Opinion
2-21-0384
04-14-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL J. STEMBERK, JR., Defendant-Appellee.
This order was filed under Supreme Court Rule 23(b) and is precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Boone County. No. 21-DT-12, Honorable John H. Young, Judge, Presiding.
HUTCHINSON JUSTICE delivered the judgment of the court. Justices Jorgensen and Birkett concurred in the judgment in the judgment.
ORDER
HUTCHINSON JUSTICE.
¶ 1 Held: The trial court erred in granting defendant's petition to rescind the statutory summary suspension of his driver's license; defendant admitted he received actual immediate written notice of the suspension when released from jail following his arrest for driving under the influence of alcohol.
¶ 2 The State appeals from the trial court's grant of defendant's petition to rescind statutory summary suspension of his driver's license. The trial court found that defendant was not properly served with written notice of the summary suspension. The State contends that the officer's manner of notice of defendant's summary suspension is not a proper ground for a petition to rescind, pursuant to section 2-118.1(b) of the Illinois Vehicle Code (the Vehicle Code). 625 ILCS 5/2-118.1(b) (West 2020). Additionally, the State contends that the officer's notice of summary suspension to defendant complied with the strictures of section 11-501.1 of the Vehicle Code. 625 ILCS 5/11-501.1 (West 2020). We reverse.
¶ 3 I. BACKGROUND
¶ 4 On January 29, 2021, at approximately 10:45 p.m., Belvidere police officer, David Ellingson, responded to a dispatch about a vehicle in a ditch along Route 20. Defendant was found in the driver's seat of the vehicle with the keys in the ignition and the engine running. Defendant admitted to Ellingson that he had consumed beer and showed signs of impairment, including the strong odor of alcohol. Ellingson transported defendant to the Belvidere Police Department where he submitted to a breathalyzer test.
¶ 5 At the police station, Ellingson read the "Warning to Motorist" as required by section 11-501.1(c) of the Vehicle Code. Defendant signed the form acknowledging his receipt of the warning. The form reads that the warning was issued at "23:19 HRS." Ellingson's sworn report showed defendant was given the breathalyzer test on January 29, 2021 at 11:54 p.m. The sworn report stated that defendant's driver's license suspension "shall take effect on the 46th day following issuance of this notice." The sworn report contains a section for the attesting officer to indicate, by checking one of two boxes, denoting the manner in which defendant was provided service of the notice of summary suspension, which reads:
"Pursusant to Section 11-501.1 of the Illinois Vehicle Code I have:
[1] Served immediate Notice of Summary Suspension/Revocation/Disqualification of driving privileges on the above-named person.
[2] Given Notice of Summary Suspension/Revocation/Disqualification of driving privileges to the above-named person by depositing in the U.S. mail said notice in a prepaid
postage envelope addressed to said person at the address as shown on the Uniform Traffic Ticket."
Neither box was checked, and nothing contained in the sworn report indicated how defendant was served. After registering a blood-alcohol content of .203, defendant was placed under arrest and issued two citations for driving under the influence of alcohol (625 ILCS 5/11-501(a) (1), (2) (West 2018)).
¶ 6 The Secretary of State's office provided defendant with a confirmation of the summary suspension of his driver's license pursuant to section 11-501.1(h) of the Vehicle Code (625 ILCS 5/11-501.1(h) (West 2020)). The confirmation stated that the suspension would become effective on March 16, 2021, at 12:01 a.m.
¶ 7 On March 5, 2021, defendant filed a petition to rescind statutory summary suspension. Among its averments, the petition alleged that defendant "was not properly warned by the arresting officer as provided in Section 11-501.1 of the Illinois Vehicle Code" and defendant "was not served with the Notice of Summary Suspension Form."
¶ 8 On March 24, 2021, the trial court held a hearing on defendant's petition. Ellingson testified on direct examination that his failure to check either of the boxes on the sworn report was an omission and he would have marked the first box (see supra ¶ 4). He further stated that he dated and signed the report at the conclusion of his investigation on January 29, 2021.
¶ 9 On cross-examination, Ellingson testified that he read and explained the sworn report to defendant before placing it in a bin with defendant's personal property at the jail.
¶ 10 On redirect examination, Ellingson testified that, normally, someone in defendant's position at the jail would collect the bin with their personal items upon release but that he could not testify as to whether defendant received the report upon his release.
