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SECOND DIVISION          
Filed August 5, 2003            

1-01-4140

This appeal stems from the zero tolerance suspension ofplaintiff Andrew J. Kalita's driver's license and privileges. Plaintiff was born on April 26, 1981. On August 4, 1999, whenplaintiff was 18 years old, he was charged with consumption of analcoholic beverage by a minor, improper lane use, and failure topossess his driver's license on his person. On August 25, 1999,plaintiff filed a request for a formal hearing to contest thesuspension. Plaintiff also filed a notice that on August 30, 1999,he would file his petition to rescind the zero tolerancesuspension. Following an administrative hearing, defendant JesseWhite, Secretary of State, adopted the recommendations of thehearing officer and denied plaintiff's petition. Plaintiff fileda complaint in the circuit court of Cook County for administrativereview. The circuit court affirmed defendant's decision. Plaintiff has appealed, contending that the hearing officer erredin admitting the hearsay evidence of the police officer's reportsas substantive evidence. Plaintiff contends further that thehearing officer erred in finding that service of notice of the zerotolerance suspension upon his mother was proper. Finally,plaintiff contends that the hearing officer erred in finding thathe refused or failed to complete a breath test.

At the administrative hearing held on October 4, 1999,plaintiff and his mother were the sole witnesses who testified.

Plaintiff testified that on the evening of August 4, 1999, hewas on Southwest Highway driving in his lane and was not violatingany traffic law when a police officer pulled him over. The officerapproached plaintiff's vehicle and said that he had mistakenplaintiff for someone else. The officer cited plaintiff forseveral traffic violations and for underage consumption of alcohol. Plaintiff testified that he had not consumed any alcoholic beverageprior to driving that night. The traffic citations subsequentlywere dismissed after the court was informed that the State couldnot prove its case. When asked, "Now, on that day, did you have anoccasion to have the officer give you what is known as a portablebreath testing device outside the police station?", plaintifftestified, "I did not take one, no." When asked whether that wasinside the police station, plaintiff answered, "Yes." When asked,"I'm talking about outside the police station; is that correct?",plaintiff answered, "Yes." When asked, "And did you take thattest?", plaintiff answered, "Yes." Plaintiff testified that theofficer then said that he thought the machine outside was broken,based upon the results, and that he had no way of obtaining aproper result because the machine had been broken.

Plaintiff testified further that the police officer then tookhim to the police station. Inside the police station, the policeofficer said that the breath-testing device in the station was notworking and that he was unable to obtain a complete result becausethe machine was not functioning that night. The officer thenallowed plaintiff to place a telephone call, and plaintiff's mothercame and posted bond for his release. Plaintiff was held on abench while he waited for his mother to arrive. Plaintiff believedthat his mother gave the bond money to the sergeant, who was notthe officer who had arrested him. Plaintiff believed that hismother was then handed some documents. When asked whether thefirst time that plaintiff had seen "Petitioner's Exhibit No. 3" wasafter his mother had received it, plaintiff testified, "Yes."⁽¹⁾ Plaintiff testified that the document was never served on him andwas never read to him. Plaintiff believed that petitioner'sexhibit No. 4, the zero tolerance suspension, was another one ofthe documents that was given to his mother by someone other thanthe police officer. At the time that plaintiff received thedocument from his mother, the document had never been read to him. Neither of the two documents had been read to plaintiff during thecourse of the evening, and the documents were only given to hismother at the end of the evening. Plaintiff did not drink anythingbetween midnight and 2 a.m., he had nothing alcoholic to drink, andhe does not drink alcoholic beverages.

During cross-examination by defendant's attorney, plaintifftestified that he took a portable breath test at the scene. Theofficer did not indicate whether the result was ".9093"; rather,the officer said that it was broken, and he wanted to transportplaintiff to the station to take a test there. At the policestation, the police officer did not read to plaintiff the zerotolerance sworn report or warning to a motorist under the age of21.

