People v. Dominguez

Opinion

No. 3--05-0668 Filed August 9, 2006

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2006

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois Plaintiff-Appellant, ) ) v. ) No. 05--DT--743 ) ARMANDO DOMINGUEZ, ) Honorable

) Richard C. Schoenstedt, Defendant-Appellee. ) Judge, Presiding.

PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:

On May 13, 2005, the defendant, Armando Dominguez, was

issued three traffic tickets, including one for driving while

under the influence of alcohol, other drug or drugs, intoxicating

compound or compounds, or any combination thereof, in violation

of section 11--501(a)(6) of the Illinois Vehicle Code (the Code).

625 ILCS 5/11--501(a)(6) (West 2004). Subsequently, defendant

received notice that his driving privileges were to be summarily

suspended pursuant to section 11--501.1 of the Code. Defendant

filed a petition to strike and rescind his statutory summary

suspension, which was granted by the circuit court of Will

County. The State appeals from the circuit court's order granting defendant's petition.

BACKGROUND

On the day defendant was issued the three traffic tickets,

he agreed to provide a sample of blood and urine to determine

whether he had ingested any illegal drugs. Several weeks later,

the police officer who issued the tickets received a lab report

which indicated that defendant had, in fact, ingested illegal

drugs. The police officer prepared a supplemental sworn report. Copies of this report were mailed to the defendant and the

Secretary of State. The Secretary of State then sent a

confirmation of defendant's statutory summary suspension to the

defendant. No sworn report was mailed to the circuit court of

Will County.

Prior to the date upon which his statutory suspension was to

become effective, defendant filed a petition to strike and

rescind the suspension. This petition was based upon the fact

that the officer failed to forward his sworn report to the

circuit court of Will County in compliance with section 11--

501.1(f) of the Code. 625 ILCS 5/11--501.1(f) (West 2004). The

circuit court granted defendant's petition. The State appeals.

ANALYSIS

The sole issue on appeal is whether the circuit court

properly granted defendant's petition. To resolve this issue, we

must interpret section 11--501.1(f) of the Code. 625 ILCS 5/11--

501.1(f) (West 2004). Statutory construction is a matter of law

2 and, therefore, our standard of review is de novo. People v.

Phelps, 211 Ill. 2d 1, 809 N.E.2d 1214 (2004).

Section 11--501.1 states, in pertinent part, as follows:

"(a) Any 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, subject to the provisions

of Section 11-501.2, to a chemical test or tests of blood, breath, or urine for the purpose of

determining the content of alcohol, other drug or

drugs, or intoxicating compound or compounds or

any combination thereof in the person's blood if

arrested, as evidenced by the issuance of a

Uniform Traffic Ticket, for any offense as defined

in Section 11-501 or a similar provision of a

local ordinance. The test or tests shall be

administered at the direction of the arresting

officer. ***

***

(d) If the person refuses testing or submits

to a test that discloses an alcohol concentration

of 0.08 or more, or any amount of a drug, substance,

or intoxicating compound in the person's breath,

blood, or urine resulting from the unlawful use

or consumption of cannabis listed in the Cannabis

3 Control Act, a controlled substance listed in the

Illinois Controlled Substances Act, or an intoxicating

compound listed in the Use of Intoxicating Compounds

Act, 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 under paragraph

(a) and the person refused to submit to a test, or tests, or submitted to testing that disclosed an

alcohol concentration of 0.08 or more.

(f) *** In cases where *** any amount of a

drug, substance, or compound resulting from the

unlawful use or consumption of cannabis as covered

by the Cannabis Control Act, a controlled substance

listed in the Illinois Controlled Substances Act,

or an intoxicating compound listed in the Use of

Intoxicating Compounds Act is established by a

subsequent analysis of blood or urine collected at

the time of arrest, the arresting officer or

arresting agency shall give notice as provided in

this Section or by deposit in the United States

mail of the notice in an envelope with postage

prepaid and addressed to the person at his address

as shown on the Uniform Traffic Ticket and the

4 statutory summary suspension shall begin as provided

in paragraph (g). *** The officer shall immediately

forward the driver's license or permit to the

circuit court of venue along with the sworn report

provided for in paragraph (d)." 625 ILCS 5/11--

501.1 (West 2004).

The trial court's order states that it granted defendant's

petition "due to the failure to file the sworn report with the clerk of the court." Defendant maintains that the trial court

acted properly in that section 11--501.1(f) of the Code

unequivocally and clearly directs the officer to forward to the

circuit court the sworn report once it has been completed. 625

ILCS 5/11--501.1(f) (West 2004). Therefore, defendant continues,

after the court took notice that the sworn report was not filed

with the court, its only option was to strike and rescind

defendant's statutory summary suspension.

