City of Highland Park v. Bryan

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Appellate Court Date: 2019.08.12

14:02:07 -05'00'

City of Highland Park v. Bryan, 2019 IL App (2d) 180662

Appellate Court THE CITY OF HIGHLAND PARK, Plaintiff-Appellee, v.

Caption DEMITRIUS BRYAN, Defendant-Appellant.

District & No. Second District

Docket No. 2-18-0662

Filed May 31, 2019

Decision Under Appeal from the Circuit Court of Lake County, No. 18-DT-525; the

Review Hon. Charles D. Johnson, Judge, presiding.

Judgment Affirmed.

Counsel on Brett Cronson and Christopher Cronson, of Cronson & Cronson, Ltd.,

Appeal of Waukegan, for appellant.

Brian G. Smith, of LaLuzerne & Smith, Ltd., of Waukegan, for

appellee.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Presiding Justice Birkett and Justice Burke concurred in the judgment

and opinion.

OPINION

¶1 Defendant, Demetrius Bryan, appeals the order of the circuit court of Lake County denying

his petition to rescind the statutory summary suspension of his driving privileges pursuant to

section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West

2016)). We affirm.

¶2 I. BACKGROUND

¶3 Defendant submitted an agreed statement of facts in lieu of transcripts of proceedings,

pursuant to Illinois Supreme Court Rule 323(d) (eff. July 1, 2017). We take the following facts

from that statement as well as the common-law record.

¶4 On April 8, 2018, at 2:59 a.m., Officer Daniel Norton of the Highland Park Police

Department initiated a traffic stop of defendant’s automobile, based on an expired vehicle

registration. Upon approaching the car, Norton smelled alcohol and observed an open can of

beer in the center console. He investigated defendant for signs of alcohol-related impairment

and then arrested him for driving under the influence (DUI) of alcohol, in violation of section

11-501(a)(2) of the Vehicle Code. 625 ILCS 5/11-501(a)(2) (West 2016). Norton transported

defendant to the Highland Park police station.

¶5 At the station, Norton requested that defendant submit to a breath test to determine his

blood-alcohol content, and he served defendant with a warning as required by section 11-

501.1(c) of the Vehicle Code. 625 ILCS 5/11-501.1(c) (West 2016). The warning, which

defendant signed, stated that defendant’s refusal to submit to the test would result in a

minimum 12-month suspension of his driving privileges. Thereafter, defendant refused to

submit to a breath test. Based on his refusal, Norton served defendant with notice of the

statutory summary suspension of his driving privileges. 625 ILCS 5/11-501.1(f) (West 2016).

¶6 On April 12, 2018, defendant filed his petition to rescind the statutory summary

suspension, pursuant to section 2-118.1 of the Vehicle Code. 625 ILCS 5/2-118.1 (West 2016).

In his petition, defendant challenged the suspension on five grounds: (1) he was not properly

placed under arrest for DUI, (2) Norton did not have reasonable grounds to believe that he was

driving under the influence, (3) Norton did not warn him as required by section 11-501.1 of

the Vehicle Code, (4) he did not refuse Norton’s request for him to take the test, and (5) he

took the requested test, but it did not indicate a blood-alcohol concentration of 0.10 or more. 1

¶7 On June 1, 2018, the trial court held a hearing on the petition to rescind. Norton testified,

acknowledging that he did not include all of the information that was in his law enforcement

sworn report in the notice that he served on defendant. The information included in the sworn

report but not contained in the notice was (1) the place of refusal (the Highland Park Police

Department), (2) the refusal date (April 8, 2018), and (3) a checkmark in a box that indicated

that defendant refused the test and that his driving privileges would be suspended for a

minimum of 12 months. According to the agreed statement of facts, Norton was unsure of how

the missing information was added to his sworn report after he served defendant with the

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Defendant filed his petition to rescind using a preprinted form that apparently predated the 1997

public act that reduced the blood-alcohol concentration limit in Illinois from 0.10 to 0.08. See Pub. Act

90-43 (eff. July 2, 1997) (amending 625 ILCS 5/1-203.1).

