People v. PollittPeople v. Pollitt
¶ 1 The State appeals from the October 16, 2009, order of the circuit court of Du Page County that granted the petition of the defendant, Robert Pollitt, to rescind the statutory summary suspension of his driving privileges. The State also appeals from the November 10, 2009, order of the circuit court that denied its motion to reconsider. We affirm.
¶ 2 On September 2, 2009, at 10:25 p.m., the defendant was arrested for driving under the influence (DUI) (
¶ 3 On September 11, 2009, the defendant filed a petition to rescind the statutory summary suspension of his driving privileges, challenging only whether the officer had a proper basis to stop and investigate him for a DUI violation. The petition did not indicate that the defendant was challenging the suspension on the basis of defects in the sworn report. On October 2, 2009, the parties appeared in court and, at the defendant‘s request, the case was continued to October 16, 2009.
¶ 4 On October 16, 2009, the parties appeared for a hearing on the defendant‘s petition. The defendant noted that although the breath test was administered at 12:11 a.m. on September 3, 2009, the officer‘s sworn report indicated that the notice of statutory summary suspension was given on September 2, 2009. The defendant further noted that, pursuant to the Illinois Vehicle Code (the Code) (
¶ 5 The State argued that due process required only that a hearing on the defendant‘s
¶ 6 Ultimately, the trial court found as follows:
“the consequences of this scrivener‘s error or whatever is not curable by any other mechanism but the Court using its equitable powers to rescind. I mean, it probably technically is against the intent of the legislature. However, it is clearly in violation of the 46 days.
There is no other relief that can be given this defendant civilly against the Secretary of State or the State Police or the prosecutors because of the 24[-hour] loss of his privilege to drive. Therefore, I find it to be a critical mistake that cannot be amended, and there‘s no other relief available for the defendant to cure this, so I‘m going to rescind it.”
Thereafter, the State requested one week to file a motion to reconsider. The trial court granted that request but noted that it was going to enter the rescission.
¶ 7 On October 20, 2009, the State filed a motion to reconsider the trial court‘s October 16, 2009, ruling. The State argued that there were only four grounds upon which a suspension could be rescinded (see
¶ 8 On November 10, 2009, a hearing was held on the State‘s motion to reconsider. The defendant argued that his petition to rescind was filed on September 11, 2009, and that the State never made a motion to amend the sworn report. The defendant further argued that case law supported a rescission of a suspension based on a defective sworn report. The State argued that there was no case law providing that a defendant is entitled to 46 days’ notice before his suspension begins. The State argued that a defendant is entitled only to a hearing before the suspension takes effect. The State also argued that it was entitled to amend the sworn report. Ultimately, the trial court found as follows:
“First of all, this is a motion to reconsider, and I‘m not inclined to allow the State to amend any pleadings on a motion to reconsider which should have been done at the original hearing.
So I‘m gonna deny the motion. It stays rescinded.”
Thereafter, the State filed a timely notice of appeal.
¶ 10 Section 11-501.1(a) of the Code provides that “[a]ny person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent * * * to a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol * * * in the person‘s blood if arrested * * * for [DUI].”
¶ 11 Furthermore, under section 11-501.1(e), the Secretary of State‘s office shall enter a summary suspension “[u]pon receipt of the sworn report of a law enforcement officer.”
¶ 12 If a motorist‘s driving privileges are summarily suspended, the motorist may request a judicial hearing seeking rescission of that suspension.
¶ 13 A hearing on a petition to rescind a statutory summary suspension of driving privileges is a civil proceeding. People v. Wiley, 333 Ill.App.3d 861, 863, 267 Ill.Dec. 484, 776 N.E.2d 856 (2002). The defendant bears the burden of proof and, if he or she establishes a prima facie case for rescission, the burden then shifts to the State to come forward with evidence
¶ 14 In determining whether the trial court properly granted the defendant‘s petition to rescind, we find People v. Cooper, 174 Ill.App.3d 500, 124 Ill.Dec. 120, 528 N.E.2d 1011 (1988), instructive. In that case, Cooper was arrested for DUI on April 11, 1987, at 11 p.m. Id. at 501, 124 Ill.Dec. 120, 528 N.E.2d 1011. Cooper agreed to take a breath test, which revealed that he had a blood alcohol content of 0.16. Id. Cooper was notified of his statutory summary suspension and the police officer submitted a sworn report to the Secretary of State‘s office and the clerk of the circuit court. Id. at 501-02, 124 Ill. Dec. 120, 528 N.E.2d 1011. The sworn report was signed by the arresting officer and dated April 12, 1987. Id. at 502, 124 Ill.Dec. 120, 528 N.E.2d 1011. The report indicated that the breath test was taken on April 12, 1987, at 1:11 a.m. Id. at 501, 124 Ill.Dec. 120, 528 N.E.2d 1011. The report further indicated that Cooper was notified of his statutory summary suspension on April 11, 1987. Id. at 502, 124 Ill.Dec. 120, 528 N.E.2d 1011. The defendant received notice from the Secretary of State that his suspension would begin May 27, 1987. Id.
