                                  Illinois Official Reports

                                          Appellate Court



                             People v. Clayton, 2014 IL App (4th) 130340




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                      RYAN C. CLAYTON, Defendant-Appellee.


District & No.               Fourth District
                             Docket No. 4-13-0340


Filed                        March 4, 2014


Held                         In a prosecution for driving under the influence of alcohol, the failure
(Note: This syllabus         of the arresting officer’s sworn report and the notice of the summary
constitutes no part of the   suspension of defendant’s license to have a check mark in the boxes
opinion of the court but     indicating whether defendant was given immediate notice of the
has been prepared by the     suspension or notice by mail did not provide a basis for rescinding the
Reporter of Decisions        summary suspension of defendant’s license, since defendant admitted
for the convenience of       he was given the proper admonitions and received written notice.
the reader.)




Decision Under               Appeal from the Circuit Court of Schuyler County, No. 13-DT-1; the
Review                       Hon. Alesia McMillen, Judge, presiding.



Judgment                     Reversed and remanded.


Counsel on                   Ramon Escapa, State’s Attorney, of Rushville (Patrick Delfino, David
Appeal                       J. Robinson, and Anastacia R. Brooks, all of State’s Attorneys
                             Appellate Prosecutor’s Office, of counsel), for the People.

                             No brief filed for appellee.
     Panel                    JUSTICE POPE delivered the judgment of the court, with opinion.
                              Presiding Justice Appleton and Justice Holder White concurred in the
                              judgment and opinion.




                                               OPINION

¶1         The State appeals the trial court’s order granting defendant Ryan C. Clayton’s petition to
       rescind the statutory summary suspension of his driver’s license. We reverse and remand for
       further proceedings.

¶2                                           I. BACKGROUND
¶3         On December 27, 2012, Schuyler County sheriff’s deputy Tim Rhoads responded to a
       one-car accident involving a truck stuck in a ditch. Rhoads arrested defendant for driving under
       the influence of alcohol (DUI). Defendant agreed to submit to a Breathalyzer test. The sworn
       report shows defendant’s blood alcohol level was 0.236. Thereafter, the Secretary of State
       suspended defendant’s driver’s license.
¶4         On January 22, 2013, defendant filed a petition to rescind the suspension of his license,
       arguing (1) he was not properly placed under arrest for DUI, (2) the arresting officer did not
       have reasonable grounds to believe he was driving while under the influence of alcohol, (3) he
       was not properly warned by the arresting officer pursuant to section 11-501.1 of the Illinois
       Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West 2010)), and (4) the test did not
       indicate a blood alcohol level of 0.08 or more.
¶5         During the hearing on defendant’s petition, Deputy Rhoads testified he admonished
       defendant of the consequences involved in agreeing or refusing to take a Breathalyzer test prior
       to defendant taking it. Rhoads informed defendant if he took the test and failed his license
       would be suspended for 6 months but if he refused the test he would face a 12-month
       suspension. (A copy of the written warning to motorist is contained in the record.) Defendant
       agreed to the test, which, according to the sworn report, showed defendant’s blood alcohol
       level was 0.236.
¶6         After defendant took the test, Rhoads completed the sworn report and notice of summary
       suspension, which are a series of preprinted forms attached together and separated by carbon
       paper. The information requested on these forms is identical. The top copy is filled out by the
       officer and the pigment from the carbon paper makes imprints of the officer’s entries onto the
       underlying forms. After completing the documents, Rhoads tore the reports by the perforations
       and gave defendant his copy. Rhoads testified he filed one copy with the court and another
       with the Secretary of State. All the copies, including defendant’s, reflect the notice of summary
       suspension was given to defendant on December 27, 2012. (The warning to motorist filed with
       the court indicates it was given at 23:30, i.e., 11:30 p.m. The notice of summary suspension
       indicates testing was administered at 11:54 p.m.)