¶ 11 Defendant then testified that he received the sworn report after signing for his belongings upon being released from jail. On cross-examination, defendant recalled being present at the police station with Ellingson as "he was filling out paperwork." Defendant testified that he and Ellingson sat quietly after defendant took the breathalyzer test and Ellingson completed paperwork. Following the parties' arguments on the State's motion for a directed verdict, the trial court continued the matter to review relevant case law and Joint Exhibit 1, a video from the Belvidere Police Department on the night of defendant's arrest.
¶ 12 On March 31, 2021, the trial court issued its Memorandum of Decision and Order denying the State's motion for a directed verdict. The trial court's order read as follows:
"The Defendant *** was arrested for Driving Under the Influence *** of alcohol. He submitted to testing which showed an alcohol concentration of .203. Officer Ellingson completed the Law Enforcement Sworn Report. Neither of the 'boxes' were marked. The time of the test was marked 2354 pm. 1/29/21. The date of the Law Enforcement Sworn Report next to the signature line is 1/29/21 ***.
Failing to mark either box does not make the Law Enforcement Sworn Report defective ***. Here Officer Ellingson testified he should have marked the first box. He testified he read it to the Defendant at the Police Department and submitted at the jail. In examination by the State, Officer Ellingson testified he 'showed' the Law Enforcement Sworn Report to the Defendant at the police station.
The jail video captures Officer Ellingson turning (what the Court presumes to be) the Law Enforcement Sworn Report around and 'showing' it to the Defendant. He does not hand it to him. There is no audio to hear what was exactly said. All the papers are placed in the 'bin' and carried by the officer to the jail.
The Sworn Report uses the term 'served'. [Section] 11-501.1 [of the Vehicle Code] uses the term 'shall serve'. It is to be written notice. 11-501.1(g) states the suspension shall take effect on the 46th day following the date the notice of the statutory summary suspension 'was given' to the person. Simply showing and placing the sworn report with the Defendant's personal effects does not amount to 'serving' or 'giving' a defendant actual written notice.
Even if the manner of service, by receiving the law enforcement sworn report via your personal property as you're *** released from jail was sufficient and effective, the date of service is defective. The jail video shows the Defendant, officer, and jail escort all enter the elevator at 12:00:02. If the law enforcement sworn report was served when the Defendant was released from the jail cell, service would have had to have been on January 30, 2021. The date of the law enforcement sworn report date is incorrect. Therefore, the suspension did not take effect on the 46th day, but rather the 47th day.
The Defendant, while [it is a] very technical violation, has shown a prima facie case for rescission. The State's motion for a directed verdict is heard and denied."
¶ 13 On April 7, 2021, hearing on defendant's petition to rescind statutory summary suspension continued with the State's election to not present any additional evidence. The parties again made their respective arguments, largely duplicative of the arguments raised on the State's motion for a directed verdict, and the trial court issued the following findings:
"I'm going to make some brief observations. The sworn report shows and records the blood alcohol content as part of the in-the-jail test. It's pretty clear that the defendant was intoxicated. There was no indication that he was uncooperative, that he was belligerent or anything else, and while what Officer Ellingson did may have been logical, made some
common sense and it appears that [the report] was read to [defendant], and while the defendant was aware and he ultimately did receive the sworn report, I think that the defendant in this case has made a prima facie case that it wasn't actually served. And if it was served and the jail giving it to him as part of his personal effects, that service was on the following day. It's clear that this happened just a few minutes before midnight and a few minutes after midnight.
It's highly technical. I'm not in any way being derogatory of the officer, but I think it's a highly technical reading that he wasn't, in fact, served and the other statute provides that it was given. Those are the two terms. I don't think at this point it's been proved that that occurred and, therefore, respectively to both sides, the petition to rescind statutory summary suspension would be heard and granted, that the suspension is rescinded effective immediately."
¶ 14 On May 3, 2021, the State filed a motion to reconsider the trial court's rescission of defendant's statutory summary suspension. The motion argued that the trial court misapplied existing law because, the State averred, defendant was properly "served" within the meaning provided in the Vehicle Code. The State argued that defendant had been "served with immediate notice of his statutory summary suspension when on January 29, 2021, Officer Ellingson thoroughly informed defendant of the impending suspension, the reasons therefor, and its length by reading verbatim to defendant both the Warning to Motorist and Sworn Report."
¶ 15 Following a June 9, 2021, hearing on the State's motion to reconsider, the trial court denied the motion and reiterated its earlier findings that Officer Ellingson's act of placing the sworn report in a bin with defendant's belongings after reading and showing it to him did not constitute effective service.
