FIFTH DIVISION

MARCH 15, 2002

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

On February 20, 2000, defendant David Ullrich was arrested and charged with (amongother things) driving under the influence of alcohol. See 625 ILCS 5/11-501 (West 2000). Thearresting officer served Ullrich with a notice of a statutory summary suspension of his driver'slicense, stating that Ullrich refused to submit to chemical testing. Ullrich appeals an order of thecircuit court of Cook County denying his Petition to Rescind the Statutory Summary Suspension.

The record discloses that Ullrich filed his petition on February 24, 2000, alleging that thepolice lacked reasonable grounds for arrest and failed to warn him of the consequences ofrefusing to submit to testing.⁽¹⁾ Ullrich answered ready on March 14, 2000, but the trial court hadnot received a legally required confirmation of the suspension from the Secretary of State. Thecase then was continued at the request of the State, keyed to the arresting officer's schedule.

On March 23, 2000, no police witnesses appeared. The transcript of proceedings containsa statement by the prosecutor that "we did notify our officers, and if they are called to 26th andCalifornia, they have to go." The State elected to proceed, based on the court's review of the lawenforcement officer's own official reports. The record does not show that the trial court or theState informed Ullrich that he could subpoena the police officer or officers. Tina Moreth,Ullrich's girlfriend, testified that on the night in question, she had been driving the automobileand had the keys thereto in her possession. Moreth testified that at approximately 3 a.m., aftermeeting with friends, she and Ullrich had gone back to the car to get money for breakfast. Moreth stated that two Chicago Police Officers stopped them before they could even touch thecar. Moreth argued with the officers. According to Moreth, the police cursed at her, told her toshut up and threatened to arrest her. Moreth stated that she walked away, with the keys toUllrich's car.

Ullrich testified that after Moreth left, the police asked him who owned the car. According to Ullrich, when he replied that he owned the car, the police immediately spun him around,placed him in handcuffs and arrested him. Ullrich stated that he was not given any statutorywarnings prior to his arrest.

Ullrich testified that the police took him to the police station at Grand and CentralAvenues, where he was asked to blow into a machine. Ullrich again stated that he was not givenany statutory warnings regarding the test. According to Ullrich, he refused to take a breath testbecause he had not been driving. After he was released from the police station, Ullrich retrievedhis automobile from the Chicago Auto Pound. Ullrich stated that he had a spare set of keysunderneath his car seat.

Ullrich rested. The State moved for a directed finding. The trial court denied the State'smotion, finding that Ullrich had presented a prima facie case for recission. The State thenoffered into evidence an alcohol influence report, a field report, an arrest report, and the arrestingofficer's sworn report regarding Ullrich. The trial court accepted these reports, over Ullrich'sobjections.

The officer's sworn report stated that Ullrich was stopped after he pulled out of a driveway without activating his headlights and almost struck another vehicle. The sworn report statedthat Ullrich had a strong odor of alcohol on his breath, glassy bloodshot eyes, and a flushed face. An accompanying "Warning to the Motorist" form stated that the motorist's license would besuspended if he refused to submit to all chemical tests requested; this form, like the sworn report,purported to be certified under section 1-109 of the Illinois Code of Civil Procedure (735 ILCS5/1-109 (West 2000)). Both the sworn report and the warning bear the last name of the officerand an "identifying number."

The officer's unsworn alcohol influence report contained much of the same information aswas contained in the sworn report. The unsworn alcohol influence report added that Ullrich wasobserved wobbling and staggering. The unsworn alcohol influence report also quoted Ullrich asstating, "you didn't catch me driving, my girlfriend was driving," and "I don't want to blow,because if their's [sic] evidence I'll win just like 3 years ago."

The officer's unsworn field report expressly states that the police observed Ullrich"driving with the motor running" and the keys in the ignition. The officer's unsworn arrest reportcontains similar information about the incident.

Following closing arguments, the trial court denied Ullrich's petition. The trial courtstated that the testimony of Ullrich and Ms. Moreth had "a number of rather troubling elementsin it." The trial court also questioned the consistency of their testimony. Yet the trial court notedthat the recitations in the police reports were such that one might expect that Ullrich would havebeen ticketed for some infraction arising from the near-collision described in the reports.

