{ "id": 3031871, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAMON A. ORTEGA, Defendant-Appellee", "name_abbreviation": "People v. Ortega", "decision_date": "1982-05-18", "docket_number": "No. 80-1860", "first_page": "1018", "last_page": "1025", "citations": [ { "type": "official", "cite": "106 Ill. App. 3d 1018" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "396 N.E.2d 1374", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. 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App.", "case_ids": [ 4995461 ], "opinion_index": 0, "case_paths": [ "/ill-app/340/0330-01" ] }, { "cite": "390 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983680 ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0226-01" ] }, { "cite": "112 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "414 Ill. 525", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313774 ], "weight": 2, "pin_cites": [ { "page": "533" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0525-01" ] }, { "cite": "273 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5315227 ], "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0331-01" ] }, { "cite": "407 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 935", "category": "reporters:state", "reporter": "Ill. 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RAMON A. ORTEGA, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nThe State appeals from an order of the circuit court following a hearing held pursuant to section 11 \u2014 501.1 (Ill. Rev. Stat. 1979, ch. 95M, par. 11 \u2014 501.1) (\u201cimplied consent law\u201d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95M, par. 1 \u2014 100 et seq.) (\u201cCode\u201d). Two issues are presented on appeal, namely, whether the judgment appealed from is sufficiently of record to warrant the exercise of appellate jurisdiction, and whether the trial court properly dismissed the charge pursuant to the implied consent law. For the following reasons, we reverse and remand the cause to the trial court.\nOn February 18, 1980, at 1:55 a.m., defendant, Ramon Ortega, was arrested for driving a motor vehicle while under the influence of intoxicating liquor. The report and affidavit of the arresting officer, filed with the clerk of the circuit court, certified: that defendant struck a parked vehicle and had the strong odor of alcohol on his breath; and that defendant wilfully refused to submit to the breath analysis tests when requested to do so in accordance with the implied consent law, after being informed of the possible consequences of his refusal. Pursuant to section 11 \u2014 501.1(d) of the Code (Ill. Rev. Stat. 1979, ch. QS\u00cd, par. 11 \u2014 501.1(d)) the clerk of the circuit court provided defendant with written notice that his driver\u2019s license would be suspended unless he requested a hearing at which specific issues would be determined.\nDefendant requested a hearing and moved to dismiss the charges contending that the implied consent law was unconstitutional. At the close of the hearing on June 11, 1980, the court orally stated: that the constitutionality or unconstitutionality of the implied consent law had no bearing on the charge of driving under the influence of alcohol; that the issue before the court was whether the State would proceed with an implied consent hearing; that the statutory admonitions were confusing; and, that there was no statutory standard under which the Secretary of State could exercise his authority to suspend licenses. The court ordered \u201cthat the Petition submitted by the State against Defendant * * * for failure to submit to a breath test be stricken. However, the charge of 11 \u2014 501 must remain and has no bearing on the Implied Consent law.\u201d The court then set a \u201ctrial date\u201d for August 21, 1980. The clerk of the court noted on a form entitled \u201cCourt Action and Other Orders\u201d that the hearing was continued to August 21,1980.\nOn June 25,1980, the State filed its notice of appeal from the June 11, 1980, order. On December 9, 1980, the appellate court, pursuant to defendant\u2019s motion, dismissed the appeal for the failure of appellant to incorporate a copy of the judgment of June 11, 1980, with a proper certificate by the clerk of the court to show that it embodies an official record. The State made a motion to reconsider the dismissal and attached a copy of an order, identified as exhibit B, signed by the trial judge'but not certified by the clerk of the circuit court, dismissing all charges filed against defendant pursuant to the implied consent law. This court reinstated the appeal.