¶ 16 On July 9, 2021, the State timely filed a notice of appeal.
¶ 17 II. ANALYSIS
¶ 18 The State contends that the trial court erred in granting defendant's petition to rescind statutory summary suspension of his driver's license. It raises three arguments in support of this contention: (1) the manner of notice is not a statutory ground for rescission; (2) the sworn report was not fatally defective; and (3) defendant was served with immediate notice when Officer Ellingson advised him of the suspension, showed him the sworn report, and placed the notice and sworn report with defendant's personal effects. We will address these arguments in turn.
¶ 19 At a summary suspension hearing, the defendant bears the burden of establishing a prima facie case for rescission, which means that a defendant must present, by a preponderance of the evidence, a proper basis for rescission. People v. Clayton, 2014 IL App (4th) 130340, ¶ 17. Once the defendant establishes a prima facie case, the burden shifts to the State to come forward with evidence justifying the suspension. Id. On appeal, we defer to the trial court's factual findings, but we review de novo whether the petition to rescind should have been granted. Id.
¶ 20 We begin with the State's argument that the manner of notice is not a sufficient ground for a petition to rescind statutory summary suspension. The State points to section 2-118.1(b) of the Vehicle Code (625 ILCS 5/2-118.1(b) (West 2020), as well as this court's decision in City of Highland Park v. Bryan, 2019 IL App (2d) 180662, for support.
¶ 21 Section 2-118.1(b) of the Vehicle Code details the scope of a hearing on a defendant's motion to rescind statutory summary suspension pursuant to section 11-501.1 of the Vehicle Code. The statutory grounds for the petition are limited to whether (1) the person was lawfully arrested for a qualifying offense, including DUI, (2) the arresting officer had reasonable grounds to believe that the person was driving under the influence of alcohol, (3) the person refused to submit to testing after being warned that a refusal would trigger a summary suspension, and (4) the person submitted to testing and failed the test. 625 ILCS 5/2-118.1(b) (West 2020).
¶ 22 In City of Highland Park, the defendant was arrested for driving under the influence of alcohol, in violation of section 11-501(a) (2) of the Vehicle Code and transported to the Highland Park police station. City of Highland Park v. Bryan, 2019 IL App (2d) 180662, ¶ 4. At the police station, the defendant was served by the arresting officer with the "Warning to Motorist" form before refusing to submit to a breathalyzer test. Id. ¶ 5. The officer then served the defendant with notice of the statutory summary suspension of his driving privileges. Id.
¶ 23 The defendant subsequently filed a petition to rescind the statutory summary suspension pursuant to section 2-118.1 of the Vehicle Code. Id. ¶ 6. At the hearing on his motion, the defendant argued that the notice of summary suspension was deficient because it did not include the length of his suspension, or the date and place where he refused to submit to the breathalyzer test, thus violating his due process rights and the immediate-notice requirement of section 115.01 of the Vehicle Code. Id. ¶ 8. The arresting officer testified at the hearing that the separate notice of statutory summary suspension served on defendant the day of his arrest did not include all of the information contained in his sworn report. Id. ¶ 7. The officer's sworn report contained the defendant's place of refusal to take the breathalyzer test, the date of refusal, and a check-marked box indicating that the defendant refused the test and his license would be suspended for 12 months. Id. The trial court found that the notice did not fail to comply with the requirements of section 11-501.1 of the Vehicle Code and denied defendant's petition to rescind the statutory summary suspension. Id. ¶ 9.
¶ 24 On appeal, the defendant contended that his notice of statutory summary suspension failed to provide him with "the information necessary to contest at hearing the right or privilege that the State [was] seeking to suspend or revoke." Id. ¶ 17. This court disagreed, finding that defendant had conflated the "notice" with the "sworn report" by using the terms interchangeably throughout his arguments. Id. ¶ 19. The defendant had acknowledged that he received a document labeled "Notice of Summary Suspension/Revocation" on the date of his arrest. Id. ¶ 21. The notice informed the defendant of his DUI case number, his arrest date, his date of notice, and a detailed narrative of why he was stopped and arrested. Id. Additionally, the notice included a paragraph that read:
"The suspension/revocation shall take effect on the 46th day following issuance of this notice. Subsequent to an arrest for violating Section 11-501 of the Illinois Vehicle Code, *** you are hereby notified that on the date shown above, you were asked to submit to a chemical test(s) to determine the alcohol *** content of your breath *** and warned of the consequences ***. You have the right to a hearing to contest your suspension/revocation. You must file a petition to rescind your suspension/revocation within 90 days of this notice." Id.
