People v. Donnelly , 327 Ill. App. 3d 1101 ( 2002 )

No. 3--01--0336
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2002
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 01--DT--200
)
SEAN C. DONNELLY, ) Honorable
) Raymond A. Bolden and
) Thomas Dunn,
Defendant-Appellant. ) Judges, Presiding
_________________________________________________________________
JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________
The defendant, Sean C. Donnelly, was arrested for driving under the
influence of alcohol (625 ILCS 5/11--501(a)(2) (West 2000)) on January 28,
2001. His driver's license was summarily suspended based on the arrest.
The defendant filed a motion to dismiss his summary suspension, which was
denied. The defendant appealed. We affirm.
The defendant filed a motion to dismiss his statutory summary
suspension on March 14, 2001, the day before the suspension began. In his
motion, the defendant alleged that the police officer's sworn report was
defective because it did not indicate the method of service.
A hearing was held on the defendant's motion on March 15, 2001. At
the hearing, the defendant presented the sworn report. The report
indicated that the defendant was served notice of his summary suspension on
January 28, 2001. However, neither the box on the report which indicated
the defendant was served with personal notice of the suspension, nor the
box which indicated that the defendant was served with notice of the
suspension by mail was marked.
The State presented the testimony of Illinois State Police Trooper
Shrake, the officer who arrested the defendant. The trooper testified that
he served the defendant with notice of his summary suspension on the date
that he arrested the defendant for driving under the influence. He did not
mark either box regarding method of service on the bottom of the sworn
report, nor did he ever attempt to amend the report after it was submitted
to the Secretary of State's office.
Judge Thomas Dunn found that the officer's sworn report was not
defective and dismissed the defendant's motion.
On March 19, 2001, the defendant filed a motion to strike the
officer's sworn statement on the grounds that it was not filed in
accordance with Supreme Court Rule 137 (155 Ill. 2d R. 137). After hearing
the defendant's argument, Judge Raymond Bolden denied the defendant's
motion.
The defendant now appeals the dismissal of both his motions.
The defendant first argues that his statutory summary suspension
should be dismissed because the police officer's sworn report was defective
and this defect deprived the court of jurisdiction over him.
Under Illinois law, if a driver is arrested for driving under the
influence, his driver's license is summarily suspended. 625 ILCS 5/11--
501.1(c) (West 2000). By statute, this suspension begins 46 days after the
defendant receives notice that his license will be suspended. 625 ILCS
5/11--501.1(g) (West 2000). When a police officer writes a citation for
driving under the influence, he is also required to serve the driver with
notice that his license will be summarily suspended. 625 ILCS 5/11--
501.1(f) (West 2000). The police officer files a sworn report indicating
the defendant's blood alcohol content with the Secretary of State's office.
625 ILCS 5/11--501.1(d) (West 2000). Once this report is received by the
Secretary of State's office, that office confirms the statutory summary
suspension by mailing the defendant a notice of the effective date of the
suspension. 626 ILCS 5/11--501.1(h) (West 2000). If an officer fails to
indicate in the sworn report when the defendant was served with notice of
the statutory summary suspension, the report is defective and the court is
deprived of jurisdiction. People v. Palacios, 266 Ill. App. 3d 341, 640
N.E.2d 657 (1994).
The defendant, relying on Palacios, contends that the sworn report
was defective because it did not indicate whether he was served in person
or by mail. He argues that this defect deprived the court of jurisdiction
and rendered his statutory summary suspension void.
In Palacios, the defendant was arrested for driving under the
influence. The sworn report completed by the police officer did not
indicate either the day that notice was served or how the defendant was
served with notice. Nevertheless, the Secretary of State's office, upon
receipt of the report, assumed that the defendant was given notice on the
arrest date listed on the report. The Secretary of State's office notified
the defendant that his license would be suspended. The defendant contested
the suspension, arguing that he was not given notice of the summary
suspension. The appellate court held that a sworn report that did not
indicate when the defendant was served with notice of the statutory summary
suspension was defective. Palacios, 266 Ill. App. 3d 341, 640 N.E.2d 657.
The court concluded that the sworn report did not provide a sufficient
basis for summary suspension of the defendant's driving privileges and
affirmed the trial court's rescission of the suspension. Palacios, 266
Ill. App. 3d 341, 640 N.E.2d 657.
The instant case is distinguishable from Palacios. Here, unlike
Palacios, the sworn report indicated that the defendant was served with
notice of his statutory summary suspension on January 28, 2001, the date of
his arrest. The Secretary of State's office had a sufficient basis for
suspending the defendant's driving privileges. Therefore, we agree with
the trial court that the sworn report was not defective and the court had
jurisdiction over the defendant.