\nI\nDefendant moves to dismiss for the appellant\u2019s failure to incorporate within the record an appealable order, urging that an opinion not made a part of a judgment order is not appealable. In addition, defendant contends that to secure a review of a judgment, such judgment must be shown in the record filed with the appellate tribunal, which is done by incorporating a copy of it with a proper certificate by the clerk to show that it portrays an official record, and there can be no substitute for this requirement. We disagree.\nHearings under the implied consent law are civil in nature and the rules governing civil appeals are applicable. (Ill. Rev. Stat. 1979, ch. 95\u00bd, par. 11 \u2014 501.1(d); 73 Ill. 2d R. 301 et seq.; People v. Malloy (1979), 76 Ill. 2d 513, 519, 395 N.E.2d 381.) Whereas certification is designed to assure the accuracy of the record, it is not a jurisdictional requirement. (Ray v. Winter (1977), 67 Ill. 2d 296, 302-03, 367 N.E.2d 678; People v. Marbly (1980), 85 Ill. App. 3d 935, 937, 407 N.E.2d 721.) Failure to file an order does not affect its validity. (Landis v. Miles Homes Inc. (1971), 1 Ill. App. 3d 331, 335, 273 N.E.2d 153; Ill. Ann. Stat., ch. 110A, par. 272, Historical and Practice Notes, at 210 (1981 Supp.).) The rendition of a judgment is the judicial act by the court at the time it makes its pronouncement and entry of the judgment on the record is simply a ministerial act performed by the clerk. In re Estate of Young (1953), 414 Ill. 525, 533, 112 N.E.2d 113.\nIt is apparent from the certified transcript that the order of June 11, 1980, rendered by the court was a final judgment which terminated all further proceedings under the implied consent law. Since the timeliness of the State\u2019s notice of appeal is not disputed, this is not a controversy involving the application of Supreme Court Rule 272 (73 Ill. 2d R. 272). (See West v. West (1979), 76 Ill. 2d 226, 390 N.E.2d 880.) More importantly, defense counsel does not challenge either the accuracy or the authenticity of the signed written order identified as exhibit B or the certified transcript of proceedings. In view of the particular circumstances of this case, we conclude that the June 11 order as reflected in the certified transcript of proceedings was of record in accordance with Supreme Court Rule 321 (73 Ill. 2d R. 321) and constitutes a final appealable judgment under Rule 301 (73 Ill. 2d R. 301). See Ray v. Winter (1977), 67 Ill. 2d 296,302-03; In re Estate of Young (1953), 414 Ill. 525, 533; but see Jones v. City of Carterville (1950), 340 Ill. App. 330, 91 N.E.2d 604.\nII\nThe trial court dismissed all further proceedings pursuant to the implied consent law for reasons never succinctly articulated. Defendant supports the court\u2019s decision by attacking, on a variety of grounds, the validity and constitutionality of the implied consent law. Defendant maintains that the law creates the \u201chopeless dilemma\u201d of the arresting officer being required to warn defendant that his driver\u2019s license may be suspended under section 11 \u2014 501.1(a) (Ill. Rev. Stat. 1979, ch. 95?z, par. 11 \u2014 501.1(a)) when the Secretary of State (\u201cSecretary\u201d) must suspend the license under section 11 \u2014 501.1(d) (Ill. Rev. Stat. 1979, ch. 95%, par. 11 \u2014 501.1(d)). Defendant\u2019s position is untenable. Suspension shall occur under section 11 \u2014 501.1(d) only if either the arrestee fails to request a hearing or upon termination of such a hearing \u201cif that be the decision of the Court.\u201d Hence the officer\u2019s warning that refusal to submit to the breath tests \u201cmay\u201d result in suspension of the driver\u2019s license was in accord with other statutory provisions.