{ "id": 8498994, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD GAFFORD, Defendant-Appellant", "name_abbreviation": "People v. Gafford", "decision_date": "1991-08-29", "docket_number": "No. 2-90-0515", "first_page": "492", "last_page": "500", "citations": [ { "type": "official", "cite": "218 Ill. App. 3d 492" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "184 Ill. App. 3d 728", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2638602 ], "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0728-01" ] }, { "cite": "164 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582188 ], "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0049-01" ] }, { "cite": "122 Ill. 2d 555", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549696 ], "weight": 2, "pin_cites": [ { "page": "568" }, { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0555-01" ] }, { "cite": "122 Ill. 2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549752 ], "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0050-01" ] }, { "cite": "142 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236771 ], "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0410-01" ] }, { "cite": "108 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3014362 ], "weight": 2, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0096-01" ] }, { "cite": "156 Ill. App. 3d 918", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505645 ], "weight": 2, "pin_cites": [ { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0918-01" ] }, { "cite": "186 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2656525 ], "pin_cites": [ { "page": "954" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0951-01" ] }, { "cite": "201 Ill. App. 3d 163", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2595154 ], "year": 1989, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0163-01" ] }, { "cite": "210 Ill. App. 3d 11", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534993 ], "weight": 2, "pin_cites": [ { "page": "13" }, { "page": "13-14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0011-01" ] }, { "cite": "205 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2566318 ], "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0431-01" ] }, { "cite": "124 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218359 ], "pin_cites": [ { "page": "337-38" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0326-01" ] }, { "cite": "207 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553814 ], "weight": 3, "pin_cites": [ { "page": "349" }, { "page": "349, 351" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0346-01" ] }, { "cite": "138 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576624 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "166" }, { "page": "167, 169" }, { "page": "169" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0162-01" ] }, { "cite": "181 Ill. App. 3d 389", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498627 ], "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0389-01" ] } ], "analysis": { "cardinality": 701, "char_count": 17848, "ocr_confidence": 0.776, "pagerank": { "raw": 1.8251572958775316e-07, "percentile": 0.7197560552758095 }, "sha256": "2d9c7ac64dc48823facaeb23b09bef49ce147e53fe077bee16fcd8f5851c8ea9", "simhash": "1:8b20819b37e5a07d", "word_count": 3023 }, "last_updated": "2023-07-14T18:01:44.666066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McLAREN and BOWMAN, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD GAFFORD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nDefendant, Ronald Gafford, appeals from an order of the circuit court of Du Page County which denied his petition to rescind the statutory summary suspension of his driver\u2019s license. Defendant raises two issues on appeal: (1) whether the trial court erred in denying his petition where the State presented no testimony to refute defendant\u2019s testimony that no warnings were given by the arresting officer before defendant submitted to a breathalyzer test; and (2) whether the trial court erred in denying defendant\u2019s motion for judgment on the pleadings where the record contains no proof that defendant was served with notice of the summary suspension of his driving privileges. We affirm.\nDefendant was stopped by a law enforcement officer at approximately 11:08 p.m. on January 19, 1990. He was charged with the offenses of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 \u2014 501(a)(2)), driving with an alcohol concentration in his blood or breath in excess of 0.10 (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 \u2014 501(a)(1)), and improper lane usage (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 \u2014 709). A law enforcement sworn report was filed on January 26, 1990. The report stated that defendant submitted to testing on January 20, 1990, at 12:16 a.m. The test disclosed an alcohol concentration of 0.15. The report also stated that notice of the statutory summary suspension was given on January 20, 1990. The report form contained two boxes to indicate whether notice was served immediately or was mailed. Neither box was checked.\nA warning to motorist form was also filed. The form listed the consequences to a motorist arrested for violating section 11 \u2014 501 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 \u2014 501) who refuses to take a chemical test or who takes a test disclosing an alcohol concentration of 0.10 or more. The form stated that the warning was issued to defendant. The date and time noted on the form was January 19,1990, at 11:47 p.m.