Angie Karwowski, plaintiff's mother, testified that on August4, 1999, she went to the Palos Hills police station and met a desksergeant to post bond for plaintiff. The desk sergeant presentedher with petitioner's exhibit No. 3 (presumably the zero tolerancewarning to motorist under 21), petitioner's exhibit No. 4 (the zerotolerance sworn report or suspension), and petitioner's exhibit No.5 (a bond slip). At no time were those documents read toplaintiff, or handed or delivered to him, in her presence. Plaintiff's mother placed the papers in her bag, took them home,and several days later, gave them to plaintiff. The documents werenot served on plaintiff.

During cross-examination, when defendant's attorney askedplaintiff's mother whether plaintiff could have been warned beforeshe arrived at the police station, plaintiff's attorney stipulatedthat plaintiff's mother had no knowledge of what had transpiredbefore she arrived at the police station.

The record contains various documents. However, some of thedocuments, such as the abstract of plaintiff's driving record, werenot legibly reproduced on the photocopies contained in the recordon appeal. Due to poor copy quality, the driving abstract isentirely illegible, one of the traffic citations is largelyobscured and barely legible, and the Intoxilyzer results are notlegible.

The "Zero Tolerance Warning To Motorist Under 21," which wassigned and certified by the arresting officer, Palos Hills policeofficer Patrick Kobal, reflected that the warning was given toplaintiff at 3 a.m. on August 4, 1999. The warning concerned thevarious suspensions that would be imposed for first-time offendersand subsequent offenders for refusing or failing to complete allchemical tests requested, or for submitting to a chemical testdisclosing an alcohol concentration greater than zero.

The "Zero Tolerance Sworn Report," which also was signed andcertified by Officer Kobal, stated that Officer Kobal had stoppedplaintiff for improper lane use, and that upon approachingplaintiff, Officer Kobal detected the strong odor of an alcoholicbeverage on plaintiff's breath and observed that plaintiff had red,glassy eyes. The report stated that plaintiff's driver's licenseand privileges would be suspended for a minimum of six monthsbecause plaintiff "refused to submit or failed to completetesting." The report reflected that Officer Kobal had "[s]ervedimmediate notice of Zero Tolerance Suspension of driving privilegeson the above named person."

The "Order of Zero Tolerance Suspension" reflected thatplaintiff was arrested on August 4, 1999, that the effective datefor the suspension of his driver's license was September 19, 1999,that he was a first offender, and that the provisionalreinstatement date was March 19, 2000.

The record contains a case report signed by Sergeant Hoefler. The case report designates illegal consumption of alcohol as theoffense and 11300 Southwest Highway as the location.

The record also contains an unsigned supplemental report. Thesupplemental report stated that at 2:32 a.m. on August 4, 1999,while on patrol at 111th Street and Southwest Highway, the officerobserved a red Jeep being driven south on Southwest Highway in thecurb lane with both tires on the dotted white line. The officerstopped the vehicle and detected the strong odor of an alcoholicbeverage on the breath of the driver (plaintiff). The officer alsoobserved that plaintiff had red, glassy eyes. The officer askedplaintiff to take a portable breath test, and plaintiff complied. The result of that test was .093. The officer then arrestedplaintiff and transported him to the station for processing. Atthe station, plaintiff was read the "Zero Tolerance Warning toMotorist Under 21" and refused a breath test. Plaintiff wasfurther processed and was released with a court date on August 30,1999, after being charged with consumption of alcohol by a minor,improper lane use, and failure to have a driver's license on hisperson.

A certification of traffic violation disposition from theclerk of the circuit court of Cook County disclosed that citationnumbers Y7-759-028 and Y7-759-029 were dismissed. The date of thecertification was October 1, 1999, but the date of the dismissal isnot visible on the photocopy.