\nNext, defendant urges that the officer\u2019s warning was inconsistent with a statutory requirement concerning one of the issues to be covered at the implied consent hearing. Specifically, defendant observes that the arrestee must be advised under section 11 \u2014 501.1(a) that refusal to submit to the analyses may result in license suspension; whereas, section 11 \u2014 501.1(d) requires that the implied consent hearing contemplate, among other things, the issue of whether arrestee was informed that his license would be suspended if he refused to submit to the test.\nThis same argument was considered in depth and rejected in People v. Malloy (1980), 83 Ill. App. 3d 344, 347, 403 N.E.2d 1221, where the court held that there was no substantive difference in the uses of \u201cmay\u201d and \u201cwould\u201d for purposes of these provisions in the implied consent law. We follow the holding in Malloy and find that the challenged provisions are in harmony.\nDefendant\u2019s assertion that the Code does not vest the Secretary with power and duties, and jurisdiction of administering the implied consent law is in error. Section 2 \u2014 104(a) (Ill. Rev. Stat. 1979, ch. 95%, par. 2 \u2014 104(a)) provides that the Secretary is \u201ccharged with the duty of observing, administering and enforcing the provisions of this Act.\u201d The \u201cAct\u201d is the Illinois Vehicle Code, of which the implied consent law, included within chapter 11, is a part. See Ill. Rev. Stat. 1979, ch. 95\u00bd, par. 1 \u2014 100; People v. Farr (1976), 63 Ill. 2d 209, 347 N.E.2d 146.\nDefendant contends that the implied consent law violates the Illinois Constitution and the fourteenth amendment to the United States Constitution by reason of being vague and indefinite and an unlawful delegation of authority. The Secretary, defendant maintains, is given unfettered discretion to suspend licenses for as long as he pleases up to one year, citing sections 6 \u2014 208(a) and 11 \u2014 501.1(d) of the Code (Ill. Rev. Stat. 1979, ch. 95J\u00bf, pars. 6-208(a), ll-501.1(d)).\nThe State observes that under section 11 \u2014 501.1(a) an officer is required to advise the arrestee, among other things, that refusal to take the tests may result in suspension of his license \u201cfor 3 months on his first such arrest and refusal and for 6 months on his second and each subsequent such arrest and refusal within 5 years.\u201d The State emphasizes that if the arrestee requests a hearing, such hearing must address itself to the issue of whether the arrestee was informed orally and in writing of the warnings specified in subsection (a), among other issues (Ill. Rev. Stat. 1979, ch. 95?2, par. ll-501.1(d)). The State urges that the legislature intended to limit any suspension imposed after a hearing to the 3 or 6 month period, described in the warning set forth in subsection (a) and that, therefore, the length of suspension is strictly determined by the person\u2019s prior record of arrests and refusals.\nActs of the legislature are presumed constitutional; all reasonable doubts must be resolved in favor of constitutionality. (Northshore Post No. 21 v. Korzen (1967), 38 Ill. 2d 231, 233, 230 N.E.2d 833.) Where a statute is subject to two possible constructions one of which may render the statute unconstitutional, the courts will give the law that construction which avoids the constitutional problem. (McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 114, 419 N.E.2d 608.) Provisions of a statute must be construed in light of the statute as a whole (Winks v. Board of Education (1979), 78 Ill. 2d 128,135, 398 N.E.2d 823), and to effectuate the intent of the legislature. (People v. McCoy (1976), 63 Ill. 2d 40, 44-45, 344 N.E.2d 436.) In view of these authorities, we adopt the construction advocated by the State and hold that the Secretary\u2019s authority to suspend licenses after a hearing under the implied consent law is limited to the specific periods of time described in the officer\u2019s warning set forth in section 11 \u2014 501.1(a), which depend upon the person\u2019s prior record of refusals.\nThe Secretary is required to suspend the license of a person who fails to request an implied consent hearing, applying the limitations set forth in section 11 \u2014 501.1(a), or upon termination of such a proceeding held pursuant to a request \u201cif that be the decision of the Court\u201d under section 11 \u2014 501.1(d). The implied consent law is not unconstitutionally vague and does not impermissibly delegate authority to the Secretary (see People v. Farr (1976), 63 Ill. 2d 209, 347 N.E.2d 146), since the law satisfactorily circumscribes the Secretary\u2019s authority to suspend licenses pursuant thereto.