\nBoth forms were signed by the arresting officer under the following language:\n\u201cUnder penalties as provided by law pursuant to Section 1\u2014 109 of the Illinois Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.\u201d\nA confirmation of statutory summary suspension was filed on February 2, 1990, and stated that defendant\u2019s driver\u2019s license would be suspended on March 7, 1990, for a period of three months. On January 29, 1990, defendant filed his petition to rescind the statutory summary suspension of his driver\u2019s license. The petition alleged, among other things, that defendant was not properly warned by the arresting officer as required by section 11 \u2014 501.1 of the Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 \u2014 501.1(c)) and defendant was not properly served with notice of the summary suspension. The petition was verified by defendant.\nOn February 9, 1990, defendant filed a \u201cmotion to dismiss\u201d asking that the statutory summary suspension proceeding against defendant be dismissed pursuant to sections 2 \u2014 610, 2 \u2014 615 and 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2\u2014 610, 2 \u2014 615, 2 \u2014 619). In this motion, defendant stated:\n\u201c1. That on January 19, 1990, the Defendant, RONALD GAFFORD, was arrested for driving under the influence and given a Notice of Summary Suspension pursuant to Section 11 \u2014 501.1 of the Illinois Vehicle Code. Said notice is attached hereto and made a part hereof as Exhibit \u2018A\u2019.\u201d\nThe motion was signed by defendant\u2019s attorney and requested that the proceeding be dismissed because the law enforcement sworn report failed to state a cause of action. There is no exhibit A attached to the motion. However, the record does contain a copy of a notice of summary suspension. This form is identical to the law enforcement sworn report filed on January 26, 1990, except that it is entitled \u201cNotice of Summary Suspension\u201d and contains a notation on the bottom which states \u201cPOLICE OFFICER-GIVE TO MOTORIST.\u201d Also, it appears from the copy contained in the record that a \u201cnotice to the motorist of right to a hearing\u201d was included on the back of the notice. The copy of the notice is not file stamped but is included in the record in between documents filed by defendant.\nA hearing was held regarding defendant\u2019s petition on March 23, 1990. The State informed the court that the arresting officer was on vacation and requested a continuance in order to have the officer available. Defense counsel stated that he did not intend to call the officer as a witness and objected to a continuance. The court decided that the hearing would begin that day. Defendant then asked for judgment on the pleadings, arguing that the law enforcement sworn report did not indicate that the officer served notice on defendant as required by statute. The trial court denied this oral motion on the basis that defendant\u2019s written motion filed on February 9, 1990, stated that he was given notice of the summary suspension.\nDefendant then testified that he was driving on January 19, 1990, fell asleep at the wheel and drove his car into a ditch. Shortly thereafter, the arresting officer approached his car. The officer asked defendant for his driver\u2019s license, and defendant told the officer that he was an attorney. After performing field sobriety tests, defendant was taken to the police station for further testing.\nDefendant testified that the officer told him that he wanted him to take a breathalyzer test. Defendant stated that the officer said \u201cbasically that because I was an attorney, if I took the test I\u2019d probably just come to court; I would be all right; if I didn\u2019t take the test, that then I would lose my license.\u201d Defendant testified that he then took the breathalyzer test. Defendant claimed that he did not see the warning to motorist form at the police station nor did the officer read it to him. A copy of the warning to motorist was marked as defendant\u2019s exhibit No. 1.\nDuring cross-examination, defendant testified that the only paper work the officer gave him that night was a ticket. During redirect examination, defendant stated that he does not practice criminal law. His practice is a civil practice, mainly real estate and small business.\nFollowing this testimony, the State orally moved for a directed finding, arguing that defendant\u2019s testimony was not sufficient to meet his burden to show that the summary suspension should be rescinded. The court denied the motion. It noted that defendant had not sustained his burden on most of the issues raised, but found that defendant had, at that point, made a prima facie case with regard to the issue of whether he was adequately warned prior to submitting to the breathalyzer test. The court stated that, even though defendant is an attorney, the officer had a duty to admonish him properly.