                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




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




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    ROBERT J. POLLITT, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-09-1247


Rule 23 Order filed        February 22, 2011
Rule 23 Order
withdrawn                  November 8, 2011
Opinion filed              November 8, 2011


Held                       In a DUI prosecution, the trial court properly granted defendant’s petition
(Note: This syllabus       to rescind the statutory summary suspension of his driving privileges and
constitutes no part of     denied the State’s motion to reconsider, since the breath test was
the opinion of the court   administered September 3, but the officer’s sworn report indicated that
but has been prepared      the notice of statutory summary suspension was given on September 2,
by the Reporter of         the result was that defendant’s license was suspended one day early, and
Decisions for the          the officer did not mark the box to indicate that the notice was served
convenience of the         immediately after defendant failed the breath test, the State did not move
reader.)
                           to amend the sworn report before or at the hearing on the petition to
                           rescind, and the postjudgment motion to amend was not made to make
                           the report conform to the proofs, especially when the officer did not
                           testify.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 09-DT-3746; the
Review                     Hon. Cary B. Pierce, Judge, presiding.
Judgment                   Affirmed.


Counsel on                 Joseph E. Birkett, State’s Attorney, of Wheaton (Lisa A. Hoffman,
Appeal                     Assistant State’s Attorney, and Lawrence M. Bauer and Gregory L.
                           Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.

                           Robert F. Stringini and Michael J. Garvey, both of Stringini & Garvey,
                           P.C., of Addison, for appellee.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices McLaren and Hutchinson concurred in the judgment and opinion.



                                             OPINION

¶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) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2006)), speeding (625 ILCS 5/11-
        601(b) (West 2006)), and failure to signal when required (625 ILCS 5/11-804 (West 2006)).
        The defendant was transported to the Addison police department. Also on September 2,
        2009, at 11:29 p.m., the arresting officer warned the defendant about the consequences of
        submitting to a blood, breath, or urine chemical test. 625 ILCS 5/11-501.1(c) (West 2006).
        The defendant agreed to submit to a breath test. The breath test readout ticket indicated that
        the defendant took the test at 12:11 a.m. on September 3, 2009, and that he had a blood
        alcohol content of 0.144. The officer subsequently completed a document entitled “law
        enforcement sworn report.” The report indicated that the defendant submitted to a breath test
        on September 3, 2009, but that the defendant was given notice of the statutory summary
        suspension of his driver’s license on September 2, 2009. The officer submitted a copy of the
        sworn report to the Secretary of State’s office and the clerk of the circuit court. The
        defendant received notice from the Secretary of State that the suspension would begin
        October 18, 2009.
¶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

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     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) (625 ILCS 5/11-501.1(g) (West 2006)), his suspension was required
     “to take effect on the 46th day following the date the notice of the statutory summary
     suspension was given.” The defendant argued that, because of that error, the Secretary of
     State was suspending his license a day early, namely, as of October 18, 2009, rather than
     October 19, 2009. The defendant held a commercial driver’s license (CDL) and he argued
     that starting his suspension a day early was a violation of his right to due process. The
     defendant also noted that the officer did not mark the box to indicate that the notice of
     suspension was served immediately upon the defendant after he failed the breath test.
¶5       The State argued that due process required only that a hearing on the defendant’s petition
     to rescind be held within 30 days of the filing of his petition. The defendant was afforded an
     opportunity for such a hearing. The State argued that there was no case law to support the
     proposition that starting a suspension 45 days, rather than 46 days, after the requisite notice
     entitled a defendant to a rescission. The State also argued that “in regards to the box not
     being checked, I will have the trooper come in here and testify that he personally served the
     defendant.” However, the State never called the trooper to testify.
¶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 625 ILCS 5/2-118.1(b) (West 2006)) and that a suspension starting
     45 days after notice was given was not one of those reasons. The State argued that the
     purpose of the 46-day delay was to give a driver an opportunity to stop an improper
     suspension from taking effect. The State argued that the defendant had that opportunity, as
     he had filed a petition to rescind and had two opportunities for hearing on the petition. The
     State further argued that misdating a sworn report was a defect that could be cured by