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notice; he could not recall whether he personally filled in the remaining information or whether

a colleague assisted him in completing the document.

¶8 At the hearing, defendant attacked the sufficiency of the notice, arguing that it was deficient

because it did not include the length of his suspension, the reason for his suspension, or the

date and place where he refused to submit to a chemical test. These deficiencies, according to

defendant, violated his due process rights and the immediate-notice requirement of section 11-

501.1 of the Vehicle Code. The record does not reflect that defendant argued any other issues,

including any of those outlined in his petition. The City of Highland Park (City) responded that

the notice adequately informed defendant of the impending suspension because it contained

the date of the notice, defendant’s name, and that the suspension would take effect 46 days

after the date of the notice. The City additionally argued that the sworn report sent to the

Secretary of State (Secretary) complied with the requirements of section 11-501.1 because it

contained all of the information the Secretary needed to effectuate the suspension.

¶9 The trial court found that the notice, while incomplete, did not fail to comply with the

requirements of section 11-501.1 of the Vehicle Code. On June 1, 2018, the court denied

defendant’s petition to rescind the statutory summary suspension.

¶ 10 In his motion to reconsider, defendant reiterated that the notice was defective. He added

that the sworn report was likewise defective because (1) a second officer supplemented the

report with information after Norton had signed it and (2) the second officer did not swear to

the new information. According to defendant, this subverted “the entire notion and purpose of

a law enforcement sworn report.” In the “Facts” section of his memorandum supporting his

motion to reconsider, defendant stated:

“It is apparent to this writer’s untrained eye that the way the boxes are checked off

and the handwriting and numbers are filled in on the ‘updated’ report that two people

contributed data into the report. There are not two signatures affixed pursuant to

Section 1-109 of The Code of Civil Procedure swearing to the accuracy of the

information contained therein.”

On July 20, 2018, the court denied defendant’s motion to reconsider. Defendant timely

appealed.

¶ 11 II. ANALYSIS

¶ 12 Defendant argues that we should reverse the trial court’s rulings denying his petition to

rescind and his motion to reconsider because (1) his notice of the statutory summary

suspension was defective, (2) the “Law Enforcement Sworn Report” was not sworn in

accordance with section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109 (West

2016)), and (3) actions taken by the Highland Park Police Department were “in derogation” of

section 11-501.1 of the Vehicle Code.

¶ 13 The City responds that defective notice is not a statutory ground to rescind a suspension

under section 2-118.1 of the Vehicle Code and that, even if the claim were permissible,

defendant received adequate notice that made him aware of the essential facts for challenging

the suspension. The City further asserts that defendant did not challenge the accuracy of the

information in the sworn report and, thus, failed to establish a prima facie case for rescission.

As to defendant’s final argument, the City maintains that the Highland Park police fulfilled the

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requirements of the statutory scheme and that defendant confuses and conflates certain

requirements of section 11-501.1.

¶ 14 At a statutory summary suspension hearing, the defendant bears the burden of establishing

a prima facie case for rescission by a preponderance of the evidence. People v. Clayton, 2014

IL App (4th) 130340, ¶ 17. Only after the defendant has established a prima facie case does

the burden shift, and at that point, the State must come forward with evidence that justifies the

suspension. Clayton, 2014 IL App (4th) 130340, ¶ 17. We defer to the trial court’s factual

findings but review de novo its decision granting or denying a petition to rescind a statutory

summary suspension. Clayton, 2014 IL App (4th) 130340, ¶ 17.