The hearing officer recommended that plaintiff's request torescind the zero tolerance suspension should be denied becauseplaintiff did not complete the breath test at the police station. The hearing officer found that the sworn report notifying plaintiffof the suspension was given to plaintiff's mother at the policestation instead of plaintiff himself, but that this did not requirerescission of the suspension because the case involved a zerotolerance suspension, which did not result from a DUI charge, whichwas not a statutory summary suspension, and which did not have tomeet the same guidelines as a statutory summary suspension. Thehearing officer also found that plaintiff's mother's intent wouldhave been to give the documents to plaintiff at their earliestconvenience. The hearing officer found that the police officer hadprobable cause to believe that plaintiff had consumed an alcoholicbeverage because the officer personally detected the strong odor ofalcohol on plaintiff's breath and personally observed plaintiff'sred, glassy eyes. The hearing officer further found that plaintiffhad refused to take a chemical test or had failed to complete achemical test in that plaintiff had refused to take the test at thestation. The hearing officer also found that the police officerhad served plaintiff with immediate notice of the suspension of hisdriving privileges.

The hearing officer concluded that the police officer hadprobable cause to believe that plaintiff was driving or in actualphysical control of a motor vehicle and that he had consumed anyamount of alcohol. The hearing officer also concluded that thepolice officer had reason to believe that plaintiff was inviolation of any provision of the Illinois Vehicle Code (625 ILCS5/1-100 et seq. (West 2002)) or a similar provision of anordinance. The hearing officer further concluded that the policeofficer cited or arrested plaintiff for the foregoing violation andorally warned him of the consequences prior to requesting that hesubmit to chemical testing to determine his alcohol concentration. Finally, citing the supplemental report, the hearing officerconcluded that plaintiff had refused to take "the [B]reathalyzertest."

On March 15, 2000, defendant adopted the hearing officer'sreport and recommendations and issued an order refusing to rescindthe zero tolerance implied consent suspension of plaintiff'sdriver's license and privileges. Plaintiff then sought judicialreview.

During the hearing in the circuit court, plaintiff's attorneyconceded that she could have served a subpoena upon Officer Kobalto testify at the administrative hearing, but that she did not doso. The assistant Attorney General also informed the court thathis office had not served a subpoena upon the police officerbecause that burden belonged to plaintiff. The circuit courtobserved that the police reports were used to establish probablecause, not to determine guilt, and that it was aware that thecitations had been dismissed. When the circuit court askedplaintiff's attorney whether the citations had been dismissed forlack of probable cause, plaintiff's attorney replied that she couldnot comment because she had not been involved and that the recorddid not reveal the reason for the dismissal. Defendant's attorneyargued that the portable machine which registered .093 at the scenewas broken and that the basis of plaintiff's suspension was hisrefusal to take a breath test at the police station.

On September 7, 2001, the circuit court found that theadministrative decision denying rescission of the zero tolerancesuspension was not arbitrary, capricious, against the manifestweight of the evidence, or in violation of due process. Thecircuit court affirmed the administrative decision.

On appeal, we first address plaintiff's contention that thehearing officer erred in admitting police reports as substantiveevidence. Plaintiff contends that the hearing officer'srecommendation to deny his petition to rescind the zero tolerancesuspension was arbitrary and capricious because it was based solelyupon the hearsay information in the police report and the zerotolerance sworn report, both of which lacked indicia ofreliability. Plaintiff argues that the hearing officer found thatthe zero tolerance sworn report lacked credibility because thearresting officer certified that he served immediate notice uponplaintiff, but the hearing officer found that plaintiff had notpersonally received notice of the suspension. Plaintiff furtherargues that the hearing officer's findings that the police hadreason to believe plaintiff had violated a local ordinance and hadrefused to take the breath test could only have been based upon theinadmissible and unreliable police report and zero tolerancereport, which lacked credibility and reliability.

Defendant responds that section 11-501.8(e) of the IllinoisVehicle Code explicitly authorizes the official reports of thearresting officer to be allowed into evidence at a zero tolerancesuspension hearing. 625 ILCS 5/11-501.8(e) (West 2002).

