People v. Sandoval

2023 IL App (2d) 220155

216 N.E.3d 408

465 Ill.Dec. 1157

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Julian I. SANDOVAL, Defendant-Appellee.

No. 2-22-0155

Appellate Court of Illinois, Second District.

Filed January 20, 2023

Patrick D. Kenneally, State's Attorney, of Woodstock (Patrick Delfino, Edward R. Psenicka, and Adam J. Rodriguez, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

No brief filed for appellee.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 The State charged defendant, Julian I. Sandoval, with driving while under the influence of alcohol (DUI) ( 625 ILCS 5/11-501(a)(2) (West 2020)). His driving privileges were summarily suspended by statute. He petitioned to rescind the summary suspension, arguing that the arresting officer lacked reasonable grounds to believe that he was under the influence of alcohol. At the hearing on the petition to rescind, the trial court took judicial notice of the court file, which included the arresting officer's official reports. Defendant testified at the hearing and offered no other evidence to support his petition. After defendant rested his case, the State asked the court to consider the arresting officer's official reports under section 2-118.1(b) of the Illinois Vehicle Code (Code) (id. § 2-118.1(b)), as the officer was neither subpoenaed nor appeared in court. The court asked defendant if he would stipulate to the admission of the reports, and defendant said no. The State presented no evidence. The court granted defendant's petition to rescind, noting that it did not consider the official reports as evidence. The State timely appeals, arguing that the court should have considered the official reports. We agree with the State that the court should have permitted it to rely on the official reports in its case in chief. Accordingly, we vacate the court's order granting defendant's petition to rescind and remand this cause for a new rescission hearing, where the State may proceed on the arresting officer's official reports if it so chooses.

¶ 2 I. BACKGROUND

¶ 3 The facts are undisputed. Those relevant to resolving the issue raised are as follows.

¶ 4 On November 20, 2021, defendant was issued a citation and complaint for DUI (DUI citation). The notations on the DUI citation indicated that McHenry County Sheriff's Deputy Richard Kim, the arresting officer, used his radar gun to clock defendant driving 71 miles per hour in a posted 55-mile-per-hour zone. Kim also completed a "Law Enforcement Sworn Report" (sworn report). The sworn report provided:

"T[raffic] Stop on vehicle for speeding. [Vehicle] did not pull over right away. When it did it hit the curb. Spoke w/driver who had glassy bloodshot eyes, slurred speech, odor of alcoholic bev."

Finally, Kim completed a "Warning to Motorist" (warning). The warning (1) admonished defendant about the consequences of submitting to or refusing chemical testing to determine if any specified intoxicating compounds were in his system and (2) reflected that defendant refused chemical testing. Kim signed the DUI citation, sworn report, and warning, certifying under penalty of law that the information contained in each was true and correct.

¶ 5 Defendant retained counsel and petitioned to rescind the statutory summary suspension of his driving privileges. He raised five bases to rescind. At the hearing on the petition, the trial court noted that the parties had subpoenaed no witnesses. The court asked defense counsel how he wished to proceed. Counsel said that he was ready for a hearing. The court inquired, "With no witnesses?" Defense counsel replied, "Judge, only my client [(defendant)]." The court said, "Okay. All right."

¶ 6 Before the hearing began, the State asked the trial court to take judicial notice of the court file and the National Highway Traffic Safety Administration (NHTSA) guidelines. The court file contained the properly filed (1) DUI citation, (2) sworn report, and (3) warning. After defense counsel said he had no objection, the court took judicial notice of its file and the NHTSA guidelines. Defense counsel also advised the court that he was proceeding on the sole issue of whether Kim had reasonable grounds to believe that defendant was under the influence.

¶ 7 Defendant testified that at around 1 a.m. on November 20, 2021, he was on Illinois State Route 31, driving home from a friend's house. Defendant obeyed all traffic laws, including observing the 55-miles-per-hour posted speed limit. Kim pulled defendant over, approached defendant in his car, and told him that he was speeding. Kim also told defendant that he could smell alcohol. Defendant testified that he had not consumed any alcohol and that there was no reason for either his breath or his vehicle to smell of alcohol. Kim asked defendant to step out of his car, as Kim wished to have defendant perform field sobriety tests. Defendant refused to submit to any such testing.