¶ 15 Section 11-501.1(a) of the Vehicle Code provides that a motorist driving on public

highways in Illinois consents to a chemical test to determine his or her blood-alcohol

concentration. 625 ILCS 5/11-501.1(a) (West 2016). When an officer has probable cause to

believe that the motorist is under the influence of alcohol, he or she shall request that the

motorist submit to a chemical test. 625 ILCS 5/11-501.1(a) (West 2016). The officer must

warn the motorist that a refusal to submit to the test will result in the statutory summary

suspension of the motorist’s driving privileges. 625 ILCS 5/11-501.1(c) (West 2016). If the

motorist refuses the test, the officer submits a sworn report so stating to the circuit court of

venue and the Secretary (625 ILCS 5/11-501.1(d) (West 2016)) and serves notice of the

statutory summary suspension on the motorist (625 ILCS 5/11-501.1(f) (West 2016)). The

Secretary confirms the suspension by mailing the motorist notice of the effective date of the

suspension (625 ILCS 5/11-501.1(h) (West 2016)), which is the forty-sixth day following the

date that the officer served the motorist with notice (625 ILCS 5/11-501.1(g) (West 2016)). If

the officer forwards a defective sworn report to the Secretary, the Secretary does not confirm

the suspension but remits the defective report to the court of venue and copies the issuing

agency, explaining the reasons for the deficiency. 625 ILCS 5/11-501.1(h) (West 2016).

¶ 16 A. Notice of Statutory Summary Suspension

¶ 17 Defendant contends that his notice of the 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.” He argues that the notice must contain at least the minimal

information that the Secretary requires in the sworn report. Defendant insists that his notice

fell “woefully short” as to what privilege was at stake, for how long, and why, because Norton

left several spaces blank in the preprinted notice form: (1) the minimum duration of the

suspension based on his refusal of the test, (2) the place of the refusal, and (3) the date of the

refusal.

¶ 18 Defendant conceded at oral argument that there is no authority that explicitly enumerates

specific minimum requirements for a notice of a statutory summary suspension. He argues,

however, that section 11-501.1 “implicitly” requires that the arresting officer include the same

information in the notice as is required in the sworn report. In support of this contention,

defendant cites People v. Palacios, 266 Ill. App. 3d 341 (1994). In Palacios, however, the

court addressed a defective sworn report, not a defective notice. Palacios, 266 Ill. App. 3d at

342. The issue before the court was whether the sworn report was defective because the

arresting officer failed to include the date upon which he gave the defendant notice of the

summary suspension. Palacios, 266 Ill. App. 3d at 342. After noting that the record contained

no evidence that the defendant was given actual notice, the court concluded that the statute

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implicitly required that the sworn report include the date of the notice because section 11-

501.1(g) of the Vehicle Code (625 ILCS 5/11-501.1(g) (West 2016)) directs that the suspension

begins on the forty-sixth day following the date of the notice. Palacios, 266 Ill. App. 3d at 343.

“Clearly, unless the sworn report indicates to the Secretary the date upon which notice of

suspension was given, the Secretary would be unable to impose the suspension 46 days later.”

Palacios, 266 Ill. App. 3d at 343. Contrary to defendant’s contention, Palacios did not hold

that the statute implicitly requires any specific information in the notice. Consequently,

Palacios is inapposite.

¶ 19 In addition to misstating the holding in Palacios, defendant conflates the notice and the

sworn report, using the terms interchangeably throughout his entire argument. He discusses

information that he says is missing from the notice but then argues that the sworn report is

“facially defective” as a result of the missing information. By confusing the notice with the

sworn report and supporting his argument with only inapposite authority, defendant fails to

articulate a cogent legal argument supported by authority as required by Illinois Supreme Court

Rule 341(h)(7) (eff. May 25, 2018). Accordingly, defendant has forfeited this argument.

Forfeiture, however, is a restriction on the parties, not this court; we may overlook forfeiture,

and we do so here. Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003,

1028 (2009) (“forfeiture is a limitation on the parties, not on the court, and the court may

overlook forfeiture where necessary to obtain a just result or maintain a sound body of

precedent”).

¶ 20 The City counters that a defective notice is not a sufficient ground for a petition to rescind.

We agree. Section 2-118.1 of the Vehicle Code allows a motorist to file a petition to rescind

his or her summary suspension. 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 2016). In addition to these four grounds, our supreme court has

recognized a fifth ground whereby the trial court may also consider defects in the officer’s

sworn report. People v. Badoud, 122 Ill. 2d 50, 54 (1988). Here, defendant overlooks that the

notice of the summary suspension is not part of the sworn report. People v. Lent, 276 Ill. App.