The defendant next argues that his suspension should be dismissed
because the sworn report did not comply with Supreme Court Rule 137. This
rule requires that all pleadings, motions and "other papers" filed in the
court be signed by a party or a party attorney. 155 Ill. 2d R. 137. The
State is required to comply with this rule just like any other litigant.
155 Ill. 2d R. 137.
The defendant asserts, citing Palacios, that in a statutory summary
suspension proceeding, the police officer's sworn report acts like a
complaint in a civil case in that it initiates the defendant's driver's
license suspension. Palacios, 266 Ill. App. 3d 341, 640 N.E.2d 657. The
sworn report, he argues, is an "other paper" within the meaning of Supreme
Court Rule 137. Since it is the State and not the police officer who is a
party to the statutory summary suspension action, the defendant contends
that the officer's signature on the report does not meet the requirements
of Rule 137. The defendant concludes that the lack of an attorney's
signature requires that the sworn report be stricken.
The defendant's argument is not persuasive. The statutory summary
suspension of a driver's license is an administrative action taken by the
Secretary of State's office to keep dangerous drivers off the roads.
People v. Lent, 276 Ill. App. 3d 80, 657 N.E.2d 732 (1995). The police
officer's sworn report is the action which begins the administrative
process of a driver's license suspension. It does not initiate any court
proceeding. In fact, it is the defendant's motion to rescind a statutory
summary suspension that begins any court proceeding on the matter. We hold
that the police officer's sworn report is not a pleading or "other paper"
within the meaning of Supreme Court Rule 137. Therefore, the trial court
properly dismissed the defendant's motion to strike.
For the foregoing reasons, the judgment of the circuit court of Will
County is affirmed.
Affirmed.
McDADE, J., concurs.
JUSTICE HOLDRIDGE, dissenting;
I would find that the trial court erred in denying the defendant's
motion to strike the officer's sworn report pursuant to Supreme Court Rule
137. 155 Ill. 2d 137. I therefore respectfully dissent.
On appeal, the defendant relies upon People v. Badoud, 122 Ill. 2d
50, 521 N.E.2d 884 (1988), and People v. Palacios, 266 Ill. App. 3d 341,
640 N.E.2d 657 (1994), for the proposition that the officer's sworn report
in a summary suspension proceeding is analogous to a complaint in an
ordinary civil proceeding. The defendant reasons that because the officer
is an agent of the State, and the State is represented by an attorney, the
sworn report must be signed by an attorney for the State in compliance with
Rule 137. I agree.
The court in Badoud indicated that in a proceeding to rescind a
summary suspension, an officer's sworn report serves a function analogous
to a complaint in an ordinary civil proceeding. Badoud, 122 Ill. 2d 50,
521 N.E.2d 884. In Palacios, this court stated that the officer's sworn
report plays a unique role in a summary suspension hearing because, like a
complaint in a civil case, it is the jurisdictional step that starts the
proceeding. Palacios, 266 Ill. App. 3d 341, 640 N.E.2d 657.
In the present case, the officer's sworn statement was the first
jurisdictional step in a civil summary suspension proceeding. The officer
was an agent of the State of Illinois, which is represented by the office
of the State's Attorney. The officer's sworn statement is a pleading,
motion, or other paper of a party represented by the State's Attorney.
Therefore, under Rule 137, I would find that this pleading, motion, or
other paper must be signed by a State's Attorney or it may be stricken.
I do not believe that requiring the State's Attorney to sign an
officer's sworn statement represents an onerous burden on law enforcement
officers. Rule 137 already requires the officer to submit a copy of the
sworn statement to the circuit court of venue and the Secretary of State.
I would hold that the plain language of Rule 137 requires this pleading,
motion, or other paper in a civil matter to be signed by the attorney of
record, who is the State's Attorney, before being submitted to the circuit
court.
I note that Rule 137 also permits the absence of an attorney's
signature on a pleading, motion, or other paper to be cured by the prompt
signature of the attorney of record as soon as the omission is brought to
the attention of that attorney. In this case, I would reverse the denial
of the defendant's motion to strike and remand the matter to the circuit
court with instructions that the State's Attorney may promptly sign the
officer's sworn statement as soon as this omission is brought to the
State's Attorney's attention.
For the foregoing reasons, I would reverse the ruling of the Will
County circuit court and remand the matter with directions. I therefore
dissent.