¶ 15 Cooper filed a petition to rescind his statutory summary suspension, which the trial court denied. Id. at 501, 124 Ill.Dec. 120, 528 N.E.2d 1011. On appeal, the reviewing court held that an officer‘s sworn report “plays a unique role” in a statutory summary suspension proceeding. Id. at 502, 124 Ill.Dec. 120, 528 N.E.2d 1011. “It is similar to a complaint in a civil case, the jurisdictional step which starts the proceeding.” Id. at 502, 124 Ill.Dec. 120, 528 N.E.2d 1011. As such, the reviewing court held as follows:
“In the instant case, the report shows on its face that notice of the suspension was given before the defendant completed the breathalyzer test. The notice defendant received from the Secretary of State‘s office stated that the suspension would begin 46 days from April 11, rather than April 12, when the breath test was administered. Since the sworn report is mandatory in order for the suspension to take effect, we must reverse the judgment of the circuit court continuing the suspension and remand the cause to that court.” Id. at 503, 124 Ill.Dec. 120, 528 N.E.2d 1011.
The reviewing court noted that the State had never attempted to amend the report to correct the alleged scrivener‘s error. Id. at 502, 124 Ill.Dec. 120, 528 N.E.2d 1011.
¶ 16 Similarly, in People v. Palacios, 266 Ill.App.3d 341, 342, 203 Ill.Dec. 737, 640 N.E.2d 657 (1994), the trial court rescinded Palacios‘s statutory summary suspension because the sworn report did not indicate the date the notice of suspension was given to Palacios and the failure to include that information was jurisdictional. The State appealed, but the reviewing court affirmed the trial court‘s decision. Id. at 344, 203 Ill.Dec. 737, 640 N.E.2d 657. The reviewing court noted that, in the absence of a date indicating when the notice of suspension was given, the Secretary of State would be unable to impose the suspension 46 days later (
¶ 17 Based on the holdings in Cooper and Palacios, the trial court did not err in granting the defendant‘s petition to rescind. The officer‘s sworn report failed to establish on its face the validity of the suspension because, as in Cooper, the report indicated that notice was given before the defendant completed the breath test. Furthermore, because the sworn report indicated that notice was given on September 2, 2009, a day prior to the breath test, the Secretary of State commenced the suspension 46 days from September 2 rather than September 3, the actual date that the defendant was presumably given notice of the suspension. Finally, at the hearing, the State did not move to amend the sworn report. Accordingly, the trial court did not err in granting the defendant‘s petition to rescind.
¶ 18 The State‘s next contention on appeal is that the trial court erred in denying its motion to reconsider. The denial of a motion to reconsider based only on the trial court‘s application of existing law is reviewed de novo. Compton v. Country Mutual Insurance Co., 382 Ill. App.3d 323, 330, 320 Ill.Dec. 734, 887 N.E.2d 878 (2008). “However, where the denial of a motion to reconsider is based on new matters, such as additional facts or new arguments or legal theories that were not presented during the course of the proceedings leading to the issuance of the order being challenged, the abuse of discretion standard applies.” Id. In the present case, in moving to reconsider, the State requested an opportunity to either amend the sworn report or reopen the proofs. Accordingly, because the denial of the motion to reconsider was based on a request to admit additional facts, we must review it for an abuse of discretion. Id. “In determining whether the trial court abused its discretion, `the question is not whether the reviewing court agrees with the trial court, but whether the trial court acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted.‘” In re Marriage of Gowdy, 352 Ill.App.3d 301, 307, 287 Ill.Dec. 610, 816 N.E.2d 372 (2004) (quoting In re Marriage of Aud, 142 Ill. App.3d 320, 326, 96 Ill.Dec. 615, 491 N.E.2d 894 (1986)).
¶ 19 In the present case, we cannot say that the trial court abused its discretion in denying the State‘s motion to reconsider. We acknowledge that defects in an officer‘s sworn report can usually be corrected by amendment. See Badoud, 122 Ill.2d at 59, 118 Ill.Dec. 407, 521 N.E.2d 884; People v. Fint, 183 Ill.App.3d 284, 286, 131 Ill.Dec. 792, 538 N.E.2d 1348 (1989). However, it is generally contemplated that such defects would be corrected either before or at the suspension hearing. Badoud, 122 Ill.2d at 61, 118 Ill.Dec. 407, 521 N.E.2d 884. Here, the State did not move to amend the report before or at the hearing, but moved to amend it after the judgment. In a summary suspension proceeding, the sworn report is effectively the complaint. Id. at 54, 118 Ill.Dec. 407, 521 N.E.2d 884. After judgment, a complaint may be amended only to conform to the proofs. Mandel v. Hernandez, 404 Ill.App.3d 701, 707, 344 Ill.Dec. 322, 936 N.E.2d 1079 (2010). Here, the officer did not testify, so the request to amend was not to make the sworn report conform to any proofs. Accordingly, based on the posture from which the State attempted to amend the sworn report or reopen the proofs, we cannot say that the trial court‘s
¶ 20 For the foregoing reasons, we affirm the judgment of the trial court granting the defendant‘s petition to rescind and denying the State‘s motion to reconsider.
¶ 21 Affirmed.
Justices McLAREN and HUTCHINSON concurred in the judgment and opinion.