                               Illinois Official Reports

                                      Appellate Court



                          People v. McLeer, 2015 IL App (2d) 140526



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  JAIME McLEER, Defendant-Appellant.


District & No.           Second District
                         Docket No. 2-14-0526


Filed                    February 27, 2015


Held                       When defendant was arrested for driving under the influence and the
(Note: This syllabus arresting officer, after defendant refused to submit to testing, told
constitutes no part of the defendant that his driving privileges would be suspended and the
opinion of the court but officer tendered the sworn report to defendant even though the report
has been prepared by the was incomplete in that a date was not filled in, and later, based on the
Reporter of Decisions advice of the Secretary of State’s Office, the arresting officer amended
for the convenience of the report to include the missing date, sent it to the Secretary, who
the reader.)               used it to confirm the suspension date, and the officer gave defendant
                           the amended report at the suspension hearing, the State was allowed to
                           amend the sworn report in the court’s file to show the correct date;
                           therefore, under the circumstances, the amended sworn report allowed
                           the Secretary of State to calculate and confirm defendant’s suspension
                           and determine that the defect did not warrant the rescission of the
                           suspension, and the trial court’s judgment upholding the denial of
                           defendant’s petition to rescind suspension was affirmed.



Decision Under           Appeal from the Circuit Court of McHenry County, No. 14-TR-2948;
Review                   the Hon. Joel D. Berg, Judge, presiding.



Judgment                 Affirmed.
     Counsel on                Elizabeth J. Pudwill, of Donahue & Walsh, P.C., of McHenry, for
     Appeal                    appellant.

                               Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M.
                               Bauer and Sally A. Swiss, both of State’s Attorneys Appellate
                               Prosecutor’s Office, of counsel), for the People.



     Panel                     JUSTICE BURKE delivered the judgment of the court, with opinion.
                               Presiding Justice Schostok and Justice Zenoff concurred in the
                               judgment and opinion.



                                                OPINION

¶1         The driving privileges of defendant, Jaime McLeer, were summarily suspended after he
       refused to submit to chemical testing to determine the concentration of alcohol in his blood.
       Defendant petitioned to rescind the suspension, claiming, among other things, that the
       suspension was based on the arresting officer’s incomplete “Law Enforcement Sworn Report”1
       (sworn report). At the hearing on the petition, the court allowed the State to amend the sworn
       report to indicate the date that the notice was given to defendant. The trial court denied the
       petition, and defendant timely appeals. For the reasons that follow, we affirm.
¶2         The following facts are relevant to resolving the issue raised. On January 26, 2014,
       defendant was arrested for driving under the influence (DUI) (see generally 625 ILCS
       5/11-501 (West 2012)). After being warned of the consequences, defendant refused to submit
       to testing. As a result, the arresting officer told defendant that his driving privileges would be
       suspended, and the officer tendered the sworn report to him. The sworn report was dated
       “01/26/14,” listed that date as the “Refusal or Test Date,” and indicated that “immediate Notice
       of Summary Suspension/Revocation of driving privileges [was served] on [defendant].”
       However, no date was listed next to the designation “Notice of Summary
       Suspension/Revocation Given On.” Based on the lack of this date, among other reasons,
       defendant petitioned to rescind his suspension.
¶3         At the hearing on this petition, the arresting officer testified that, soon after he sent the
       sworn report to the Secretary of State’s office (Secretary), the Secretary informed him that,
       because information was missing on the sworn report, the Secretary was unable to confirm the
       summary suspension of defendant’s driving privileges. More specifically, the Secretary
       advised the arresting officer that he needed to fill in the portion of the form that provided when
       “Notice of Summary Suspension/Revocation [was] Given.” The arresting officer amended the
       sworn report to indicate that notice was given to defendant on the date he was arrested, January
       26, 2014. He sent the amended sworn report to the Secretary, and the Secretary used it to

             1
            The sworn report is a preprinted form that informs the defendant that his suspension will take
       effect on the forty-sixth day after issuance of the notice. See 625 ILCS 5/11-501.1(g) (West 2012).