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       amending the sworn report. Accordingly, the State requested that the trial court vacate its
       order rescinding the defendant’s summary suspension and immediately hold a suspension
       hearing, at which time the State could amend the report or, alternatively, reopen the proofs.
       In response, the defendant argued that the sworn report was fatally defective, that the State
       never attempted to amend the report, and that the rescission order should not be vacated.
¶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.
¶9         On appeal, the State argues that the trial court erred in granting the defendant’s petition
       to rescind and in denying its motion to reconsider. In addition to raising the same arguments
       that were made before the trial court, the State argues that a defendant’s reliance on “hyper-
       technicalities” as a basis to rescind a suspension violates the state’s public policy to deter and
       remove drug-impaired drivers from the roadways. Additionally, the State argues that the trial
       court should have granted its motion to reconsider and allowed it an opportunity to amend
       the sworn report.
¶ 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].”
       625 ILCS 5/11-501.1(a) (West 2008). A motorist who is asked to submit to such testing shall
       be warned that his driving privileges will be summarily suspended if he (1) refuses testing
       or (2) submits to testing that reveals that the motorist’s blood alcohol level is in excess of the
       legal limit. 625 ILCS 5/11-501.1(c) (West 2008). If testing reveals a blood alcohol level in
       excess of the legal limit, “the law enforcement officer shall immediately submit a sworn
       report to the circuit court of venue and the Secretary of State, certifying that the test *** was
       *** requested under paragraph (a) and the *** testing *** disclosed an alcohol concentration
       of 0.08 or more.” 625 ILCS 5/11-501.1(d) (West 2008).
¶ 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.” 625
       ILCS 5/11-501.1(e) (West 2008). Section 11-501.1(f) requires the officer submitting the
       sworn report to “serve immediate notice of the statutory summary suspension on the person.”

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       625 ILCS 5/11-501.1(f) (West 2008). Section 11-501.1(g) provides, in turn, that the
       summary suspension “shall take effect on the 46th day following the date the notice of the
       statutory summary suspension was given to the person.” 625 ILCS 5/11-501.1(g) (West
       2008).
¶ 12        If a motorist’s driving privileges are summarily suspended, the motorist may request a
       judicial hearing seeking rescission of that suspension. 625 ILCS 5/2-118.1 (West 2008). The
       scope of that hearing is limited to the issues of whether (1) the motorist was placed under
       arrest for DUI; (2) the arresting officer had reasonable grounds to believe that the motorist
       was driving under the influence; (3) the motorist, after proper warnings, refused to submit
       to testing; and (4) the motorist, after proper warnings, submitted to testing and the test
       revealed a blood alcohol concentration of 0.08 or greater. 625 ILCS 5/2-118.1(b) (West
       2008). However, the trial court may also consider defects in the officer’s sworn report.
       People v. Badoud, 122 Ill. 2d 50, 54 (1988). “Upon the conclusion of the judicial hearing,
       the circuit court shall sustain or rescind the statutory summary suspension and immediately
       notify the Secretary of State.” 625 ILCS 5/2-118.1(b) (West 2008).
¶ 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 (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 justifying the suspension. Id. In
       considering an appeal of a ruling on a petition to rescind, a court of review defers to the trial
       court’s factual findings and considers de novo whether the petition to rescind should be
       granted. People v. Hacker, 388 Ill. App. 3d 346, 350 (2009).
¶ 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 (1988), instructive. In that case, Cooper was
       arrested for DUI on April 11, 1987, at 11 p.m. Id. at 501. 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. The sworn report
       was signed by the arresting officer and dated April 12, 1987. Id. at 502. The report 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 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. 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. “It is similar to a
       complaint in a civil case, the jurisdictional step which starts the proceeding.” Id. at 502. 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


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           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.
       The reviewing court noted that the State had never attempted to amend the report to correct
       the alleged scrivener’s error. Id. at 502.
¶ 16       Similarly, in People v. Palacios, 266 Ill. App. 3d 341, 342 (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. 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 (625 ILCS 5/11-501.1(g) (West 2008)). Id. at 343.
       The reviewing court further noted that there was no indication in the record that the State
       attempted to amend the sworn report prior to issuance of the suspension. Id. at 344. The
       reviewing court held that the trial court properly rescinded the summary suspension because
       the sworn report failed to establish on its face the validity of the suspension. Id.
¶ 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 (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 (2004) (quoting In re
       Marriage of Aud, 142 Ill. App. 3d 320, 326 (1986)).

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¶ 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; People v. Fint, 183 Ill.
       App. 3d 284, 286 (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. 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. After judgment, a complaint may be amended only to conform to the
       proofs. Mandel v. Hernandez, 404 Ill. App. 3d 701, 707 (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 denial of that request exceeded the
       bounds of reason or ignored recognized principles of law.
¶ 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.




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