THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ULLRICH, Defendant-Appellant.
No. 1-00-1855
First District (5th Division)
March 15, 2002
328 Ill. App. 3d 811
I understand the rationale behind remanding this case for resentencing. As a practical matter, however, defendant must now be resentenced for both cases. One of the trial courts must impose a sentence before the other court imposes the second sentence. As defendant‘s sentence in this case no longer violates
Opinion filed March 15, 2002.
GREIMAN, J., dissenting.
Peter A. Regulski, of Chicago, for appellant.
Richard A. Devine, State‘s Attorney, of Chicago (Renee Goldfarb, Jon J. Walters, and Sanjay H. Patel, Assistant State‘s Attorneys, of counsel), for the People.
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
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
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 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
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.
“(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 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 pur-
suant 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, 530 N.E.2d 210, 214 (1988), citing Bell v. Burson, 402 U.S. 535, 539, 29 L. Ed. 2d 90, 94, 91 S. Ct. 1586, 1589 (1971). The purpose of
As noted above,
In Orth, our supreme court considered whether placing the burden of proof upon the motorist in
The supreme court considered the risk of erroneous deprivation as more problematic. Orth, 124 Ill. 2d at 335, 530 N.E.2d at 214. The court concluded that state law enforcement personnel are unlikely to be lax in their breathalyzer procedures if they know that they may have to prove the results or face the rescission of a summary suspension. Orth, 124 Ill. 2d at 336, 530 N.E.2d at 215. This factor favored placing the burden of proof upon the State. Orth, 124 Ill. 2d at 336, 530 N.E.2d at 215.
The Orth court considered that the State‘s interest in preserving the safety of its highways is extremely important. Orth, 124 Ill. 2d at 336, 530 N.E.2d at 215. Because the State could still remove suspect motorists from the road before a hearing, and no suspended driver could reclaim his license until the conclusion of the hearing, this interest was deemed to be less pressing than it is in cases attacking the overall propriety of prehearing summary suspensions. Orth, 124 Ill. 2d at 336, 530 N.E.2d at 215. Nevertheless, the court concluded that placing the burden of proof upon the State would undeniably entail significantly greater fiscal and administrative burdens. Orth, 124 Ill. 2d at 336, 530 N.E.2d at 215.
Accordingly, the Orth court held that placing the burden of proof upon the suspended motorist would not violate his due process rights. Orth, 124 Ill. 2d at 337, 530 N.E.2d at 215. However, the supreme court stated that its ruling was “heavily influenced” by its
Considering the possibility that on remand the motorist could establish a prima facie case, the State argued in Orth that breathalyzer results may be admitted in a rescission hearing without laying the usual foundation, relying on the statute‘s provision that ” ‘[t]he hearing may be conducted upon a review of the law enforcement officer‘s own official reports; provided[,] however, that the [petitioner] may subpoena the officer.’ [Citation.]” Orth, 124 Ill. 2d at 338, 530 N.E.2d at 216; see
The supreme court then considered what evidence presented by the motorist will constitute a prima facie case for rescission. The court stated that “such evidence may consist of any circumstance which tends to cast doubt on the test‘s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol.” Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217. However, “[o]nly if the trial judge finds such testimony credible will the burden shift to the State to lay a proper foundation for the admission of the test results.” Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.