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¶7         During Rhoads’ testimony, defendant’s trial counsel introduced a copy of the sworn report
       (petitioner’s exhibit No. 2) and the notice of summary suspension provided to defendant
       (petitioner’s exhibit No. 6). At the bottom of the forms are two check boxes to indicate the
       manner in which notice of suspension was served on the defendant, i.e., either immediate
       notice of the suspension or notice by mail. On the copy provided to defendant (petitioner’s
       exhibit No. 6), neither box was checked. However, the box indicating immediate service was
       checked on both the copy of the sworn report filed with the court (petitioner’s exhibit No. 2)
       and the copy sent to the Secretary of State (People’s exhibit No. 3).
¶8         Rhoads testified he had marked the box on the first page of the sworn report at the time he
       gave the document to defendant. Rhoads stated he had “no idea” why the box was checked on
       the sworn report but not checked on the copy of the notice of the statutory summary suspension
       he provided defendant. Rhoads testified it was his habit to complete the entire form prior to
       tearing it apart. According to Rhoads, “I just figured it was marked when I marked the top
       one.” Rhoads denied he went back and marked the forms at a later time.
¶9         Defendant testified he received the notice of suspension from Rhoads on the night of the
       arrest. It is undisputed defendant’s copy shows notice of the suspension was given on
       December 27, 2012, the date of defendant’s arrest. Defendant testified Rhoads informed him
       his license would be suspended for 12 months if he refused to take the breath test. According to
       defendant’s testimony, Rhoads also told him his license would be suspended for six months if
       he took the breath test and failed.
¶ 10       During its argument, the State explained the differences in the copies by suggesting the
       carbon paper may have moved or separated while Rhoads was filling out the forms. The State
       characterized the omission as a minor matter and maintained defendant’s due process rights
       were not denied as a result.
¶ 11       Defendant’s counsel centered his argument on the missing check in the box on defendant’s
       copy, arguing “there is no explanation of how [defendant’s] Notice of Summary Suspension is
       different [from the other copies] other than the fact it was altered after [defendant] received his
       copy.” Defendant’s counsel maintained the discrepancy was an “identifiable issue” which
       justified rescinding defendant’s suspension.
¶ 12       The trial court found the check box on the sworn report was marked at a later time and not
       when Rhoads gave defendant his copy of the notice of summary suspension. The court stated
       “the officer made his own amendment after giving the defendant his copy and notified no one.”
       According to the court, Rhoads “most likely discovered his failure to check the box that he had
       given immediate notice to the defendant after he had given the copy to [him], and [Rhoads]
       then marked the box on the Court’s original and the Secretary of State’s copy, but he told no
       one.” On that basis, the court granted defendant’s petition to rescind the statutory summary
       suspension. (The rescission form filed April 19, 2013, indicates the basis for rescinding the
       summary suspension is “No Warning Given.”)
¶ 13       This appeal followed.