While this court acknowledged the statutory grounds permitted by section 2-118.1 of the Vehicle Code in a petition to rescind summary suspension, we ultimately held that the defendant "was thoroughly informed of the impending suspension, the reasons therefor, and its length" as he "received actual and immediate notice on [the arrest date], which is reflected in the sworn report." Id.
¶ 25 The facts in the present case are inapposite to those in City of Highland Park. Here, defendant was not served with either a "Notice of Summary Suspension/Revocation" or Ellingson's sworn report. The record is devoid of any evidence that a form detailing a notice of defendant's summary suspension exists apart from the sworn report placed with defendant's belongings. All details articulating notice to defendant as required under section 11-501.1(f) of the Vehicle Code were contained in Ellingson's sworn report, which stated that defendant's summary suspension "shall take effect on the 46th day following issuance of this notice." So, while the defendant in City of Highland Park acknowledged receipt of the notice of suspension and challenged the manner of service based on a defect in that notice, defendant in the present appeal based his petition to rescind on the failure to provide requisite notice of suspension in any manner. To put it another way, the manner of service is not at issue here; the question is whether service occurred at all.
¶ 26 The State is correct in its assertion that manner of service is not one of the issues listed in section 2-118(b) of the Vehicle Code. See 625 ILCS 5/2-118(b) (West 2020). However, section 2-118(b) of the Vehicle Code allows an opportunity for a hearing on a petition to rescind statutory summary suspension when "[w]ithin 90 days after the notice of statutory summary suspension or revocation served under Section 11-501.1, the person [makes] a written request for a judicial hearing in the circuit court of venue." (Emphasis added.) 625 ILCS 5/2-118.1(b). Actual written notice of statutory summary suspension is presumed to have been given to a defendant as a prerequisite to a request for hearing under this section of the Vehicle Code.
¶ 27 In People v. Osborn, 184 Ill.App.3d 728 (1989), the State appealed from the trial court's order granting rescission because the defendant had not been served with notice of summary suspension as required by statute. Id. at 728-29. On appeal, the State contended that because the defendant had availed himself of his right to a hearing, he was not prejudiced by the lack of statutory notice since he was able to bring a petition to rescind anyway. Id. at 729.
¶ 28 After finding the issue waived for failure to raise it in the trial court, this court noted in dicta that the State's argument was unpersuasive. Id. As notice was never served on the defendant, the law enforcement officer's sworn report issued to the Secretary of State, that subsequently issued a confirmation of statutory summary suspension of defendant's driving privileges, did not cure the failure of due process in not serving actual written notice as required under section 11-501.1 of the Vehicle Code. Id.
¶ 29 This court concluded that the statutory summary suspension procedure established by section 2-118.1 of the Vehicle Code satisfied the requirements of due process and noted that the "Illinois statute provides that the suspension will not be effective until defendant receives written notice." Id. Further, this court stated that service of the notice is a necessary part of the summary suspension of a driver's license. Id. at 730. The suspension cannot take effect until 46 days after the notice is given to defendant as required in section 11-501.1 (g) of the Vehicle Code and reiterated in section 2-118.1(a). "Failure to give notice would mean that a suspension would pend indefinitely." Id. Federal and state due process requires that a defendant be given notice as required by statute. Id. Thus, this court held, "until defendant was served with notice of summary suspension there could be no suspension either to be confirmed or otherwise." Id.
¶ 30 Although the scope of a petition to rescind is generally limited to the grounds enumerated in section 2-118.1 (b) of the Vehicle Code, our supreme court has determined that a defendant may also challenge defects in the officer's sworn report. See People v. Clayton, 2014 IL App (4th) 130340, ¶ 20 (citing People v. Badoud, 122 Ill.2d 50, 54 (1988) (trial court in a rescission hearing may consider whether the officer's report was properly sworn)). Moreover, this court, after recognizing that the manner of service was not a proper statutory basis to challenge a suspension, nevertheless considered whether a suspension was proper when someone other than the arresting officer served the defendant with notice of the suspension. See People v. Lent, 276 Ill.App.3d 80, 81-82 (1995). Given our holding in Lent and the fact that Ellingson's sworn report is arguably defective because it contradicts the evidence presented at the hearing on defendant's petition to rescind as to whether he was served with notice, we reject the State's claim that defendant failed to challenge his suspension on a proper basis.