Orth is consistent with
In this case, the trial court‘s denial of the State‘s section 2-1110 motion necessarily implies that Ullrich presented sufficiently credible
Ullrich relies on Orth to argue that after he presented a prima facie case, the State may be required to produce evidence beyond the officer‘s sworn report. It could be argued that an officer‘s assertions of historical fact in a sworn report should be treated differently from that officer‘s recording of breathalyzer test results, as some of the foundational facts for admitting the latter may rest outside the officer‘s personal knowledge.2 Given that
Indeed, trial by affidavit raises confrontation and cross-examination concerns and has been consistently condemned by Illinois courts in criminal, civil, and administrative review cases since the nineteenth century. People v. McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470 (2000); Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill. 2d 367, 400-01, 603 N.E.2d 489, 503 (1992); People ex rel. Chicago Bar Ass‘n v. Amos, 246 Ill. 299, 302-03, 92 N.E. 857, 859 (1910); Union Mutual Life Insurance Co. v. Slee, 123 Ill. 57, 94-95, 13 N.E. 222, 228 (1887); Becker v. Quigg, 54 Ill. 390, 394 (1870); Whiteside v. Pulliam, 25 Ill. 257, 258 (1861). “[T]he rule against hearsay evidence ‘is
In McClanahan, our supreme court struck down a statute admitting sworn police laboratory reports in drug cases, provided that a report would not be prima facie evidence of the substance analyzed if the accused demanded the testimony of the person signing the report. Our supreme court noted that the statute did not guarantee that any waiver of an accused‘s confrontation rights was knowing and voluntary. McClanahan, 191 Ill. 2d at 137, 729 N.E.2d at 476-77. The court also “emphatically reject[ed] any notion that the State‘s constitutional obligation to confront the accused with the witnesses against him can be satisfied by allowing the accused to bring the State‘s witnesses into court himself and cross-examine them as part of his defense.” McClanahan, 191 Ill. 2d at 139, 729 N.E.2d at 477.
McClanahan, similar to this case, involved reports generated by the State as part of an investigation. Such reports (unlike medical reports, business records, public records, or other documents traditionally admitted under an exception to the hearsay rule) are generally deemed inadmissible hearsay, because reports relating to criminal investigations or anticipated litigation lack indicia of trustworthiness and reliability. See, e.g., People v. Smith, 141 Ill. 2d 40, 68-76, 565 N.E.2d 900, 912-16 (1990). The admission of police reports gives rise to serious confrontation and cross-examination concerns. See Smith, 141 Ill. 2d at 76, 565 N.E.2d at 916.
Of course, McClanahan and Smith were criminal cases; this case is not. However, in Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill. 2d 367, 400-01, 603 N.E.2d 489, 503 (1992), which involved administrative review, our supreme court stated that “affidavits offered to establish the truth of a matter at issue in the agency or on review should not be considered unless subject to some sort of adversarial examination.” Our supreme court stated that it would be “a miscarriage of justice” and “a violation of basic due process protections” to consider an unexamined affidavit to establish the truth of a matter asserted. Balmoral Racing Club, Inc., 151 Ill. 2d at 401, 603 N.E.2d at 503.
In this case, the trial court admitted the reports to show the officer‘s state of mind. Statements showing a declarant‘s state of mind are admissible as exceptions to the hearsay rule when the declarant is
The State relies heavily upon People v. Gafford, 218 Ill. App. 3d 492, 498, 578 N.E.2d 583, 587 (1991), in which the Second District of this court ruled that a trial court could rely on uncorroborated hearsay in sworn and unsworn police reports to deny a petition to rescind, where the petitioner did not subpoena the arresting officer.4 Gafford relied on
Moreover, while Gafford cites Orth for the proposition that the burden is on the motorist, it does not discuss Orth‘s holding that the burden of proof shifts if the motorist presents a prima facie case for rescission. Nor does Gafford address the Orth court‘s statement that this latter holding “heavily influenced” its ruling that the statute did not violate due process. See Gafford, 218 Ill. App. 3d at 498, 578 N.E.2d at 586.
The closest Gafford comes to the issue of due process may be found in a single paragraph:
“Finally, we are also not persuaded by defendant‘s impassioned plea that he did not have a fair and just hearing because he was denied the opportunity to cross-examine and impeach the ‘vacationing’ police officer. Defendant cannot now complain that he did not have this opportunity when he did not take advantage of his right to subpoena the officer and objected to the State‘s request for a continuance so that the officer could be present.” Gafford, 218 Ill. App. 3d at 499, 578 N.E.2d at 588.
As can be seen, the Gafford court cited no authority on this point; it is possible that Gafford cited none in his appeal. Certainly, if Gafford failed to cite to relevant authority in his appeal, the issue may be deemed waived.