¶ 14                                          II. ANALYSIS
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¶ 15       On appeal, the State argues the trial court erred in granting defendant’s petition to rescind
       the suspension of his driver’s license. Specifically, the State argues rescission was not
       warranted because, even assuming, arguendo, Rhoads checked the box on the sworn report
       after he detached defendant’s copy, defendant received immediate and actual notice of the
       suspension. We agree.
¶ 16       We note defendant has not filed an appellee’s brief in this matter. However, because the
       record is simple and the claimed error is such that we can reach a decision without the aid of an
       appellee’s brief, we shall do so. First Capitol Mortgage Corp. v. Talandis Construction Corp.,
       63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).
¶ 17       In a statutory summary suspension hearing, the defendant bears the burden of proof to
       establish a prima facie case for rescission. People v. Granados, 332 Ill. App. 3d 860, 862, 773
       N.E.2d 1272, 1274 (2002). The defendant must satisfy his burden of proof by a preponderance
       of the evidence. Granados, 332 Ill. App. 3d at 862, 773 N.E.2d at 1274. After the defendant
       establishes a prima facie case, the burden shifts to the State to come forward with evidence
       justifying the suspension. People v. Smith, 172 Ill. 2d 289, 295, 665 N.E.2d 1215, 1217-18
       (1996). In considering an appeal of a ruling on a petition to rescind, we defer to the trial court’s
       factual findings but review de novo whether the petition to rescind should have been granted.
       People v. Hacker, 388 Ill. App. 3d 346, 350, 902 N.E.2d 792, 795 (2009) (citing People v.
       Wear, 229 Ill. 2d 545, 561-62, 893 N.E.2d 631, 641 (2008)).
¶ 18       Section 11-501.1 of the Vehicle Code (625 ILCS 5/11-501.1 (West 2012)) provides if a
       motorist arrested for DUI refuses to undergo chemical testing, or submits to testing which
       reveals an alcohol level of 0.08 or more, the motorist’s driving privileges will be summarily
       suspended. A motorist who refuses to submit to testing is subject to a longer suspension of
       driving privileges than one who submits to testing and fails. People v. Bavone, 394 Ill. App. 3d
       374, 378, 916 N.E.2d 75, 79 (2009).
¶ 19       The Vehicle Code requires an arresting officer to complete a sworn report certifying a test
       was requested and the defendant either refused to submit to testing or took the test and failed.
       625 ILCS 5/11-501.1(d) (West 2012). The officer must submit the report to the Secretary of
       State, who will then confirm the suspension by mailing a notice of its effective date to the
       defendant. 625 ILCS 5/11-501.1(h) (West 2012). However, if the Secretary of State
       determines the sworn report is defective, i.e., it does not contain sufficient information or was
       completed in error, then the confirmation of the suspension “shall not be mailed to the person
       or entered to the record.” 625 ILCS 5/11-501.1(h) (West 2012). Instead, “the sworn report
       shall be forwarded to the court of venue with a copy returned to the issuing agency identifying
       any defect.” 625 ILCS 5/11-501.1(h) (West 2012). The officer is also required to serve the
       driver with notice his license will be summarily suspended. 625 ILCS 5/11-501.1(f) (West
       2012) (either immediate notice or notice by mail).
¶ 20       A defendant may challenge the summary suspension of his driving privileges by filing a
       petition to rescind the suspension. 625 ILCS 5/2-118.1(b) (West 2012). By statute, the grounds
       upon which the petition may be based are limited to whether: (1) the motorist was lawfully
       arrested for DUI; (2) the arresting officer had reasonable grounds to believe that the motorist
       was under the influence of alcohol; (3) the motorist refused to submit to chemical testing after
       being advised that such refusal would result in a statutory summary suspension of driving
       privileges; and (4) the motorist submitted to chemical testing and failed the test. 625 ILCS
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       5/2-118.1(b) (West 2012). While the scope of the hearing is generally limited to these four
       issues (People v. Mayor, 2012 IL App (2d) 120050, ¶ 10, 982 N.E.2d 257), the supreme court
       has held the trial court may also consider defects in the officer’s sworn report. People v. Ehley,
       381 Ill. App. 3d 937, 942, 887 N.E.2d 772, 777 (2008) (citing People v. Badoud, 122 Ill. 2d 50,
       54, 521 N.E.2d 884, 886 (1988) (trial court in a rescission hearing may consider whether the
       officer’s report was properly sworn)).
¶ 21       In this case, the trial court stated it did not believe Rhoads’ testimony regarding when he
       checked the box indicating the manner of notice on the sworn report. We recognize, in
       circumstances, the manner in which the report was completed may be relevant to the validity of
       the statutory summary suspension. See People v. McClain, 128 Ill. 2d 500, 508, 539 N.E.2d
       1247, 1251 (1989) (considering the manner in which the report was completed but finding the
       officer’s failure to include the time and place of the test on his report was not cause for
       rescission of the suspension). However, here, the defect was in defendant’s copy of the notice
       of summary suspension and not Rhoads’ sworn report. See People v. Steder, 268 Ill. App. 3d
       44, 47, 642 N.E.2d 1360, 1363 (1994) (officer’s failure to fill out receipts on the back of
       summary suspension notice constituted formal defect which did not warrant rescission of the
       suspension); People v. Lent, 276 Ill. App. 3d 80, 81-82, 657 N.E.2d 732, 734 (1995) (notice of
       suspension is not part of officer’s sworn report; therefore, narrow exception for considering
       defects in sworn report is inapplicable to defect in notice of summary suspension). For the
       reasons that follow, even if Rhoads checked the box on the sworn report after he detached
       defendant’s copy, we find the absence of information regarding the manner of notice on
       defendant’s copy did not warrant rescission of his suspension.
¶ 22       As stated, the scope of a hearing on a petition to rescind is limited to the enumerated
       grounds provided in section 2-118.1(b)(1) to (b)(4) of the Vehicle Code (625 ILCS
       5/2-118.1(b)(1) to (b)(4) (West 2012)). The manner in which notice of the suspension is served
       on the defendant is not included in section 2-118.1. See People v. Grabeck, 2011 IL App (2d)
       100599, ¶ 14, 962 N.E.2d 620 (manner of notice is not one of the grounds for rescission). “The
       lack of information regarding how defendant was served with the notice, in contrast to when
       defendant was given notice, is a defect that does not warrant the rescission of the suspension.”
       (Emphases in original.) Grabeck, 2011 IL App (2d) 100599, ¶ 16, 962 N.E.2d 620 (reversing
       rescission where the officer failed to check either box on the sworn report indicating the
       manner in which the defendant was notified of the suspension because the report specified the
       date on which he was given notice); Lent, 276 Ill. App. 3d at 82, 657 N.E.2d at 734 (finding
       defendant was not deprived of any substantial right, since he clearly received actual notice of
       the summary suspension).
¶ 23       Here, Rhoads’ sworn report stated notice of defendant’s summary suspension was given to
       him on December 27, 2012, the date of his arrest. This is reflected in the copy of the report
       defendant acknowledged he received that night. Defendant’s copy of the sworn report is
       labeled “Notice of Summary Suspension/Revocation” and states “Notice of Summary
       Suspension/Revocation Given On 12/27/12.” Thus, defendant received actual and immediate
       notice of the suspension on December 27, 2012. Defendant did not argue he failed to receive
       notice of the suspension. Instead, defendant focused his argument on a technical defect in the
       way his copy reflected how he was served with that notice. However, given defendant was