¶ 31 The State next argues that Ellingson's sworn report was not fatally defective. We agree with both the State and the trial court when it found that Ellingson's failure to check the box indicating the method of service of the notice did not render the sworn report fatally defective such that that omission would require rescission. Failing to indicate on the sworn report the manner by which defendant was given notice of his suspension is not a defect warranting rescission of his suspension. See People v. Grabeck, 2011 IL App (2d) 100599, ¶ 1. However, this does not change the statutory notice requirements of section 11-501.1 of the Vehicle Code, a necessary due process hurdle to the denial of defendant's petition to rescind under section 2-118.1(b). See Osborn, 184 Ill.App.3d at 730. Defendant's petition to rescind was based on defective notice under section 11-501.1 of the Vehicle Code, not any specific defect with the information contained within Ellingson's sworn report. So, while we will not disturb the trial court's finding as to the non-defective nature of Ellingson's sworn report, the real crux of this appeal is found in the State's final argument as to whether defendant was served with immediate notice of the summary suspension when Ellingson verbally advised him of the information contained in the sworn report and placed it with defendant's belongings.
¶ 32 Section 11-501.1(f) of the Vehicle Code requires that "[t]he law enforcement officer submitting the sworn report *** shall serve immediate notice of the statutory summary suspension or revocation on the person and the suspension or revocation and disqualification shall be effective as provided in paragraph (g)." 625 ILCS 5/11-501.1(f) (West 2020). Paragraph (g) states that "[t]he statutory summary suspension or revocation and disqualification referred to in this Section shall take effect on the 46th day following the date the notice of the statutory summary suspension or revocation was given to the person." 625 ILCS 5/11-501.1(g) (West 2020).
¶ 33 "Immediate" service of notice, as used in section 11-501.1(f) of the Vehicle Code (625 ILCS 5/11-501.1(f) (West 2020)) does not mean instantaneous. See People v. Marley, 176 Ill.App.3d 401, 404-05 (1988). Illinois courts have long held that where an act is required to be done "immediately," whether the obligation is imposed by law or by contract, this means that "the performance shall be with due and reasonable diligence in view of the circumstances of the case, and without unnecessary or unreasonable delay." Id. at 405 (quoting Anderson v. Steinle, 289 Ill.App. 167, 171 (1937)).
¶ 34 Returning to the facts of the present case, defendant testified at the hearing on his petition to rescind that he received actual written notice of the statutory summary suspension of his driver's license upon his release from jail with the rest of his belongings. However, defendant admitted at the hearing on his petition to rescind summary suspension that he received actual notice of summary suspension upon his release from jail.
¶ 35 This court's decision in Lent guides our holding in the present appeal. In Lent, the State appealed a trial court's order rescinding statutory summary suspension of the defendant's driver's license on the ground that a jail official, not the arresting officer, served the defendant with notice of the suspension. Lent, 276 Ill.App.. 3d at 80-82. We reversed and held that the defendant was not deprived of any substantial right in receiving notice of the suspension from the jail official as "he clearly received notice of the summary suspension and of his right to request a recission hearing." Id. at 82.
¶ 36 Here, there is no dispute that defendant in the present appeal received actual written notice of the suspension of his driver's license. His petition to rescind rested on what he characterized to the trial court as a "hyper technical issue" regarding the notice requirements of section 11-501.1(f) of the Vehicle Code (625 ILCS 5/11-501.1(f)). We agree that defendant's petition depended on a technicality, but we cannot agree with the trial court's finding that recission was warranted when defendant's own testimony reveals his receipt of immediate actual written notice upon his release from jail.
¶ 37 Our supreme court has made clear that summary suspension laws must be carefully construed as part of the legislature's efforts to promote safety on Illinois' roads. Badoud, 122 Ill.2d at 60. Accordingly, we hold that defendant's receipt of notice of suspension upon his release from jail did not amount to a violation of the notice requirements in section 11-501.1(f) of the Vehicle Code (625 ILCS 5/11-501.1(f)). To conclude otherwise would thwart the legislature's intent and elevate form over substance. We decline to choose that course.
¶ 38 III. CONCLUSION
¶ 39 For the foregoing reasons, the judgment of the circuit court of Boone County is hereby reversed.
¶ 40 Reversed.