In this case, Ullrich did not object to any attempt by the State to continue the case to obtain the reporting officer‘s testimony. Instead, the record shows that Ullrich objected to admitting various police reports, argued that considering some of the State‘s hearsay evidence would violate his due process rights, and complained about the absence of the police officers. Ullrich has supported his due process argument with citations to relevant authority. Unlike Gafford, Ullrich cannot be said to have waived his due process argument in those regards.
The State is left with the argument that Ullrich waived his due process rights by failing to take advantage of his right to subpoena the officer. In Richardson v. Perales, 402 U.S. 389, 402, 28 L. Ed. 2d 842, 853, 91 S. Ct. 1420, 1428 (1971), the Supreme Court held that a claimant could be denied social security disability benefits based on written medical reports, despite their hearsay character, where the claimant had not subpoenaed the reporting physicians.
Perales, however, differs from this case on a number of grounds.
Administrative burdens and costs would be imposed by requiring live testimony in either type of hearing. Perales, 402 U.S. at 406, 28 L. Ed. 2d at 855, 91 S. Ct. at 1430; Orth, 124 Ill. 2d at 336-37, 530 N.E.2d at 215. That concern was not controlling in Perales. Perales, 402 U.S. at 407, 28 L. Ed. 2d at 855, 91 S. Ct. at 1430. Nor was it controlling in Orth, to the extent that the State may be required to go beyond the officer‘s reports. A rule that the motorist must preemptively subpoena the officer or risk a defeat based solely on the reports would impose its own costs and burdens on the State, unless the rule is allowed to become a trap for those unaware of it.
The Perales Court further stated that “the specter of questionable credibility and veracity is not present” regarding the medical reports. Perales, 402 U.S. at 407, 28 L. Ed. 2d at 856, 91 S. Ct. at 1430. An agency or court may be able to rely on a corroborated sworn report by a police officer as impartial in the context of a predeprivation driver‘s license suspension process. Mackey, 443 U.S. at 14, 61 L. Ed. 2d at 332, 99 S. Ct. at 2619. A
However, Batchelder held that due process did not require an of-
“Even when disputes as to the historical facts do arise, we are not persuaded that the risk of error inherent in the statute‘s initial reliance on the representations of the reporting officer is so substantial in itself as to require that the Commonwealth stay its hand pending the outcome of any evidentiary hearing necessary to resolve questions of credibility or conflicts in the evidence.” (Emphasis added.) Mackey, 443 U.S. at 15, 61 L. Ed. 2d at 333, 99 S. Ct. at 2619.
In this case, a motorist cannot seek to rescind a suspension that does not exist; thus, postsuspension review does not involve an initial reliance on the officer‘s sworn report. Moreover, while the Illinois Vehicle Code in some cases provides for the lifting of a statutory summary suspension after some portion of it has been completed or the issuance of a limited driving permit, the State identifies no other method for rescission of a statutory summary suspension. See
Perales involved the consideration of multiple independent, consistent medical evaluations, prepared by presumably unbiased physicians, traditionally admitted at trials under an exception to the hearsay rule. See Perales, 402 U.S. at 402-06, 28 L. Ed. 2d at 853-55, 91 S. Ct. at 1428-30. In this case, as noted above, police reports pre-
In short,
A statute is presumed to be constitutional; the party challenging its validity has the burden to clearly establish invalidity. Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441, 701 N.E.2d 1056, 1059-60 (1998). Ullrich has not clearly established that
Moreover, the motorist may waive his or her right to subpoena the officer. Statutory and constitutional rights may be waived as long as the waiver is knowing, voluntary, and intentional. E.g., Suburban Downs, Inc. v. Illinois Racing Board, 316 Ill. App. 3d 404, 414-15, 735 N.E.2d 697, 704-05 (2000); In re Estate of Ferguson, 313 Ill. App. 3d 931, 937, 730 N.E.2d 1205, 1210 (2000). To waive rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail. E.g., In re W.C., 167 Ill. 2d 307, 328, 657 N.E.2d 908, 919 (1995).6
In this case, the Secretary of State‘s confirmation of the suspen-
Moreover, the trial court here continued the case, at the State‘s request, to a date keyed to the arresting officer‘s schedule, which may have unintentionally lulled Ullrich into believing he would be able to question the officer at the hearing. This court has warned of the danger that the State could effectively defeat a motorist‘s rights by discouraging an officer from appearing. See People v. Tran, 319 Ill. App. 3d 841, 843, 746 N.E.2d 320, 322 (2001). In this case, it seems that the State notified the officers and that they intended to appear, but they were required to appear elsewhere. Nevertheless, this case demonstrates the danger raised where there is no showing that the motorist was informed of his right to subpoena and the consequences of failing to exercise it, and knowingly and intelligently waived it.7
In sum, we hold that the procedure in section 2-118.1, allowing the consideration of the officer‘s official reports, subject to the motorist‘s right to subpoena the officer, comports with due process of
For all of the aforementioned reasons, the order of the circuit court of Cook County is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
JUSTICE REID, specially concurring:
While I concur in the result of the majority opinion, I feel compelled to write separately on the issue of trial by affidavit. I believe the way the trial court conducted the hearing implicates section 2-118.1 of the Illinois Vehicle Code in a way that is unconstitutional as applied to this defendant and these peculiar facts and circumstances.