\nThe State then asked that the court take judicial notice of the carbon copy of the warning to motorist form presented by defendant and also the warning to motorist form included in the court file. The State also asked that the officer\u2019s police report be admitted into evidence. The report was admitted, over defendant\u2019s hearsay objection. The police report is not included in the record. However, the trial court noted that the report stated that the warning to motorist was read at 11:47 p.m. and that the breath analysis was performed at 12:16 a.m.\nThe State then recalled defendant to testify. Defendant again testified that he was not given the warning to motorist form by the officer the evening he was arrested. He also stated that the form was not mailed to him and that the officer gave him only three tickets on the night of his arrest.\nThe trial judge denied defendant\u2019s petition to rescind the summary suspension of his driver\u2019s license. He stated that he found from the evidence that defendant was properly advised of the warnings and was given a copy of the warning to motorist form the evening in question.\nDefendant filed a motion to reconsider which was denied on April 19, 1990. This timely appeal followed.\nOn appeal, defendant first argues that the trial court\u2019s finding that he was given the necessary warnings was against the manifest weight of the evidence because defendant\u2019s testimony that no warnings were given was rebutted only by uncorroborated hearsay.\nSection 11 \u2014 501.1(c) of the Code provided, at the time of defendant\u2019s arrest:\n\u201cA person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person\u2019s privilege to operate a motor vehicle as provided in Section 6 \u2014 208.1 of this Code. The person shall also be warned by the law enforcement officer that if the person submits to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in such person\u2019s blood or breath is 0.10 or greater, a statutory summary suspension of such person\u2019s privilege to operate a motor vehicle, as provided in Sections 6 \u2014 208.1 and 11 \u2014 501.1 of this Code will, be imposed.\u201d (Ill. Rev. Stat. 1989, ch. 951/2, par. 11\u2014 501.1(c).)\nTherefore, defendant is correct that warnings were required prior to the administration of the breathalyzer test. Failure to give the required warnings is grounds for rescission of the statutory summary suspension. (See Ill. Rev. Stat. 1989, ch. 95x/2, par. 2 \u2014 118.1(b)(4); People v. Znaniecki (1989), 181 Ill. App. 3d 389, 392.) We conclude, however, that the trial court\u2019s finding that the required warnings were given was not against the manifest weight of the evidence.\nThe summary suspension system enacted by our legislature is separate from the criminal proceeding and serves the salutary purpose of promptly removing impaired drivers from the road. (People v. Moore (1990), 138 Ill. 2d 162, 166; see also People v. Teller (1991), 207 Ill. App. 3d 346, 349.) A summary suspension rescission hearing is therefore civil in nature and was intended by the legislature to be swift and of limited scope. (Moore, 138 Ill. 2d at 167, 169; Teller, 207 Ill. App. 3d at 349, 351.) The burden is on the motorist to prove that the suspension should be rescinded (People v. Orth (1988), 124 Ill. 2d 326, 337-38), and the decision of the trial court in this regard will not be reversed unless it is against the manifest weight of the evidence (People v. Davis (1990), 205 Ill. App. 3d 431, 435).\nSection 2 \u2014 118.1 of the Code provides, in pertinent part:\n\u201cThe hearing may be conducted upon a review of the law enforcement officer\u2019s own official reports; provided however, that the [motorist] may subpoena the officer. Failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.\u201d (Ill. Rev. Stat. 1989, ch. 95x/2, par. 2 \u2014 118.1(b).)\nThe purpose of this provision is to relieve arresting officers from undue loss of time by appearance at hearings regarding requests for rescission of summary suspensions. (People v. McCollum (1991), 210 Ill. App. 3d 11, 13.) Under this provision, therefore, an officer\u2019s reports are admissible in evidence at the hearing (McCollum, 210 Ill. App. 3d at 13-14), and the State is not required to have the arresting officer testify (Moore, 138 Ill. 2d at 169). The officer need not appear, and a court may rely on the officer\u2019s official reports (Moore, 138 Ill. 2d at 167; Teller, 207 Ill. App. 3d at 351), provided that the arresting officer has not been subpoenaed by the defendant. See People v. Clayton (1990), 201 Ill. App. 3d 163, 165; People v. Johnson (1989), 186 Ill. App. 3d 951, 954.\nThere is nothing in the record to show that defendant subpoenaed the arresting officer, and defendant stated that he did not intend to call the officer as a witness. Under these circumstances, the trial court could properly rely on the officer\u2019s reports as evidence that the required warnings were given. We therefore cannot agree with defendant\u2019s assertion that hearsay evidence contained in the reports cannot be the basis for a trial court\u2019s determination when there is testimony that directly contradicts it. We conclude that the trial court could properly find that defendant\u2019s testimony that no warnings were given was not credible based upon the reports which were admitted into evidence. In light of the clear language in the statute, we decline to follow dicta contained in In re Summary Suspension of Driver\u2019s License of Trainor (1987), 156 Ill. App. 3d 918, relied upon by defendant, which suggests that testimony that the officer read the form to the defendant would be necessary. See Trainor, 156 Ill. App. 3d at 925.