On April 21, 2000, Ullrich filed a motion to reconsider. The trial court denied Ullrich'smotion on May 10, 2000. Ullrich then filed a timely Notice of Appeal to this court.

On appeal, Ullrich primarily argues that the trial court's consideration of unsworn policereports and hearsay contained in the officer's sworn reports violated Ullrich's right to due processof law. Ullrich also argues that the trial court improperly rejected his evidence and that thedecision was against the manifest weight of the evidence. These latter arguments are related tothe former arguments, insofar as they are affected by the consideration of the police reports.

Section 2-118.1(b) of the Illinois Vehicle Code, which sets forth the procedure forseeking to rescind a statutory summary suspension of a driver's license, provides as follows:

"(b) Within 90 days after the notice of statutory summarysuspension served under Section 11-501.1, the person may make awritten request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon whichthe person seeks to have the statutory summary suspensionrescinded. Within 30 days after receipt of the written request or thefirst appearance date on the Uniform Traffic Ticket issued pursuantto a violation of Section 11-501, or a similar provision of a localordinance, the hearing shall be conducted by the circuit courthaving jurisdiction. This judicial hearing, request, or process shallnot stay or delay the statutory summary suspension. The hearingsshall proceed in the court in the same manner as in other civilproceedings.

The hearing may be conducted upon a review of the lawenforcement officer's own official reports; provided however, thatthe person may subpoena the officer. Failure of the officer toanswer the subpoena shall be considered grounds for a continuanceif in the court's discretion the continuance is appropriate.

The scope of the hearing shall be limited to the issues of:

***

2. Whether the officer had reasonable grounds to believethat the person was driving or in actual physical control of a motorvehicle upon a highway while under the influence of alcohol, otherdrug, or combination of both; and

3. Whether the person, after being advised by the officerthat the privilege to operate a motor vehicle would be suspended ifthe person refused to submit to and complete the test or tests, didrefuse to submit to or complete the test or tests to determine theperson's alcohol or drug concentration ***." 625 ILCS5/2-118.1(b) (West 2000).

"It is clear that the due process clause applies to the deprivation of a driver's license by the State." People v. Orth, 124 Ill. 2d 326, 334, 530 N.E.2d 210, 214 (1988), citing Bell v. Burson, 402 U.S.535, 539, 29 L. Ed. 2d 90, 94, 91 S. Ct. 1586, 1589 (1971). The purpose of section 2-118.1 is toprovide a motorist with due process of law. People v. Holmes, 268 Ill. App. 3d 802, 806, 644N.E.2d 1, 3 (1994).

As noted above, section 2-118.1 hearings are judicial, proceeding in the same manner asother civil proceedings, but they also serve as an "administrative device." 625 ILCS 5/2-118.1(b)(West 2000); People v. Moore, 138 Ill. 2d 162, 167-68, 561 N.E.2d 648, 650-51 (1990). Wherestate action seriously injures a person, and the reasonableness of the action depends on factualfindings, especially when based on testimony by people whose memory might be faulty, or whomight be perjurers or motivated by malice, vindictiveness, prejudice, or jealousy, due processrequires confrontation and cross-examination, not only in criminal cases, but also in all types ofcases where administrative actions are under scrutiny. See Goldberg v. Kelly, 397 U.S. 254, 270,25 L. Ed. 2d 287, 300, 90 S. Ct. 1011, 1021 (1970). The requirements of due process in aparticular case vary, depending upon: (1) the significance of the private interest affected by theofficial action; (2) the risk of the erroneous deprivation of such interest through the proceduresused, and probable value, if any, of additional or substitute procedural safeguards; and (3) thesignificance of the State interest, including the function involved and the fiscal andadministrative burdens that additional or substitute procedural safeguards would impose. E.g.,Mackey v. Montrym, 443 U.S. 1, 11, 61 L. Ed. 2d 321, 329-30, 99 S. Ct. 2612, 2617 (1979).