“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.”
625 ILCS 5/2-118.1(b) (West 2000) .
The trial court reviewed the reports in this case because the officers did not attend the continued hearing. These reports were tantamount to an affidavit, and not a particularly compelling one at that, because they contain essentially unsworn matter. This material comes into evidence because of actions by the legislature and a quirk in the law which opens the door to a form of trial by affidavit. I concur that “trial by affidavit raises confrontation and cross-examination concerns and has been consistently condemned by Illinois courts in criminal, civil, and administrative review cases since the nineteenth century.” 328 Ill. App. 3d at 819. I also agree that ”ex parte affidavits have long been considered the weakest and most unsatisfactory evidence.” 328 Ill. App. 3d at 819, citing Franklin Union No. 4 v. People, 220 Ill. 355, 390, 77 N.E. 176, 188-89 (1906).
The officers in question were available at the original hearing, but that hearing was continued pursuant to a motion by the State. I agree that the granting of the continuance “may have unintentionally lulled Ullrich into believing he would be able to question the officer at the hearing.” 328 Ill. App. 3d at 826. I believe that, by moving the hearing
JUSTICE GREIMAN, dissenting:
After considering the tack the majority takes in arriving to its conclusion and its ultimate holding, I must respectfully dissent. The majority begins by outlining Ullrich‘s primary argument that the trial court‘s consideration of unsworn police reports violated his right to due process of law. It then carefully catalogues an assortment of civil, criminal, and administrative cases that have denounced the practice of “trial by affidavit” where a party‘s right to confrontation and cross-examination is impaired. After that in-depth analysis, however, the majority declines to answer Ullrich‘s argument because it finds that “the essential disputed facts in this case are addressed in the sworn report” and that “[t]he information in the unsworn reports was cumulative.” 328 Ill. App. 3d at 821 n.4.
Despite this seeming conclusion, however, it then finds that Ullrich properly preserved a due process argument by his objection “to admitting various police reports, argu[ing] that considering some of the State‘s hearsay evidence would violate his due process rights, and
In the end, the majority reverses the trial court for its error in holding that Ullrich had waived his right to subpoena because there was no evidence that his waiver was knowing, voluntary, and intentional. While I agree that the right to subpoena protects the defendant‘s due process concerns, I find sufficient evidence that his waiver was knowing, voluntary, and intentional. He was represented by counsel and the right to subpoena is expressly stated in section 2-118. In any event, I find that the trial court‘s use and acceptance of the police officer‘s unsworn reports comports with due process of law.
The majority acknowledges that this court‘s decision in People v. McIntire, 236 Ill. App. 3d 732 (1992), stands for the proposition that all of an officer‘s reports may be considered without a foundation for admission into evidence, and then ignores that decision. 328 Ill. App. 3d at 819 n.2. In making special note that McIntire was a Fourth District decision, it calls into question whether it is still good law. I believe that it is and see little in the cases the majority cites that would cause me to deviate from that belief. See also People v. Gafford, 218 Ill. App. 3d 492 (1991); In re Summary Suspension of Driver‘s License of Vaughn, 164 Ill. App. 3d 49 (1987).
