Find Legal Information

PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

The State appeals the trial court's order granting thepetition of defendant, Christopher Wiley, to rescind the summarysuspension of his driver's license. The State contends that thecourt erred when it granted the petition without requiringdefendant to present any evidence. We reverse and remand.

Defendant was charged with driving under the influence ofalcohol (625 ILCS 5/11--501(a)(2) (West 2000)). The arrestingofficer served him with a notice of the statutory summarysuspension of his driver's license. Defendant petitioned torescind the summary suspension. He subpoenaed videotapes of hisarrest but did not subpoena the arresting officer.

A hearing on defendant's petition was set for May 4, 2001, butdefendant sought and received a continuance to June 12, 2001. OnJune 12, defense counsel moved for another continuance but withdrewhis motion when he noticed that the police officer was not in thecourtroom. Defense counsel and the prosecutor stated that theywere ready to proceed. The assistant State's Attorney told thetrial court that he would stand on the officer's sworn reportbecause the officer was not present in court that day.

The trial court responded that the State could not "just standupon the sworn report" and that "this procedure had never occurredin the past in this Court." The prosecutor replied that the Statewas allowed to stand on the officer's sworn report when defendanthad not subpoenaed the officer. The court reiterated that it wouldnot allow such a procedure, turned to defense counsel and stated,"You win, draw the order."

The State filed a timely notice of appeal. The prosecutorlater submitted a draft of a bystander's report to the trial courtfor approval. The court said that it would give the State anopportunity to proceed to a hearing on defendant's petition. Theprosecutor declined, stating that the court no longer hadjurisdiction because the State had filed a notice of appeal.

On appeal, the State contends that the trial court erred whenit summarily granted defendant's petition without requiringdefendant to present a prima facie case for rescission. A hearingon a petition to rescind a statutory summary suspension of drivingprivileges is a civil proceeding. People v. Smith, 172 Ill. 2d289, 294-95 (1996); People v. Schaefer, 154 Ill. 2d 250, 257(1993). The defendant bears the burden of proof and, if he or sheestablishes a prima facie case for rescission, the burden thenshifts to the State to come forward with evidence justifying thesuspension. Smith, 172 Ill. 2d at 295; People v. Orth, 124 Ill. 2d326, 341 (1988). At the hearing, the State may proceed solely onthe officer's sworn report. 625 ILCS 5/2--118.1(b) (West 2000).

Although not cited by either party, People v. Johnson, 186Ill. App. 3d 951 (1989), and People v. Clayton, 201 Ill. App. 3d163 (1990), are virtually indistinguishable from this case. InJohnson, this court held that the trial court erred when itsummarily granted the defendant's petition to rescind his summarysuspension on the basis of a local court rule that required thearresting officer's appearance at an arraignment. We held that thelocal rule could not conflict with the state statute and that thecourt should have permitted the State to proceed with the hearingdespite the officer's absence. Johnson, 186 Ill. App. 3d at 954.

In Clayton, the Fourth District followed Johnson. The courtobserved that the defendant bore the burden of proof in arescission proceeding, that the officer had not been subpoenaed,but that he was not required to appear. Accordingly, the courtheld that his absence was not a reason to summarily grantdefendant's petition. Clayton, 201 Ill. App. 3d at 165. Evenwhere a defendant does subpoena an officer and the officer fails toappear, the remedy is to grant a continuance to secure theofficer's presence, not to summarily grant defendant's petition. People v. Tran, 319 Ill. App. 3d 841, 843 (2001).

Here, the trial court erred when it summarily granteddefendant's petition without requiring him to establish a primafacie case for rescission. Defendant did not subpoena the officer,and section 2--118.1(b) allowed the State to proceed solely on theofficer's sworn report.

Defendant objects, however, that the sworn report in this caseis deficient because it does not state that defendant was drivingor in actual physical control of a motor vehicle when he wasarrested. In a summary suspension rescission hearing, the trialcourt may consider deficiencies in the sworn report. People v.McClain, 128 Ill. 2d 500, 505 (1989).

We agree with the State that it is doubtful whether the reportcan be considered deficient on this basis given its recitation thatthe officer had reasonable grounds to believe that defendant wasviolating section 11--501 of the Illinois Vehicle Code. To violatethat section, a defendant must be driving or in actual physicalcontrol of a vehicle. See 625 ILCS 5/11--501(a) (West 2000). Moreover, the sworn report need only certify that defendant wasasked to take a sobriety test and refused and need not recite factssupporting a defendant's arrest. People v. Sarver, 262 Ill. App.3d 513, 514 (1994); see also 625 ILCS 5/11--501.1(d) (West 2000).

In any event, defendant's argument is premature because thetrial court was never asked to consider and, in fact, all but saidthat it would not consider, the sworn report. Even if the courtconsidered the report and found it to be defective, the State wouldhave to be given an opportunity to cure the defect. People v.Steder, 268 Ill. App. 3d 44, 46 (1994). For all these reasons, anyalleged omission in the sworn report could not be the basis forsummarily granting defendant's petition.

Defendant also contends that this case is moot because thetrial court offered to proceed with a hearing after the State hadfiled its notice of appeal. A case is moot where an actualcontroversy no longer exists or it is impossible to grant effectiverelief to either party. Johnson v. Du Page Airport Authority, 268Ill. App. 3d 409, 414 (1994). Clearly, this court can grant theState effective relief by remanding the cause for a proper hearing. Although the trial court offered to proceed to a hearing, it lackedjurisdiction to do so at the time because the State had alreadyfiled its notice of appeal. Of course, the State could havedismissed its appeal (see 134 Ill. 2d R. 309), but it was notrequired to do so. Defendant cites no authority for theproposition that a trial court may force a party to abandon itsappeal by belatedly offering to reconsider the appealed-from order.

For the foregoing reasons, the judgment of the circuit courtof De Kalb County is reversed, and the cause is remanded forfurther proceedings.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.