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       provided with actual notice of the suspension on the date of his arrest, we cannot say the failure
       of his copy to show how he was given that notice warranted rescission in this case.
¶ 24        Moreover, this is not a situation where the Secretary of State lacked sufficient information
       with which to suspend defendant’s license. See People v. Palacios, 266 Ill. App. 3d 341, 343,
       640 N.E.2d 657, 658-59 (1994) (finding the sworn report was defective where the date
       indicating when the notice of suspension was given was missing because the Secretary of State
       would be unable to impose the suspension 46 days later). Section 11-501(g) of the Vehicle
       Code requires the statutory summary suspension take effect on the forty-sixth day following
       the date the notice of the statutory summary suspension was given. 625 ILCS 5/11-501.1(g)
       (West 2012).
¶ 25        Here, the Secretary of State confirmed the suspension took effect on February 11, 2013,
       i.e., 46 days after defendant’s December 27, 2012, arrest. Because the sworn report in this case
       included the date notice was served on defendant, the Secretary of State had the information
       necessary to process defendant’s suspension. See People v. Donnelly, 327 Ill. App. 3d 1101,
       1104, 765 N.E.2d 496, 498 (2002) (affirming denial of the defendant’s petition to rescind
       where the Secretary of State had sufficient information to suspend the defendant’s license even
       though the officer failed to check either box on the sworn report because the report indicated
       the defendant was served with notice of the suspension on the date of his arrest).
¶ 26        In sum, defendant was not deprived of a substantial right where it is clear he received actual
       notice of the statutory summary suspension on the date of his arrest. Defendant admitted he
       received the notice following his arrest, rendering the issue undisputed. Not only did defendant
       admit he received the written notice, he also admitted he was given the proper admonitions
       contained in the written warning to motorist. Accordingly, the trial court erred in granting
       defendant’s petition to rescind on the basis the officer failed to warn defendant his license was
       subject to summary suspension.

¶ 27                                   III. CONCLUSION
¶ 28      For the reasons stated, we reverse the trial court’s judgment and remand for further
       proceedings.

¶ 29      Reversed and remanded.




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