Section 11-501.8 of the Illinois Vehicle Code (625 ILCS 5/11-501.8 (West 2002)), commonly known as the zero tolerance law,provides that a motorist who is under the age of 21 and who isarrested for any traffic violation will be deemed to consent toalcohol testing if a police officer has probable cause to believethat the motorist consumed any amount of an alcoholic beverage (seePeople v. McKenna, 328 Ill. App. 3d 396, 400-04 (2002) (trial courterred in applying standards under zero tolerance law wherearresting officer and Secretary of State acted pursuant to impliedconsent law)), and that if the motorist refuses testing or submitsto testing disclosing an alcohol concentration of more than 0.00,the police officer will submit a sworn report certifying the sameto the Secretary of State. Section 11-501.8 further provides thatthe Secretary of State will then enter a sanction on the motorist'sdriving record, which would take effect on the forty-sixth dayafter the date the motorist was given notice of the sanction.

In a hearing regarding rescission of a zero tolerancesuspension, the motorist has the right to subpoena the officer, butthe hearing may be held upon a review of the officer's officialreports:

"Provided that the petitioner maysubpoena the officer, the hearing may beconducted upon a review of the law enforcementofficer's own official reports." 625 ILCS5/11-501.8(e) (West 2002).

Similarly, the sworn reports of a law enforcement officer havebeen held to be admissible in a circuit court hearing regardingrescission of a statutory summary suspension for driving under theinfluence (DUI). See People v. Gafford, 218 Ill. App. 3d 492, 498(1991); 625 ILCS 5/2-118.1(b) (West 2002). A court may rely uponthe officer's official reports if the motorist did not subpoena thearresting officer. Gafford, 218 Ill. App. 3d at 498; see alsoPeople v. Moore, 138 Ill. 2d 162, 167 (1990) (court may rely uponofficers' official reports in the absence of the officers). "[A]court or agency may rely to some degree on a sworn police report,so long as the motorist ultimately has an opportunity for cross-examination at an evidentiary hearing." People v. Ullrich, 328Ill. App. 3d 811, 825 (2002). Furthermore, "the motorist's rightto subpoena the officer affords an adequate opportunity for cross-examination in the context of these proceedings." Ullrich, 328Ill. App. 3d at 825.

Pursuant to section 11-501.8(e), and mindful of theadmissibility into evidence of the sworn reports of a lawenforcement officer in a judicial hearing regarding rescission ofa DUI statutory summary suspension and the heightened level ofconcern when the offender is under the age of 21 (see Freed v.Ryan, 301 Ill. App. 3d 952, 957 (1998) (upholding suspension ofdriving privileges of a license holder who was under the age of 21and who used false identification in an effort to consumealcohol)), we hold that the sworn reports of Officer Kobal wereadmissible in evidence in the administrative hearing on plaintiff'spetition to rescind his zero tolerance suspension.

Plaintiff does not contend that he subpoenaed Officer Kobal. Indeed, his attorney conceded in the circuit court that she had anopportunity to subpoena the officer but that she had not availedherself of that opportunity. The hearing officer consequentlycould rely upon Officer Kobal's reports, which stated thatplaintiff smelled strongly of alcohol and that plaintiff's eyeswere red and glassy, and which established that Officer Kobal hadreasonable grounds for requesting that plaintiff take a breathtest. The hearing officer was entitled to rely upon the arrestingofficer's official reports because the motorist, plaintiff, did notsubpoena the arresting officer. The zero tolerance sworn reportreflected that Officer Kobal had served immediate notice of thezero tolerance suspension of driving privileges on plaintiff. Therefore, it was not against the manifest weight of the evidencefor the hearing officer to find that the police officer had servedplaintiff with immediate notice of the suspension of his drivingprivileges. See O'Neil v. Ryan, 301 Ill. App. 3d 392, 400 (1998).