3d 80, 82 (1995). Consequently, defendant’s attempt to elevate an alleged technical defect in

his notice to a valid ground for rescission of his summary suspension must fail. Cf. Clayton,

2014 IL App (4th) 130340, ¶ 21 (the narrow exception to consider defects in a sworn report is

not triggered when the alleged defects are in the defendant’s notice, not the officer’s sworn

report).

¶ 21 Even if the information missing from the notice could be construed as a defective sworn

report, defendant’s argument would still fail. Defendant acknowledges that he received a

document labeled “Notice Of Summary Suspension/Revocation” on April 8, 2018, which is

the date of his notice recorded in the sworn report and also the date of his arrest. Prior to his

refusal of the test, defendant was given a written warning that a refusal would result in a

minimum 12-month suspension of his driver’s license. The notice additionally informed

defendant of his DUI case number, his arrest date, his date of notice, and a detailed narrative

of why he was stopped and arrested. The notice included a bold paragraph that read:

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“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.”

Thus, contrary to defendant’s suggestion that the notice was a “mere *** piece of paper ***

with a date and [an] officer’s signature,” defendant was thoroughly informed of the impending

suspension, the reasons therefor, and its length. Indeed, defendant received actual and

immediate notice on April 8, 2018, which is reflected in the sworn report. Under these

circumstances, we would be hard-pressed to disturb the decision of the trial court and hold that

these technical defects in the notice warranted rescission. Cf. Clayton, 2014 IL App (4th)

130340, ¶ 23 (rescission not warranted when the defendant’s copy of the notice provided him

with actual notice of the suspension on the date of his arrest).

¶ 22 B. Sworn Report

¶ 23 Defendant next argues that Norton submitted an improperly sworn report that cannot

support his suspension. In his brief, defendant contends that two officers completed different

parts of the sworn report but that only one officer signed the report. Thus, according to

defendant, the report was not properly sworn pursuant to section 1-109 of the Code. Defendant

clarified his position at oral argument: “Our contention is that any information that was

provided after Officer Norton affixed his signature to it—any information that was provided

after that is not sworn information.”

¶ 24 Defendant correctly notes that section 1-109 of the Code governs the proper procedure for

swearing to a sworn report. Our supreme court has likened the sworn report to a complaint in

a civil proceeding. Badoud, 122 Ill. 2d at 54. In a civil proceeding, a complaint is “sworn” if it

is certified in accordance with section 1-109 of the Code, which reads in relevant part:

“The person or persons having knowledge of the matters stated in a pleading ***

shall subscribe to a certification in substantially the following form: Under penalties

as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the

undersigned certifies that the statements set forth in this instrument are true and correct

***.” (Emphasis added.) 735 ILCS 5/1-109 (West 2016).

¶ 25 Here, Norton’s certification in the sworn report substantially complied on its face with

section 1-109 of the Code. The text immediately above his signature reads:

“Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil

Procedure, the undersigned certifies that the statements set forth in this instrument are

true and correct.” (Emphasis added.)

Notwithstanding Norton’s signature, defendant argues that the information that he maintains

was added after Norton affixed his signature was never properly sworn.

¶ 26 Assuming, arguendo, that defendant has demonstrated that a second person added

information to the sworn report after Norton signed it, the focus then shifts to the manner in

which this new information could be properly certified. Defendant suggests in his brief that

the report should have been signed by the second person. At oral argument, he offered two

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additional possibilities: Norton could have written on the report that he adopted the new

information, or he could have completed an entirely new report and then sworn to that

information. There is another method of certification, however, that defendant does not raise.

It is well established that a law enforcement officer’s initial failure to swear to a sworn report

can be cured by an affirmation of its contents in open court. See Badoud, 122 Ill. 2d at 58; see

also People v. Gaddi, 145 Ill. App. 3d 227, 231 (1986); People v. Newberry, 121 Ill. App. 3d

1069, 1072 (1984); People v. Rehfeldt, 103 Ill. App. 3d 368, 371 (1982). In Badoud, our

supreme court considered the “seriousness of the public hazard” that the summary suspension

statute was meant to address, and it thus concluded that “the General Assembly intended an

officer’s good-faith failure to initially swear to the report to be curable.” Badoud, 122 Ill. 2d

at 59-60.