In admitting all of an officer‘s filed official reports, the McIntire court compared its position to that prescribed by
Regardless of whether McIntire analogized
The main purpose behind a
In this case, that would entail reports that relate the officer‘s observations and how they related to his state of mind. The majority chastises the trial court‘s admittance of the reports to show the officer‘s state of mind because of a lack of a showing of the officer‘s unavailability. 328 Ill. App. 3d at 820-21, citing People v. Floyd, 103 Ill. 2d 541, 546 (1984). Under other circumstances, I would concur. However, as stated by the trial court, the issue at a rescission hearing is not whether the petitioner was actually driving while drunk, but only whether the officer had “reasonable grounds” for requesting him to take a breath test. A determination of whether “reasonable grounds” exist in these situations necessarily involves and is inevitably attached to an inquiry of the state of mind of the officer. Indeed, “[t]o determine whether reasonable grounds/probable cause existed, the trial court must determine whether a reasonable and prudent person, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.” People v. Fortney, 297 Ill. App. 3d 79, 87 (1998). For in these types of situations, the trial court has no evidence by which it can make a determination of “reasonable grounds” other than the written accounts of the situation, whether those accounts are sworn or unsworn. Without question, the reports truly are at the heart of the proceedings.
Accordingly, the unsworn reports and other hearsay go not to the truth of the matter asserted, but assist only in advancing the purpose of the hearing—the determination of the officer‘s state of mind (i.e., whether the officer has competently indicated the existence of “reasonable grounds“). Such evidence is, therefore, admissible. And while I agree with the majority that even sworn reports, which are akin to
Of course, statutory interpretation is necessary only where the words themselves are ambiguous. As this court stated in In re Estate of Ahmed, 322 Ill. App. 3d 741, 745 (2001):
“It is axiomatic that in construing a statute, the first step is to determine and give effect to the intent of the legislature in passing the law by considering ’ “the reason and necessity for the law, the evils it was intended to remedy, and its ultimate aims.” ’ Village of Mundelein [v. Franco], 317 Ill. App. 3d [512, 517, 740 N.E.2d 801, 805 (2000)], quoting People v. Pullen, 192 Ill. 2d 36, 42, 733 N.E.2d 1235, 1238 (2000). An analysis of statutory construction starts with the language of the statute itself, which this court should examine for its plain and ordinary meaning before other interpretive aids are consulted. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164, 692 N.E.2d 306, 312 (1998). Where the language of a statute is ambiguous, a court may resort to other means of statutory interpretation, such as legislative history, in order to determine the legislature‘s intent. Armstrong v. Hedlund Corp., 316 Ill. App. 3d 1097, 1106, 738 N.E.2d 163, 171 (2000).”
In the present case, the language of
It is difficult to understand the majority‘s reluctance to find section 2-118.1 unconstitutional. After pages of lambasting the practice of “trial by affidavit” and hovering around the issue of whether the defendant received due process, the majority concludes that “Ullrich
Ultimately, however, the majority reverses, holding that there was no evidence that Ullrich‘s waiver of his right to subpoena was knowing, voluntary, and intentional. It finds that because the information regarding license reinstatement, judicial review, and restricted permits was missing from the reverse side of the court copy in the record on appeal, there was no evidence to demonstrate that the motorist was informed of his right to subpoena. However, records from the Illinois Secretary of State‘s office, which are public records that this court may take judicial notice of (see Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill. App. 3d 935, 938 (1998)), indicate that “confirmations of suspension” sent by the Secretary of State do, in fact, list all of that information on the reverse side. Moreover, while it is true that the continuance of the case “to a date keyed to the arresting officer‘s schedule *** may have unintentionally lulled Ullrich into believing he would be able to question the officer at the hearing” (328 Ill. App. 3d at 826), the fact remains that Ullrich himself never moved for a continuance from that later date to secure the officer‘s presence. Because I believe that Ullrich was aware of his rights and simply chose not to exercise them, he waived his right to subpoena.
Accordingly, I respectfully dissent.