Find Legal Information

No. 3--01--0336

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE SLATER delivered the opinion of the court:

The defendant, Sean C. Donnelly, was arrested for drivingunder the influence of alcohol (625 ILCS 5/11--501(a)(2) (West2000)) on January 28, 2001. His driver's license was summarilysuspended based on the arrest. The defendant filed a motion todismiss his summary suspension, which was denied. The defendantappealed. We affirm.

The defendant filed a motion to dismiss his statutorysummary suspension on March 14, 2001, the day before the suspension began. In his motion, the defendant alleged that the policeofficer's sworn report was defective because it did not indicatethe method of service.

A hearing was held on the defendant's motion on March 15,2001. At the hearing, the defendant presented the sworn report. The report indicated that the defendant was served notice of hissummary suspension on January 28, 2001. However, neither the boxon the report which indicated the defendant was served withpersonal notice of the suspension, nor the box which indicatedthat the defendant was served with notice of the suspension bymail was marked.

The State presented the testimony of Illinois State PoliceTrooper Shrake, the officer who arrested the defendant. Thetrooper testified that he served the defendant with notice of hissummary suspension on the date that he arrested the defendant fordriving under the influence. He did not mark either box regarding method of service on the bottom of the sworn report, nor didhe ever attempt to amend the report after it was submitted to theSecretary of State's office.

Judge Thomas Dunn found that the officer's sworn report wasnot defective and dismissed the defendant's motion.

On March 19, 2001, the defendant filed a motion to strikethe officer's sworn statement on the grounds that it was notfiled in accordance with Supreme Court Rule 137 (155 Ill. 2d R.137). After hearing the defendant's argument, Judge RaymondBolden denied the defendant's motion.

The defendant now appeals the dismissal of both his motions.

The defendant first argues that his statutory summarysuspension should be dismissed because the police officer's swornreport was defective and this defect deprived the court ofjurisdiction over him.

Under Illinois law, if a driver is arrested for drivingunder the influence, his driver's license is summarily suspended. 625 ILCS 5/11--501.1(c) (West 2000). By statute, this suspensionbegins 46 days after the defendant receives notice that hislicense will be suspended. 625 ILCS 5/11--501.1(g) (West 2000). When a police officer writes a citation for driving under theinfluence, he is also required to serve the driver with noticethat his license will be summarily suspended. 625 ILCS 5/11--501.1(f) (West 2000). The police officer files a sworn reportindicating the defendant's blood alcohol content with the Secretary of State's office. 625 ILCS 5/11--501.1(d) (West 2000). Once this report is received by the Secretary of State's office,that office confirms the statutory summary suspension by mailingthe defendant a notice of the effective date of the suspension. 626 ILCS 5/11--501.1(h) (West 2000). If an officer fails toindicate in the sworn report when the defendant was served withnotice of the statutory summary suspension, the report is defective and the court is deprived of jurisdiction. People v.Palacios, 266 Ill. App. 3d 341, 640 N.E.2d 657 (1994).

The defendant, relying on Palacios, contends that the swornreport was defective because it did not indicate whether he wasserved in person or by mail. He argues that this defect deprivedthe court of jurisdiction and rendered his statutory summarysuspension void.

In Palacios, the defendant was arrested for driving underthe influence. The sworn report completed by the police officerdid not indicate either the day that notice was served or how thedefendant was served with notice. Nevertheless, the Secretary ofState's office, upon receipt of the report, assumed that thedefendant was given notice on the arrest date listed on thereport. The Secretary of State's office notified the defendantthat his license would be suspended. The defendant contested thesuspension, arguing that he was not given notice of the summarysuspension. The appellate court held that a sworn report thatdid not indicate when the defendant was served with notice of thestatutory summary suspension was defective. Palacios, 266 Ill.App. 3d 341, 640 N.E.2d 657. The court concluded that the swornreport did not provide a sufficient basis for summary suspensionof the defendant's driving privileges and affirmed the trialcourt's rescission of the suspension. Palacios, 266 Ill. App. 3d341, 640 N.E.2d 657.

The instant case is distinguishable from Palacios. Here,unlike Palacios, the sworn report indicated that the defendantwas served with notice of his statutory summary suspension onJanuary 28, 2001, the date of his arrest. The Secretary ofState's office had a sufficient basis for suspending the defendant's driving privileges. Therefore, we agree with the trialcourt that the sworn report was not defective and the court hadjurisdiction over the defendant.