In Orth, our supreme court considered whether placing the burden of proof upon themotorist in section 2-118.1 hearings denied the motorist due process of law, applying the three factors from Mackey. The court stated that the private interest in a driver's license is significant,particularly where driving is essential to the motorist's livelihood, but not as important as thoseprivate interests previously held indefeasible absent the satisfaction by the State of a specifiedburden of proof. Orth, 124 Ill. 2d at 335, 530 N.E.2d at 214. The court also noted that the statutecontains safeguards to ensure that the suspended motorist could continue to use his vehicle foressential purposes while challenging the validity of his suspension. Orth, 124 Ill. 2d at 335, 530N.E.2d at 214. Thus, the court concluded that the first factor did not weigh in favor of placingthe burden of proof on the State.

The supreme court considered the risk of erroneous deprivation as more problematic. Orth, 124 Ill. 2d at 335, 530 N.E.2d at 214. The court concluded that State law enforcementpersonnel are unlikely to be lax in their breathalyzer procedures if they know that they may haveto prove the results or face the rescission of a summary suspension. Orth, 124 Ill. 2d at 336, 530N.E.2d at 215. This factor favored placing the burden of proof upon the State. Orth, 124 Ill. 2dat 336, 530 N.E.2d at 215.

The Orth court considered that the State's interest in preserving the safety of its highwaysis extremely important. Orth, 124 Ill. 2d at 336, 530 N.E.2d at 215. Because the State could stillremove suspect motorists from the road before a hearing, and no suspended driver could reclaimhis license until the conclusion of the hearing, this interest was deemed to be less pressing than itis in cases attacking the overall propriety of pre-hearing summary suspensions. Orth, 124 Ill. 2dat 336, 530 N.E.2d at 215. Nevertheless, the court concluded that placing the burden of proofupon the State would undeniably entail significantly greater fiscal and administrative burdens. Orth, 124 Ill. 2d at 336-37, 530 N.E.2d at 215.

Accordingly, the Orth court held that placing the burden of proof upon the suspendedmotorist would not violate his due process rights. Orth, 124 Ill. 2d at 337, 530 N.E.2d at 215. However, the supreme court stated that its ruling was "heavily influenced" by its later holdingthat the State has the burden to show the reliability of test results if the motorist makes a primafacie showing of unreliability. Orth, 124 Ill. 2d at 337, 530 N.E.2d at 215.

Considering the possibility that on remand the motorist could establish a prima facie case,the State argued in Orth that breathalyzer results may be admitted in a rescission hearing withoutlaying the usual foundation, relying on the statute's provision that "[t]he hearing may be conducted upon a review of the law enforcement officer's own official reports; provided, however,that the petitioner may subpoena the officer." Orth, 124 Ill. 2d at 338, 530 N.E.2d at 216; see625 ILCS 5/2-118.1(b) (West 2000). The supreme court rejected that argument, noting otherprovisions of law addressed the admissibility of chemical test results. The court held that oncethe motorist has made a prima facie case that the breath test result did not disclose ablood-alcohol concentration of 0.10 or more, or that the test result was inaccurate, the State canonly avoid rescission by moving for the admission of the test into evidence and laying therequired foundation. Orth, 124 Ill. 2d at 340, 530 N.E.2d at 216.

The supreme court then considered what evidence presented by the motorist will constitute a prima facie case for rescission. The court stated that "such evidence may consist of anycircumstance which tends to cast doubt on the test's accuracy, including, but not limited to,credible testimony by the motorist that he was not in fact under the influence of alcohol." Orth,124 Ill. 2d at 341, 530 N.E.2d at 217. However, "[o]nly if the trial judge finds such testimonycredible will the burden shift to the State to lay a proper foundation for the admission of the testresults." Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.

Orth is consistent with section 2-1110 of the Illinois Code of Civil Procedure, whichgoverns motions for a finding or judgment at the close of a plaintiff's case in a non-jury trial. 735ILCS 5/2-1110 (West 2000). Section 2-1110 provides that the trial court "shall weigh theevidence, considering the credibility of the witnesses and the weight and quality of the evidence." 735 ILCS 5/2-1110 (West 2000). Thus, unlike a motion for a directed verdict in a jury trial, thetrial court does not view the evidence most favorably to the non-movant, but decides whether thenon-movant has made out a prima facie case, then weighs the evidence, including that favoringthe movant; if this weighing process negates evidence necessary to the prima facie case, the courtshould enter judgment. Kokinis v. Kotrich, 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 55 (1980);Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 311, 724 N.E.2d 988, 992 (2000). In this case, the trial court's denial of the State's section 2-110 motion necessarily impliesthat Ullrich presented sufficiently credible evidence to establish and sustain a prima facie case forrecission of the summary suspension. Thus, the question is whether due process permits the trialcourt to decide that the prima facie case was negated solely by the officer's reports.