¶ 27 Here, Norton testified at the hearing on defendant’s petition to rescind. The information in

the record regarding his testimony comes not from a transcript of the proceedings but from the

agreed statement of facts. Norton answered probing questions about the manner in which the

forms were completed. Norton was unable to recall whether he or another officer filled in the

additional information. The record is clear, however, that as the arresting officer who

shepherded defendant through the entire process, Norton would have had personal knowledge

of the information that defendant argues was not sworn to in the report—the place of the

refusal, the date of the refusal, and the 12-month suspension. But the record does not reflect

that defendant raised this issue of an improperly sworn report at the hearing. The agreed

statement of facts mentions only the defective-notice argument. Defendant averred at oral

argument that the improperly-sworn-report issue was also raised before the trial court:

“This issue was…uh…in front of the trial court inasmuch as we…uh…Officer

Norton, the arresting officer, was questioned about the manner in which the sworn

report was filled out. He was questioned about who later provided the information. He

was unable to say who later provided the information.”

¶ 28 Defendant’s assertion at oral argument that he raised this issue at the hearing is

unconvincing. His questions of Norton about the manner in which the report was completed

were the basis of his defective-notice argument, which is what he raised at that time. He now

attempts to elevate his defective-notice argument into an argument that necessarily

encompassed his improperly-sworn-report issue. By failing to explicitly raise this issue in his

petition or at the hearing, he failed to put the City on notice and deprived it of the opportunity

to cure the report with Norton’s testimony. At best, defendant first raised this argument in his

motion to reconsider, which is enough, in itself, for us to consider the argument forfeited on

appeal. People v. Ross, 2017 IL App (4th) 170121, ¶ 32 (arguments made for the first time in

a motion to reconsider are forfeited on appeal). Where defendant’s failure to raise the

improperly-sworn-report issue at the hearing actually deprived the City of a clear opportunity

to cure any deficiencies in the report, it would be utterly unfair for us to view this argument as

anything but forfeited. See People v. Pratt, 2018 IL App (5th) 170427, ¶ 22 (argument forfeited

when the State’s failure to timely raise an argument unfairly deprived the defendant of an

opportunity to present evidence on the issue). Accordingly, the argument is forfeited.

¶ 29 C. Statutory Scheme

¶ 30 Defendant’s final argument is that the Highland Park Police Department operated contrary

to the procedural requirements described in the Vehicle Code. He frames this as a statutory

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construction issue, arguing that the arresting officer is required to forward the sworn report to

the Secretary and the court of venue and to “serve a copy of the sworn report upon the

motorist.” (Emphasis added.) He contends that the officer may not change or add facts to the

sworn report after he has already served a copy of the sworn report on the motorist. Defendant

then contends that the police department here added information to the sworn report only after

it served a copy on defendant and, therefore, “the police altered the protocol that was

envisioned by the legislature” and “usurped the function of the Secretary of State in identifying

defects or errors in the Notice.”

¶ 31 Defendant misreads the statute. No section of the Vehicle Code requires that the officer

serve a copy of the sworn report upon the motorist. Section 11-501.1(d) requires the officer to

“immediately submit a sworn report to the circuit court of venue and the Secretary of State.”

(625 ILCS 5/11-501.1(d) (West 2016)). Section 11-501.1(f) requires the officer to “serve

immediate notice of the statutory summary suspension or revocation on the person.” (Emphasis

added.) (625 ILCS 5/11-501.1(f) (West 2016)). The notice of the suspension is not part of the

sworn report. Lent, 276 Ill. App. 3d at 82. Here, Norton signed the sworn report before it was

sent to the Secretary. He was not required to serve defendant with a copy of the sworn report.

He was required to serve defendant with the notice, and he did so. Consequently, he did not

“usurp[ ] the function of the Secretary of State in identifying defects or errors in the Notice,”

because he properly forwarded the sworn report, not the notice, to the Secretary.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 34 Affirmed.

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