¶ 8 Defense counsel rested. The State did not move for a directed finding. At the outset of its case, the State asked to proceed in the following manner:

"Your Honor, pursuant to statute, the exact number being 625 ILCS 5[/]2-118.1, opportunity for a hearing on summary suspension, alcohol or other drug-related suspension or revocation, subsection (b) allows the hearing to be conducted upon a review of the law enforcement officer's own official reports. At the same time the [S]tate would offer said official reports for this case; defense counsel has had an opportunity to review these."

Defense counsel concurred that he had reviewed Kim's official reports. The court asked if counsel would "stipulate to the admission of the reports." Counsel said no. The State interjected, advising the court that the reports "are admissible per the statute." The court replied, "We're not conducting the hearing on it, though. So it's his hearing and he's not choosing to conduct it on the reports." Having made its record, the State accepted the court's ruling and rested.

¶ 9 During closing argument, the State noted that the trial court had taken judicial notice of the NHTSA guidelines and the court's file contents, including Kim's official reports. The State noted that the substance of Kim's sworn report was that (1) Kim initiated a traffic stop for speeding, (2) defendant failed to stop immediately and hit a curb, and (3) in speaking with defendant, Kim detected slurred speech, bloodshot eyes, and the odor of alcohol. The State argued that the defendant's traffic infraction and Kim's personal observations of defendant constituted signs of impairment under the NHTSA guidelines. Accordingly, the State contended that Kim had reasonable grounds to believe that defendant was under the influence and, thus, the court should deny defendant's petition to rescind. Defense counsel disagreed, claiming that the State was "essentially trying to back door getting the documents into the hearing when that's not how we're proceeding."

¶ 10 The trial court granted defendant's petition to rescind. In doing so, the court stated:

"So the only evidence I have before me is—even if I take judicial notice of the file, that is not evidence. And I have that the defendant states he was obeying all laws and he was visiting a friend, had nothing to drink on the 19th or the 20th, that he did not smell like alcohol, doesn't know of any reason the officer would smell alcohol, which I do have to say that it does say an odor of DF [sic ] alcohol bev, as best as I can read it, on the law officer's sworn report.

The law officer's sworn report also says that the vehicle was stopped for speeding. The defendant has testified that he was not speeding and he said he did not pull over right away. There [were] no questions regarding whether he did not pull over right away, so in absence of that, I [must] defer to the physical testimony. And did not ask if he hit the curb, and so then it says spoke with the driver who had glassy, bloodshot eyes and slurred speech. Glassy eyes and bloodshot eyes and slurred speech is not enough for probable cause or reasonable grounds."

¶ 11 The State moved the court to reconsider its ruling, arguing that both section 2-118.1(b) of the Code and case law allow the State to rely on the arresting officer's official reports if the officer was not subpoenaed. In his response to the motion, defense counsel focused on Kim's sworn report. Counsel agreed that both section 2-118.1(b) and case law provide that the trial court "may consider" (emphasis omitted) an officer's sworn report where the officer was not subpoenaed. Thus, "the [trial] court may consider Deputy Kim's sworn report[ ] and give such evidence as much or as little weight as the court deems proper." Defendant argued that any error in the court's failure to consider the sworn report was harmless, as the sworn report, like an affidavit, was "weak[ ] and *** unsatisfactory evidence." (Internal quotation marks and emphasis omitted.)

¶ 12 The trial court denied the State's motion to reconsider, explaining:

"[I]t was the way that it was presented for me to accept the police report that was what I considered the error. It was not presented in the manner in which you're stating now."

¶ 13 The State timely appealed. See Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017); Village of Mundelein v. Thompson , 341 Ill. App. 3d 842, 847, 276 Ill.Dec. 237, 793 N.E.2d 996 (2003).

¶ 14 II. ANALYSIS

¶ 15 At issue in this appeal is whether the trial court erred in refusing to consider Kim's official reports. Before considering this issue, we observe that defendant, the appellee, failed to file a brief in this court. Although considering an appeal without an appellee's brief is not ideal, its absence is not fatal.

"Under First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133 [345 N.E.2d 493] (1976), we may consider the merits of an appeal despite the absence of an appellee's brief if ‘the record is simple and the

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