\nDefendant maintains, in effect, that section 6 \u2014 206(a) (17) is unconstitutional or invalid, because the provision purportedly gives the Secretary absolute discretion over whether to suspend or revoke the licenses of certain persons.\nThe pertinent part of section 6 \u2014 206 provides:\n\u201c(a) The Secretary of State is authorized to suspend or revoke the license, permit or driving privileges of any person without preliminary hearing upon a showing by his records or other sufficient evidence that such person: # # #\n17. Has refused to submit to a test as required under Section 11 \u2014 501.1 of this Act and such person has not sought a hearing as provided for in Section 11 \u2014 501 of this Act.\u201d (Emphasis added.)\nSimply because under section 6 \u2014 206(a) the Secretary is given authority to suspend \u201cor\u201d revoke licenses if the conditions specified in any of the 20 subsections listed therein are met does not necessarily give him authority to suspend \u201cand\u201d revoke in every enumerated instance.\nThe word \u201cor\u201d in section 6 \u2014 206(a) is to be given its plain and ordinary meaning; it indicates that the various parts of the sentence are to be considered separately. (See People v. Vraniak (1955), 5 Ill. 2d 384,389,125 N.E.2d 513; People v. Butler (1979), 78 Ill. App. 3d 809, 817, 396 N.E.2d 1374.) The word \u201cor\u201d here refers to the implied consent law which provides the Secretary with the authority and obligation to suspend licenses under the circumstances specified; it does not empower him with authority to revoke. (Ill. Rev. Stat. 1979, ch. 95\u00bd, par. 11 \u2014 501.1 et seq.) Our reading of section 6 \u2014 206(a) (17), in conjunction with section 11 \u2014 501.1, the implied consent law, leads to the conclusion that suspension of licenses does not encompass the power of revocation in this instance.\nDefendant\u2019s contention that the implied consent law is invalid for its purported failure to provide a penalty must be rejected. The law validly and competently provides specific sanctions for those who offend its terms, as the foregoing discussion reveals.\nFor the given reasons, the trial court\u2019s order is reversed and the cause remanded for a hearing pursuant to the implied consent law.\nReversed and remanded.\nDOWNING and PERLIN, JJ., concur.\nThe State alleges that the order was not certified because defense counsel, after submitting and obtaining the judge\u2019s signature thereon, did not see that the signed judgment was filed with the clerk of the circuit court. Counsel for defendant does not appear to contest this allegation, and maintained at oral argument that although defense counsel thought such an order indeed had been prepared, counsel had no duty to do anything further.\nThe reference in 6 \u2014 206(a) (17) to section 11 \u2014 501, which creates a misdemeanor offense, namely, driving under the influence of intoxicating liquor, enforceable by the State through its criminal justice apparatus, was recently amended with the only pertinent change being the substitution of section \u201c11 \u2014 501.1\u201d for section \u201c11 \u2014 501.\u201d (Pub. Act 82-311.) The amendment\u2019s reference to section 11 \u2014 501.1 is in accord with section 6 \u2014 206(a) since the implied consent law allows persons who refused to take the tests the right to request a hearing, provision for which is set forth in section 11 \u2014 501.1, not 11.501. The amendment demonstrates that the legislature intended to refer to the implied consent law, section 11.501.1, the same statute cited within the sentence.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Warren A. Zimmerman, Assistant State\u2019s Attorneys, of counsel), for the People.", "Joseph L. Goldberg, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAMON A. ORTEGA, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 80-1860\nOpinion filed May 18,1982.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Warren A. Zimmerman, Assistant State\u2019s Attorneys, of counsel), for the People.\nJoseph L. Goldberg, of Chicago, for appellee." }, "file_name": "1018-01", "first_page_order": 1040, "last_page_order": 1047 }