Ullrich relies on Orth to argue that after he presented a prima facie case, the State may berequired to produce evidence beyond the officer's sworn report. It could be argued that anofficer's assertions of historical fact in a sworn report should be treated differently from thatofficer's recording of breathalyzer test results, as some of the foundational facts for admitting thelatter may rest outside the officer's personal knowledge.⁽²⁾ Given that section 2-118.1 allows thecourt to decide the case on the officer's official reports, the sworn report may be compared to anaffidavit, but ex parte affidavits have long been considered the weakest and most unsatisfactoryevidence. Franklin Union, No. 4, v. People, 220 Ill. 355, 390, 77 N.E. 176, 188-89 (1906). Evenwhen evidence may be submitted by affidavit, where the facts are disputed, the proof should bepresented by the examination of witnesses, under oath, subject to cross-examination. See, e.g.,Wilson v. Wilson, 56 Ill. App. 2d 187, 195, 205 N.E.2d 639, 640 (1965).

Indeed, trial by affidavit raises confrontation and cross-examination concerns, and hasbeen consistently condemned by Illinois courts in criminal, civil, and administrative review casessince the 19th Century. People v. McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470 (2000);Balmoral Racing Club, Inc. v. Illinois Racing Bd., 151 Ill. 2d 367, 400-01, 603 N.E.2d 489, 503(1992); People ex rel. Chicago Bar Ass'n v. Amos, 246 Ill. 299, 302-03, 92 N.E. 857, 859 (1910);Union Mut. Life Ins. Co. v. Slee, 123 Ill. 57, 94-95, 13 N.E. 222, 228 (1887); Becker v. Quigg,54 Ill. 390, 394 (1870); Whiteside v. Pulliam, 25 Ill. 285, 287 (1861). "[T]he rule againsthearsay evidence 'is founded on the necessity of an opportunity for cross-examination, and is abasic and not a technical rule.'" Grand Liquor Co. v. Dept. of Revenue, 67 Ill. 2d 195, 199, 367N.E.2d 1238, 1240 (1977), quoting Novicki v. Dept. of Finance, 373 Ill. 342, 344, 26 N.E.2d130, 131 (1940). It cannot be doubted that a statute admitting police reports must account forthese constitutional concerns. See U.S. Const., art. VI, cl. 2.

In McClanahan, our supreme court struck down a statute admitting sworn policelaboratory reports in drug cases, provided that a report would not be prima facie evidence of thesubstance analyzed if the accused demanded the testimony of the person signing the report. Oursupreme court noted that the statute did not guarantee that any waiver of an accused'sconfrontation rights was knowing and voluntary. McClanahan, 191 Ill. 2d at 137, 729 N.E.2d at476-77. The court also "emphatically reject[ed] any notion that the State's constitutionalobligation to confront the accused with the witnesses against him can be satisfied by allowing theaccused to bring the State's witnesses into court himself and cross-examine them as part of hisdefense." McClanahan, 191 Ill. 2d at 139, 729 N.E.2d at 477.

McClanahan, similar to this case, involved reports generated by the State as part of aninvestigation. Such reports (unlike medical reports, business records, public records, or otherdocuments traditionally admitted under an exception to the hearsay rule) are generally deemedinadmissible hearsay, because reports relating to criminal investigations or anticipated litigationlack indicia of trustworthiness and reliability. See, e.g., People v. Smith, 141 Ill. 2d 40, 68-76,565 N.E.2d 900, 912-16 (1990). The admission of police reports gives rise to seriousconfrontation and cross-examination concerns. See Smith, 141 Ill. 2d at 76, 565 N.E.2d at 916.

Of course, McClanahan and Smith were criminal cases; this case is not. However, inBalmoral Racing Club, Inc. v. Illinois Racing Bd., 151 Ill. 2d 367, 400-01, 603 N.E.2d 489, 503(1992), which involved administrative review, our supreme court stated that "affidavits offered toestablish the truth of a matter at issue in the agency or on review should not be considered unlesssubject to some sort of adversarial examination." Our supreme court stated that it would be "amiscarriage of justice" and "a violation of basic due process protections" to consider anunexamined affidavit to establish the truth of a matter asserted. Balmoral Racing Club, Inc., 151Ill. 2d at 401, 603 N.E.2d at 503.