The defendant next argues that his suspension should bedismissed because the sworn report did not comply with SupremeCourt Rule 137. This rule requires that all pleadings, motionsand "other papers" filed in the court be signed by a party or aparty attorney. 155 Ill. 2d R. 137. The State is required tocomply with this rule just like any other litigant. 155 Ill. 2dR. 137.

The defendant asserts, citing Palacios, that in a statutorysummary suspension proceeding, the police officer's sworn reportacts like a complaint in a civil case in that it initiates thedefendant's driver's license suspension. Palacios, 266 Ill. App.3d 341, 640 N.E.2d 657. The sworn report, he argues, is an"other paper" within the meaning of Supreme Court Rule 137. Since it is the State and not the police officer who is a partyto the statutory summary suspension action, the defendant contends that the officer's signature on the report does not meetthe requirements of Rule 137. The defendant concludes that thelack of an attorney's signature requires that the sworn report bestricken.

The defendant's argument is not persuasive. The statutorysummary suspension of a driver's license is an administrativeaction taken by the Secretary of State's office to keep dangerousdrivers off the roads. People v. Lent, 276 Ill. App. 3d 80, 657N.E.2d 732 (1995). The police officer's sworn report is theaction which begins the administrative process of a driver'slicense suspension. It does not initiate any court proceeding. In fact, it is the defendant's motion to rescind a statutorysummary suspension that begins any court proceeding on thematter. We hold that the police officer's sworn report is not apleading or "other paper" within the meaning of Supreme CourtRule 137. Therefore, the trial court properly dismissed thedefendant's motion to strike.

For the foregoing reasons, the judgment of the circuit courtof Will County is affirmed.

Affirmed.

McDADE, J., concurs.

JUSTICE HOLDRIDGE, dissenting;

I would find that the trial court erred in denying thedefendant's motion to strike the officer's sworn report pursuantto Supreme Court Rule 137. 155 Ill. 2d 137. I therefore respectfully dissent.

On appeal, the defendant relies upon People v. Badoud, 122Ill. 2d 50, 521 N.E.2d 884 (1988), and People v. Palacios, 266Ill. App. 3d 341, 640 N.E.2d 657 (1994), for the proposition thatthe officer's sworn report in a summary suspension proceeding isanalogous to a complaint in an ordinary civil proceeding. Thedefendant reasons that because the officer is an agent of theState, and the State is represented by an attorney, the swornreport must be signed by an attorney for the State in compliancewith Rule 137. I agree.

The court in Badoud indicated that in a proceeding torescind a summary suspension, an officer's sworn report serves afunction analogous to a complaint in an ordinary civil proceeding. Badoud, 122 Ill. 2d 50, 521 N.E.2d 884. In Palacios, thiscourt stated that the officer's sworn report plays a unique rolein a summary suspension hearing because, like a complaint in acivil case, it is the jurisdictional step that starts the proceeding. Palacios, 266 Ill. App. 3d 341, 640 N.E.2d 657.

In the present case, the officer's sworn statement was thefirst jurisdictional step in a civil summary suspension proceeding. The officer was an agent of the State of Illinois, which isrepresented by the office of the State's Attorney. The officer'ssworn statement is a pleading, motion, or other paper of a partyrepresented by the State's Attorney. Therefore, under Rule 137,I would find that this pleading, motion, or other paper must besigned by a State's Attorney or it may be stricken.

I do not believe that requiring the State's Attorney to signan officer's sworn statement represents an onerous burden on lawenforcement officers. Rule 137 already requires the officer tosubmit a copy of the sworn statement to the circuit court ofvenue and the Secretary of State. I would hold that the plainlanguage of Rule 137 requires this pleading, motion, or otherpaper in a civil matter to be signed by the attorney of record,who is the State's Attorney, before being submitted to thecircuit court.

I note that Rule 137 also permits the absence of an attorney's signature on a pleading, motion, or other paper to be curedby the prompt signature of the attorney of record as soon as theomission is brought to the attention of that attorney. In thiscase, I would reverse the denial of the defendant's motion tostrike and remand the matter to the circuit court with instructions that the State's Attorney may promptly sign the officer'ssworn statement as soon as this omission is brought to theState's Attorney's attention.

For the foregoing reasons, I would reverse the ruling of theWill County circuit court and remand the matter with directions. I therefore dissent.