s motion to rec onsider. We acknow ledg e that defe cts in a n office r’s sworn repor

t can usually be correc ted by amendmen t

. See Badoud
, 122 I ll. 2d at 59; People v. Fint
, 183 I ll. App. 3d 284, 286 (1989). Howeve r, it is g ener ally contemplated that such defe cts would be

corr ecte d either befor e or at the suspension hearing. Badoud
, 122 I ll. 2d at 61. Her e, the State did not move to amend the re port befor e or at t he hearing
, but moved t o amend it after the judgme nt. In a summary suspension p ro ce ed i n g, the sworn repor t is eff ectively the complaint. Id. at 54. After judgme nt, a complaint may be amended only to co n fo rm to the proofs. Mandel v. Hernande z , 404 I ll. App. 3d 701, 707 (2010). Her e, the off i ce r d i d n ot testify
, so the re quest to amend was not to make the sworn repor t confor m to any proofs. Acc ording ly
, based on the posture from which the State attempted to amend the sworn repor t

or reope n the proofs, we cannot say that the trial court’s denial of that reque st exceede d the bounds of re ason or ignored r ecognized principles of law. ¶ 20 Fo r t h e fore g oing rea sons, we aff irm the judgme nt of the trial co u rt gra n t i n g t h e defe ndant’s petition to rescind a nd denying the State’s motion to reconsider

.

¶ 21 Affir

med.

-7-