Our conclusion that the hearing officer was entitled to relyupon the police officer's official reports is not inconsistent withUllrich, 328 Ill. App. 3d at 826-27. In Ullrich, a DUI statutorysummary suspension hearing was continued at the State's request toallow the arresting officer to testify. But the arresting officerdid not appear at the continued hearing. A divided panel ofanother division of this district found that the motorist mighthave been unintentionally lulled into believing that he would beable to cross-examine the arresting officer without having obtaineda subpoena, and therefore the trial court's reliance upon thearresting officer's unsworn reports and upon hearsay in theofficer's sworn report violated the motorist's right to due processof law. Furthermore, a discrepancy in the name of the arrestingofficer could have posed an obstacle to a subpoena in that case. Ullrich, 328 Ill. App. 3d at 826 n.7. In the present case, therewas no evidence of an obstacle to a subpoena. More importantly,there was no indication that plaintiff was lulled into believingthat he would be able to cross-examine Officer Kobal without asubpoena. Nor was there any indication that plaintiff did notknowingly, voluntarily, and intentionally waive his right tosubpoena Officer Kobal. Therefore, the due process considerationsexpressed in Ullrich are not implicated here.

Plaintiff contends next that the zero tolerance suspensionstatute required immediate service of the written notice of thesuspension upon him, not his mother. Plaintiff argues that thestatute contained no provision for substitute service and that,therefore, the hearing officer erred in finding that service of thenotice upon his mother was proper. Plaintiff argues that he was 18years old and that his mother did not have legal authority toaccept service on his behalf.

Defendant responds that plaintiff received prompt and actualnotice of the suspension, that plaintiff filed a petition torescind the suspension 21 days after his arrest, and thatplaintiff's argument that the suspension must be rescinded becausethe written notice was handed to his mother instead of to himelevates form over substance. Defendant argues that section 11-501.8(d) does not require rescission of a suspension if someoneother than the motorist is served with the written notice but themotorist received actual notice of the suspension in time tochallenge it.

Section 11-501.8 states:

"The law enforcement officer submittingthe sworn report shall serve immediate noticeof this driver's license sanction on theperson and the sanction shall be effective onthe 46th day following the date notice wasgiven." 625 ILCS 5/11-501.8(d) (West 2002).

Here, the official law enforcement reports, upon which thehearing officer could rely in the absence of a subpoena issued tothe police officer, reflect that Officer Kobal served immediatenotice of the zero tolerance suspension on plaintiff.

Moreover, the parties have applied criteria of the impliedconsent law (625 ILCS 5/11-501.1(a) (West 2002)), which, althoughan independent statutory scheme from the zero tolerance law (625ILCS 5/11-501.8 (West 2002); see McKenna, 328 Ill. App. 3d at 402; see also People v. Schmidt, 286 Ill. App. 3d 322, 324 (1997)(judicial driving permit (JDP) was available for a statutorysummary suspension but not for a zero tolerance suspension, andtherefore the trial court had no authority to issue a JDP for asuspension which was a combination zero tolerance suspension andstatutory summary suspension)), may be instructive here. Forexample, in People v. Lent, 276 Ill. App. 3d 80, 80 (1995), thedefendant was arrested for DUI. A jail official, rather than thearresting officer, served the defendant with the notice of thestatutory summary suspension. The applicable statute in Lent wassection 11-501.1(f) of the Illinois Vehicle Code (625 ILCS 5/11-501.1(f) (West 1994)), which contained very similar language to thestatute at issue in this case. Section 11-501.1(f) provided that"[t]he law enforcement officer submitting the sworn report underparagraph (d) shall serve immediate notice of the statutory summarysuspension on the person." 625 ILCS 5/11-501.1(f) (West 1994). The court found that the defective service was merely a formaldefect and that rescission of the defendant's suspension "'wouldunfairly tip the balance in favor of the drivers' rights at theexpense of public safety.'" Lent, 276 Ill. App. 3d at 82, quotingPeople v. Steder, 268 Ill. App. 3d 44, 47 (1994) (arrestingofficers' failure to fill out receipts on the back of summarysuspension notices constituted formal defect which did not warrantrescission of summary suspension).