\nDefendant devotes a considerable portion of his argument to his contention that the State, by calling defendant as its witness, vouched for defendant\u2019s veracity. Defendant relies on People v. Stout (1982), 108 Ill. App. 3d 96, and several other cases decided prior to 1982. We acknowledge that we stated in Stout that a party calling a witness vouches for the credibility of the witness and that a party may not call a witness for the sole purpose of impeaching him. Stout, 108 Ill. App. 3d at 102.\nHowever, Supreme Court Rule 238 was amended, effective April 1, 1982, to state that \u201c[t]he credibility of a witness may be attacked by any party, including the party calling him.\u201d (134 Ill. 2d R. 238(a).) Under this rule, a party may call a witness solely for the purpose of impeachment (see People v. Morgan (1991), 142 Ill. 2d 410, 457) and, therefore, does not vouch for the credibility of the witness. The fact that some of defendant\u2019s testimony was given after he was called as a witness by the State does not in any way bolster the credibility of the testimony.\nIn his reply brief, defendant complains that the trial court should not have relied on \u201cunsworn police reports.\u201d He contends that only \u201csworn\u201d reports are \u201cofficial\u201d reports for purposes of section 2 \u2014 118.1(b) of the Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 2\u2014 118.1(b)). (See People v. Badoud (1988), 122 Ill. 2d 50, 54.) As the warning to motorist form was properly sworn, defendant is apparently referring to the police report. However, defendant did not object to the admission of the police report in the trial court on the basis that it was unsworn. Questions not raised in the trial court are considered waived and may not be raised for the first time on appeal. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568.) Also, Supreme Court Rule 341(e)(7) states that points not raised in an appellant\u2019s initial brief \u201care waived and shall not be raised in the reply brief.\u201d (134 Ill. 2d R. 341(e)(7); In re Liquidations, 122 Ill. 2d at 568.) The issue of the admissibility of an unsworn police report has therefore been waived. We note, however, that it has been held that unsworn police reports may properly be admitted in a summary suspension proceeding. See In re Summary Suspension of Driver\u2019s License of Vaughn (1987), 164 Ill. App. 3d 49, 52.\nFinally, we are also not persuaded by defendant\u2019s impassioned plea that he did not have a fair and just hearing because he was denied the opportunity to cross-examine and impeach the \u201cvacationing\u201d police officer. Defendant cannot now complain that he did not have this opportunity when he did not take advantage of his right to subpoena the officer and objected to the State\u2019s request for a continuance so that the officer could be present.\nDefendant next argues that the trial court erred in denying his motion for judgment on the pleadings because the law enforcement sworn report does not indicate that notice was served on defendant and was not amended to state that notice was given. We agree with defendant that the Code requires that a defendant be given immediate notice of the statutory summary suspension and the right to a hearing. (Ill. Rev. Stat. 1989, ch. 95^2, pars. 2 \u2014 118.1(a), 11 \u2014 501.1(f); People v. Osborn (1989), 184 Ill. App. 3d 728, 729.) The Code also provides that the statutory summary suspension does not take effect until the 46th day following the date notice was given. Ill. Rev. Stat. 1989, ch. 95V2, par. 11 \u2014 501.1(g).\nIn this case, however, the law enforcement sworn report states that notice was given on January 20, 1990. The form just fails to specify whether notice was given by immediate service or by mail. In fact, according to section 11 \u2014 501.1(f) of the Code (Ill. Rev. Stat. 1989, ch. 95^2, par. 11 \u2014 501.1(f)), notice could only have been given by immediate service on defendant because defendant submitted to a breathalyzer test. Service by mail is permissible only in cases where the blood-alcohol concentration is established by a subsequent analysis of blood or urine. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 \u2014 501.1(f).) Therefore, we conclude that the form itself was sufficient to establish that proper notice was given. We also note that defendant admitted, in his motion to dismiss, that he was given notice and that the record contains a copy of a notice of summary suspension which was apparently filed by defendant.\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nMcLAREN and BOWMAN, JJ., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "Stephen M. Komie, of Komie & Associates, and Marco A. Raimondi, of Drunk Driving Defense Lawyers of Illinois, Ltd., both of Chicago, for appellant.", "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD GAFFORD, Defendant-Appellant.\nSecond District\nNo. 2-90-0515\nOpinion filed August 29, 1991.\nStephen M. Komie, of Komie & Associates, and Marco A. Raimondi, of Drunk Driving Defense Lawyers of Illinois, Ltd., both of Chicago, for appellant.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0492-01", "first_page_order": 514, "last_page_order": 522 }