People v. Angelino

513 N.E.2d 1132, 160 Ill. App. 3d 632, 112 Ill. Dec. 523, 1987 Ill. App. LEXIS 3153
CourtAppellate Court of Illinois
DecidedSeptember 16, 1987
Docket2-86-1023
StatusPublished
Cited by3 cases

This text of 513 N.E.2d 1132 (People v. Angelino) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Angelino, 513 N.E.2d 1132, 160 Ill. App. 3d 632, 112 Ill. Dec. 523, 1987 Ill. App. LEXIS 3153 (Ill. Ct. App. 1987).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

This is an appeal by defendant, Robert J. Angelino, from a court order denying defendant’s petition to rescind a statutory summary suspension of defendant’s driver’s license pursuant to section 11— 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501.1). We affirm.

On July 9, 1986, defendant was involved in an automobile accident and was arrested by a city of Naperville police officer for driving his automobile while under the influence of alcohol. Defendant was issued two citations by the arresting officer: one for driving under the influence of alcohol and the other for driving under the influence of alcohol with a blood-alcohol content of .10 or more, both charges in violation of local ordinances. The arresting officer filed a notice of summary suspension of defendant’s driver’s license as well as a law enforcement report. The law enforcement report is a standard form. Printed above the area for the arresting officer’s signature is the following: “Under penalties as provided by law pursuant to Section 1— 109 of the Illinois Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.” Under this is affixed the signature of the arresting officer, Gary Peterson.

At a hearing to rescind the statutory summary suspension of defendant’s driver’s license, Officer Peterson testified that at about 1:16 a.m. on July 9, 1986, he was called by the officer on the scene to an accident on Ogden Avenue. Officer Peterson further testified that when he arrived on the scene, defendant was outside his vehicle, and the vehicle itself was in the westbound lane of Ogden Avenue facing east across the two lanes. At the timé, defendant was talking with slurred speech. Officer Peterson stated that he and another officer administered field tests to defendant and that during one of these tests, a heel to toe test, defendant “kind of stumble[d]” and “staggered a little bit.” Officer Peterson also testified that during a leg lift test, defendant could not stay up for the length of the test. Officer Peterson further stated that he read defendant the motorist warning verbatim, that defendant decided to take a breathalyzer test, and that the result of that test was more than .10.

On cross-examination, Officer Peterson testified he did not see defendant driving the vehicle, and that he issued no other tickets to defendant except the two for driving under the influence.

Defendant testified that he was driving in an unfamiliar area, the lighting was poor, a streetlight in the area of the accident was inoperative, and at the time of the accident, it was rainy and the road was wet. Defendant also testified that he told the officer that he must have missed the turn in the road, and, at the time of the accident, he hit his head.

At the close of the hearing, the trial court ruled against defendant and denied the petition to rescind. Defendant thereafter filed a motion for reconsideration of the trial court’s order denying the petition to rescind the statutory summary suspension. The motion to reconsider was denied. Defendant then filed a timely notice of appeal.

Defendant first contends that the trial court erroneously placed the burden of proof on defendant to present evidence in the petition to rescind the statutory summary suspension. We disagree. As we have previously held, at a hearing to rescind a summary suspension, the burden of proof is upon the defendant. People v. Griffith (1987), 153 Ill. App. 3d 856, 861.

Defendant next contends that the arresting officer did not submit a properly sworn-to report certifying that defendant refused testing or that testing disclosed an unpermitted concentration of alcohol. Defendant argues that the law enforcement report was not sworn to as required by the section 11 — 501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501.1(d)) but, rather, was certified pursuant to section 1 — 109 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1 — 109). Defendant, thus, contends that the report was invalid and could not serve to support a suspension. Defendant contends that failure to submit a report that was properly sworn to is grounds to rescind the statutory summary suspension entered by the Illinois Secretary of State. In response, the State contends that this issue has been waived because it was not raised prior to appeal. In the alternative, the State contends that a report certified under section 1 — 109 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1 — 109) is “sworn” to for purposes of section 11 — 501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501.1(d)). After reviewing the record, we are of the opinion that defendant made sufficient objections to the law enforcement report to keep the issue alive on appeal. We will, therefore, consider the issue on the merits.

Section 11 — 501.1(d) of the Illinois Vehicle Code provides:

“If the person refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more, 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 or tests was or were requested pursuant to paragraph (a) and the person refused to submit to a test, or tests, or submitted to testing which disclosed an alcohol concentration of 0.10 or more.” (III. Rev. Stat. 1985, ch. 95½, par. 11— 501.1(d).)

Thus, the statute clearly and unequivocally requires the arresting officer’s report to be sworn. (People v. Badoud (1987), 155 Ill. App. 3d 912, 917.) We, therefore, turn to an analysis of the definition of “sworn.” Defendant contends that the term “sworn” requires that the arresting officer swear to the truth of the law enforcement report before someone authorized to take oaths of affirmations. In response, the State contends that a report is sworn to if it is certified under section 1 — 109 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1 — 109). We agree.

The former act relating to suspensions required that the arresting officer “file with the Clerk of the Circuit Court for the county in which the arrest was made, a sworn statement” and the Secretary of State was then to be notified by the clerk of the court. (Ill. Rev. Stat. 1973, ch. 95½, par. 11 — 501.1(d).) Thus, use of the term “sworn” was originally for purposes of filing with the clerk of a circuit court and not for filing with the Secretary of State. Therefore, the definition of “sworn” is dependent on what would be a “sworn” report for purposes of filing a document with a clerk of a circuit court.

Clearly, for purposes of filing a document with the clerk of a circuit court, a document is “sworn” to if it is certified in accordance to section 1 — 109 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1 — 109). Section 1 — 109 of the Code of Civil Procedure provides:

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Cite This Page — Counsel Stack

Bluebook (online)
513 N.E.2d 1132, 160 Ill. App. 3d 632, 112 Ill. Dec. 523, 1987 Ill. App. LEXIS 3153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-angelino-illappct-1987.