In this case, the trial court admitted the reports to show the officer's state of mind. Statements showing a declarant's state of mind are admissible as exceptions to the hearsay rulewhen the declarant is unavailable to testify. People v. Floyd, 103 Ill. 2d 541, 546, 470 N.E.2d293, 295 (1984). There is no showing of unavailability here. Moreover, the reports wereadmitted not only to show the officer's state of mind as to whether there were reasonable groundsto ask for a breath test, but also for the truth of matters asserted therein, i.e., that Ullrich was incontrol of the automobile and was warned of the consequences of refusing the breath test.⁽³⁾ Thus,the constitutional concerns raised by the admission of such hearsay remain.

The State relies heavily upon People v. Gafford, 218 Ill. App. 3d 492, 498, 578 N.E.2d583, 587 (1991), in which the Second District of this court ruled that a trial court could rely onuncorroborated hearsay in sworn and unsworn⁽⁴⁾ police reports to deny a petition to rescind, wherethe petitioner did not subpoena the arresting officer. Gafford relied on section 2-118.1 for itsruling, but the issue was discussed more as one of the sufficiency of the evidence than as one ofdue process. In that context, Gafford cites Moore, in which our supreme court stated that the trialcourt "may rely on law enforcement officers' official reports in the absence of the officersthemselves." Moore, 138 Ill. 2d at 167, 561 N.E.2d at 650. However, Moore merely paraphrasesthe statute; the issue in Moore was whether the results of statutory summary suspension hearingscould act as collateral estoppel in a later criminal proceeding. Moore, 138 Ill. 2d at 167, 561N.E.2d at 651. Moore did not address the due process questions raised here.

Moreover, while Gafford cites Orth for the proposition that the burden is on the motorist,it does not discuss Orth's holding that the burden of proof shifts if the motorist presents a primafacie case for recission. Nor does Gafford address the Orth court's statement that this latterholding "heavily influenced" its ruling that the statute did not violate due process. See Gafford,218 Ill. App. 3d at 498, 578 N.E.2d at 586.

The closest Gafford comes to the issue of due process may be found in a singleparagraph:

"Finally, we are also not persuaded by defendant'simpassioned plea that he did not have a fair and just hearingbecause he was denied the opportunity to cross-examine andimpeach the 'vacationing' police officer. Defendant cannot nowcomplain that he did not have this opportunity when he did nottake advantage of his right to subpoena the officer and objected tothe State's request for a continuance so that the officer could bepresent." Gafford, 218 Ill. App. 3d at 499, 578 N.E.2d at 588.

As can be seen, the Gafford court cited no authority on this point; it is possible that Gafford citednone in his appeal. Certainly, if Gafford failed to cite to relevant authority in his appeal, theissue may be deemed waived. 177 Ill. 2d R. 341(e)(7). Moreover, Gafford was correctly decidedto the extent that Gafford objected to the State's attempt to produce the arresting officer'stestimony. A party cannot complain of an alleged error which he or she induced the court tomake. McMath v. Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d 1, 3 (2000).

In this case, Ullrich did not object to any attempt by the State to continue the case toobtain the reporting officer's testimony. Instead, the record shows that Ullrich objected toadmitting various police reports, argued that considering some of the State's hearsay evidencewould violate his due process rights, and complained about the absence of the police officers. Ullrich has supported his due process argument with citations to relevant authority. UnlikeGafford, Ullrich cannot be said to have waived his due process argument in those regards.

The State is left with the argument that Ullrich waived his due process rights by failing totake advantage of his right to subpoena the officer. In Richardson v. Perales, 402 U.S. 389, 402,28 L. Ed. 2d 842, 853, 91 S. Ct. 1420, 1429 (1971), the Supreme Court held that a claimant couldbe denied Social Security disability benefits based on written medical reports, despite theirhearsay character, where the claimant had not subpoenaed the reporting physicians.