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       confirm that the summary suspension of defendant’s driving privileges would begin 46 days
       after January 26, 2014, i.e., on March 13, 2014. However, the officer never sent the amended
       sworn report to defendant or the court. Nevertheless, the officer confirmed at the hearing that
       he gave defendant notice of the suspension on January 26, 2014. Based on this evidence, the
       court allowed the State to amend the copy of the sworn report that was in the court’s file to
       reflect that notice was given to defendant on January 26, 2014.
¶4         The trial court denied the petition to rescind the summary suspension of defendant’s
       driving privileges. In doing so, the court found that the arresting officer’s failure to fill in the
       portion of the sworn report asking for the date that “Notice of Summary
       Suspension/Revocation [was] Given” constituted a formal defect that could be cured by
       amendment, as all of the evidence indicated that defendant was served with notice of the
       suspension on January 26, 2014.
¶5         Soon thereafter, defendant moved the court to reconsider the denial of his petition to
       rescind. The trial court denied the motion. In reaching that conclusion, the court found that, on
       the sworn report, there was “a date in the lower right-hand corner” and a “box checked saying
       that [the officer] gave notice.” Moreover, there was “sworn testimony from an officer that was
       in no way impeached that said [the officer] gave a copy of that document to [defendant] telling
       [defendant] that 46 days hence, [his] license will be suspended.”
¶6         On appeal, defendant argues that (1) the defect in the original sworn report required the
       rescission of the suspension of his driving privileges; and (2) the defect was not effectively
       cured by any purported amendment. As we reject defendant’s first argument, we do not reach
       his second.
¶7         Although we generally employ a bifurcated standard of review in reviewing a trial court’s
       ruling on a petition to rescind the suspension of driving privileges (see People v. Wear, 229 Ill.
       2d 545, 561-62 (2008)), our review here is de novo, as the facts are not in dispute (see People v.
       Sven, 365 Ill. App. 3d 226, 231 (2006)).
¶8         Section 11-501.1(g) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501.1(g) (West
       2012)) provides that “[t]he statutory summary suspension [of a defendant’s driving privileges]
       shall take effect on the 46th day following the date the notice of the statutory summary
       suspension *** was given to the [defendant].” Section 2-118.1(a) of the Code (625 ILCS
       5/2-118.1(a) (West 2012)) mandates that “[a] statutory summary suspension *** of driving
       privileges under [s]ection 11-501.1 shall not become effective until the [defendant] is notified
       in writing of the impending suspension *** and informed that he may request a hearing in the
       circuit court of venue.”
¶9         Section 2-118.1(b) of the Code (625 ILCS 5/2-118.1(b) (West 2012)) provides for the
       grounds upon which a petition to rescind a suspension may be based. Although the scope of a
       petition to rescind is generally limited to these grounds, our supreme court has determined that
       a defendant may also challenge defects in the officer’s sworn report. People v. Clayton, 2014
       IL App (4th) 130340, ¶ 20; see People v. Badoud, 122 Ill. 2d 50, 54 (1988). Here, defendant
       challenges the officer’s sworn report.
¶ 10       A defective report is defined as one that contains insufficient information from which to
       issue a suspension or one that was completed in error. 625 ILCS 5/11-501.1(h) (West 2012).
       Accordingly, errors in the sworn report that do not prevent the Secretary from confirming the
       suspension are not fatal and will result in the denial of the defendant’s petition to rescind.
       People v. Wyzgowski, 323 Ill. App. 3d 604, 606 (2001).

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¶ 11       The question presented here is whether the failure to fill in the blank line on the sworn
       report asking for when “Notice of Suspension/Revocation [was] Given” constituted a fatal
       defect warranting the rescission of the statutory summary suspension of defendant’s driving
       privileges. We find two cases instructive on this question.
¶ 12       In Wyzgowski, the sworn report indicated that the defendant was arrested and failed a
       Breathalyzer test on July 7, 2000. Id. at 605. In actuality, the defendant was arrested on July 6,
       2000, the day before. Id. The Secretary confirmed the summary suspension, advising the
       defendant that the suspension would begin 46 days after July 7, 2000, i.e., on August 22, 2000,
       and the defendant petitioned to rescind the suspension based on the arrest-date defect in the
       sworn report. Id. The trial court denied the petition, and the defendant appealed. Id. The
       appellate court affirmed, noting that “[a]side from the date of arrest, the [sworn] report in the
       instant case correctly identified the breathalyzer testing date as July 7, 2000,” and the sworn
       report “also accurately stated that the defendant was provided notice of the statutory summary
       suspension immediately after he failed the test on July 7.” Id. at 606. Given those two things,
       the court determined that “the [sworn] report contained sufficient information to permit the
       Secretary *** to calculate the effective date of the suspension.” Id. Thus, the defect was not
       fatal, “because [the defendant] received proper notice of the summary suspension and the dates
       upon which the suspension was based were correctly recorded in the original sworn report.” Id.
       at 606-07.
¶ 13       In People v. Palacios, 266 Ill. App. 3d 341, 342 (1994), the sworn report the defendant was
       given failed to indicate whether notice of the suspension was given to the defendant
       immediately or mailed to him. Moreover, the arresting officer failed to fill in the blank space
       asking for the date that notice of the suspension was given to the defendant. Id. The Secretary
       confirmed the suspension, using the date of the defendant’s arrest as the date that notice was
       given. Id. at 342-43. The defendant petitioned to rescind the suspension, the trial court granted
       the petition, and the State appealed. Id. at 342. The appellate court affirmed, noting that “unless
       the sworn report indicates to the Secretary the date upon which notice of suspension was given,
       the Secretary would be unable to impose the suspension 46 days later.” Id. at 343.
¶ 14       Although the sworn report here falls somewhere between Wyzgowski and Palacios, we
       believe that it is closer to Wyzgowski. Specifically, the sworn report listed the date that
       defendant refused to submit to testing, indicated that notice of the suspension was served on
       defendant immediately, and stated that it was signed on the same date. From this information,
       the Secretary, as in Wyzgowski, had sufficient information to calculate and confirm the
       suspension. In Palacios, unlike in this case, the sworn report failed to indicate not only the date
       that notice was given to the defendant, but also whether notice was immediately given to him
       or mailed. Because of this lack of information, the Secretary could not deduce when notice was
       given to the defendant. Here, the Secretary had sufficient information to conclude that
       defendant was given notice of the suspension on January 26, 2014. Accordingly, the Secretary
       could properly calculate that the suspension would begin 46 days later, on March 13, 2014.
¶ 15       The fact that, in this case, the Secretary sent the sworn report back to the arresting officer
       so that he could fill in the blank next to “Notice of Summary Suspension/Revocation Given
       On” is inconsequential. Perhaps the Secretary was being overly cautious in light of the holding
       in Palacios, but at issue is not whether the Secretary actually confirmed the summary
       suspension based on the information in the sworn report but, rather, whether the Secretary
       could have done so. Here, although we certainly do not condone the officer’s failure to

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       complete the sworn report in toto, the information in the sworn report gave the Secretary
       sufficient information to calculate and confirm defendant’s suspension.
¶ 16       Having concluded that the defect did not warrant the rescission of the suspension, we need
       not address whether the defect was effectively cured.
¶ 17       For these reasons, the judgment of the circuit court of McHenry County is affirmed.

¶ 18      Affirmed.




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