The State disagrees. The State admits that the officer

failed to send a copy of the sworn report to the circuit court as

directed by the statute. However, the State notes that the

statute is silent as to the proper remedy available in such an

instance. The State suggests that failing to send a copy of the

sworn report to the circuit court can be cured by later tendering

a copy of the report to the court. The State suggests that

allowing a defendant to escape the statutory summary suspension

called for in the Code as a result of a clerical error belies the

5 purpose and subverts the intent of the statute. We agree and

hold that the trial court erred in granting defendant's petition

to strike and rescind his statutory summary suspension.

Neither party cites authority which directly addresses this

issue. However, the State draws our attention to People v.

Badoud, in which the Illinois Supreme Court held that an

officer's failure to fulfill every technical requirement of

section 11--501.1 did not mandate the rescission of a defendant's statutory summary suspension. People v. Badoud, 122 Ill. 2d 50,

521 N.E.2d 884 (1988). The Badoud court dealt with a provision

contained in section 11--501.1(d) of the Code which states that

the arresting officer "shall immediately submit a sworn report"

to the Secretary of State and circuit court after the arrested

driver refuses or fails an appropriate sobriety test. Badoud,

122 Ill. 2d at 53, citing Ill. Rev. Stat. 1985, ch. 952, par.

11-501.1(d). The officer in Badoud failed to properly swear to

the report filed so there was technically no "sworn report" filed

with the Secretary of State. Badoud, 122 Ill. 2d at 56. Some of

the consolidated defendants in the Badoud case argued that the

officer's technical violation of failing to properly swear to the

report "ends the matter and necessitates dismissing the charges."

Badoud, 122 Ill. 2d at 57. In answering these arguments, the

supreme court stated:

"[W]e conclude that the General Assembly

6 intended an officer's good-faith failure to

initially swear to the report to be curable.

This interpretation fosters the accomplishment

of the legislation's obvious objective of pro-

tecting individuals using the roads in this

State.

We next consider whether an initial failure

to swear to the report must be corrected before the Secretary of State can enter the suspension.

We conclude that this is not essential. ***

[W]e believe that the summary suspension

provision should be liberally construed to

accomplish the General Assembly's obvious purpose

of fostering highway safety, and we believe that

the legislative objective would be thwarted by

holding void suspensions such as those occurring

in the instant cases. The most reasonable

interpretation of the statutory scheme is that,

while it permits a defendant to insist on having

an unsworn report corrected, it does not permit

him to escape responsibility for drunk driving by

pointing to this technical deficiency in the

completion of the officer's report." (Emphasis

in original.) Badoud, 122 Ill. 2d at 59-60.

We find Badoud instructive on this issue and similarly

7 believe that the most reasonable interpretation of the statutory

scheme is that failure of an officer to forward a copy of the

sworn report to the circuit court is a technical deficiency which

can be cured. The record is clear that both the defendant and

the Secretary of State were provided a copy of the sworn report.

The State is correct that the statute does not specifically

identify a remedy available to a defendant when the officer fails

to provide the circuit court the sworn report. To use our supreme court's words from Badoud, this statute simply does not

permit a defendant to escape responsibility for driving under the

influence of alcohol or drugs by pointing to a technical

deficiency in the completion of an officer's duties. Badoud, 122

Ill. 2d at 60. Any other holding would thwart the General

Assembly's obvious purpose of fostering highway safety. Having

received a copy of the report himself, this defendant was not

prejudiced in any way by the officer's failure to forward a copy

to the court. The supreme court stated in Badoud that the

statute gives defendant the right to have an unsworn report

properly attested to, but, to paraphrase, does not allow a

defendant to engage in a game of technical "gotcha" to avoid the

statutory summary suspension. Badoud, 122 Ill. 2d at 60.

Similarly, we hold in this instance that the statute permits a

defendant to have a copy of the sworn report forwarded to the

circuit court, but an officer's initial failure to do so does not

mandate rescission of the statutory summary suspension.

8 CONCLUSION

For the foregoing reasons, we hold that the circuit court

erred in granting defendant's petition to strike and rescind his

statutory summary suspension. Therefore, the judgment of the

circuit court of Will County is reversed and this case remanded.

Reversed and remanded.

BARRY and McDADE, JJ., concur.