Similarly, in the present case, plaintiff's mother went to thepolice station on the date of his arrest to post bail for him. Thepolice officer handed the written notice of the suspension toplaintiff's mother instead of plaintiff. Despite the defect in themanner of service of the notice, plaintiff was not deprived of anysubstantial right. Plaintiff received prompt and actual notice ofthe suspension and his right to request a rescission hearing. Plaintiff acted upon that notice 21 days after his arrest by filinga petition to rescind the suspension. Under all of thesecircumstances, the absence of formal notice did not depriveplaintiff of due process or prejudice him (cf. In re C.E., 161 Ill.2d 200, 226-27 (1994) (absence of formal notice regardingproceedings for involuntary drug treatment did not prejudicerecipient of mental health services who had actual knowledge of theproceedings)), and rescission would unfairly reward him at theexpense of public safety (see Lent, 276 Ill. App. 3d at 82, quotingSteder, 268 Ill. App. 3d at 47).

Plaintiff next contends that there was no evidence that herefused or failed to complete the breath test. Plaintiff arguesthat he underwent a portable breath test, which the police officersurmised was not working properly. Plaintiff argues that he wasthen transported to the police station, where he was willing tosubmit to another breath test, but that the machine at the policestation also was not working properly. Plaintiff argues that noevidence was presented to rebut his testimony that the equipmentwas not working. Plaintiff argues that the hearing officer'sfinding that he refused or failed to complete a breath testcontravened the manifest weight of the evidence.

Defendant responds that plaintiff's zero tolerance suspensionwas based upon plaintiff's refusal to take a breath test, not theresult of a breath test. Defendant argues that there consequentlywas no need to prove that the machine at the police station wasworking properly.

Administrative findings are considered prima facie true andcorrect (735 ILCS 5/3-110 (West 2002)), and a court may not disturbthe administrative decision unless it is against the manifestweight of the evidence or is arbitrary and capricious (O'Neil, 301Ill. App. 3d at 400; Fitzpatrick v. Edgar, 158 Ill. App. 3d 966,968-69 (1987)). "If the record contains any evidence which fairlysupports the agency's decision, such decision is not against themanifest weight of the evidence and must be sustained upon review." Conklin v. Ryan, 242 Ill. App. 3d 32, 37 (1993). A court of reviewwill not find the administrative decision to contravene themanifest weight of the evidence unless no rational trier of factcould agree with the administrative decision after viewing theevidence in the light most favorable to defendant. O'Neil, 301Ill. App. 3d at 400; Conklin, 242 Ill. App. 3d at 37; Fitzpatrick, 158 Ill. App. 3d at 969. A decision contravenes themanifest weight of the evidence only when the opposite conclusionis clearly evident. Sanchez v. Ryan, 315 Ill. App. 3d 1079, 1082,1086 (2000).

Here, plaintiff's testimony regarding the breath tests wasambiguous and was contradicted by the police officer's officialreports. The police officer's official reports, which we havealready determined could be and were relied upon by the hearingofficer, disclosed that although plaintiff took a breath test witha portable machine at the scene of his arrest, plaintiff refused totake a breath test when requested to do so at the police station. Given plaintiff's refusal to submit to a breath test at the policestation, there was no need for defendant to prove that the machineat the police station was operational. We cannot say thatdefendant's decision was arbitrary, capricious, or contrary to themanifest weight of the evidence.

For all of the foregoing reasons, the judgment of the circuitcourt is affirmed.

Judgment affirmed.

BURKE and GARCIA, JJ., concur.

1. It is not clear from the transcript which document comprisedthat exhibit. However, one of the photocopies of the "ZeroTolerance Warning to Motorist Under 21" contains the handwrittennotation, "PET 3."