Perales, however, differs from this case on a number of grounds. The "substantialevidence" standard applied to Social Security disability benefit hearings is lower than thepreponderance of the evidence standard applicable to section 2-118.1 hearings. See Perales, 402U.S. at 402, 28 L. Ed. 2d at 853, 91 S. Ct. at 1429; Consolo v. Federal Maritime Comm'n, 383U.S. 607, 620, 16 L. Ed. 2d 131, 140, 86 S. Ct. 1018, 1026-27 (1966); In re Trainor, 156 Ill. App.3d 918, 921, 510 N.E.2d 614, 616-17 (1987). Also, Perales did not involve the termination ofbenefits already granted. Perales, 402 U.S. at 407, 28 L. Ed. 2d at 855-56, 91 S. Ct. at 1430. This case involves the suspension of a driver's license already obtained by Ullrich.

Administrative burdens and costs would be imposed by requiring live testimony in eithertype of hearing. Perales, 402 U.S. at 406, 28 L. Ed. 2d at 855, 91 S. Ct. at 1430; Orth, 124 Ill. 2dat 336-37, 530 N.E.2d at 215. That concern was not controlling in Perales. 402 U.S. at 407, 28L. Ed. 2d at 855, 91 S. Ct. at 1430. Nor was it controlling in Orth, to the extent that the Statemay be required to go beyond the officer's reports. A rule that the motorist must preemptivelysubpoena the officer or risk a defeat based solely on the reports would impose its own costs andburdens on the State, unless the rule is allowed to become a trap for those unaware of it.

The Perales Court further stated that "the specter of questionable credibility and veracityis not present" regarding the medical reports. 402 U.S. at 407, 28 L. Ed. 2d at 856, 91 S. Ct. at1430. An agency or court may be able to rely on a corroborated sworn report by a police officeras impartial in the context of a pre-deprivation driver's license suspension process. Mackey, 443U.S. at 14, 61 L. Ed. 2d at 332, 99 S. Ct. at 2619. A section 2-118.1 hearing may occur eitherbefore or after the effective date of the suspension, depending largely upon the motorist'sdiligence in seeking review. See People v. Esposito, 121 Ill. 2d 491, 507, 521 N.E.2d 873, 880(1988). Thus, a section 2-118.1 hearing may be characterized as a pre-deprivation hearing. SeeIllinois v. Batchelder, 463 U.S. 1112, 1118, 77 L. Ed. 2d 1267, 1272, 103 S. Ct. 3513, 3516(1983) (construing statutory predecessor to section 2-118.1); People v. Gerke, 123 Ill. 2d 85, 91-92, 525 N.E.2d 68, 71 (1988) (measuring the constitutional import of any delay in the hearingfrom the effective date of the suspension); People v. Sarver, 262 Ill. App. 3d 513, 515, 636N.E.2d 1031, 1032 (1994).⁽⁵⁾

However, Batchelder held that due process did not require an officer's affidavit to recitespecific facts supporting the officer's beliefs because the motorist had the right to a hearingbefore his or license was suspended. Batchelder, 463 U.S. at 1119, 77 L. Ed. 2d at 1273, 103 S.Ct. at 3517. Such a hearing would be worthless if the trial court could then rely entirely on thenon-specific report; the Court obviously envisioned that further evidence would be adduced atthe hearing. Similarly, the Mackey Court stated that pre-deprivation procedures need onlyprovide a reasonably reliable basis for concluding that the facts justifying an official action are asa responsible government official warrants them to be, when prompt post-deprivation review isavailable for the correction of administrative error. Mackey, 443 U.S. at 13, 61 L. Ed. 2d at 331,99 S. Ct. at 2618. The Mackey Court also stated that:

"even when disputes as to the historical facts do arise, we are notpersuaded that the risk of error inherent in the statute's initialreliance on the representations of the reporting officer is sosubstantial in itself as to require that the Commonwealth stay itshand pending the outcome of any evidentiary hearing necessary toresolve questions of credibility or conflicts in the evidence." Mackey, 443 U.S. at 15, 61 L. Ed. 2d at 333, 99 S. Ct. at 2619(emphases added).

In this case, a motorist cannot seek to rescind a suspension that does not exist; thus, post-suspension review does not involve an initial reliance on the officer's sworn report. Moreover,while the Illinois Vehicle Code in some cases provides for the lifting of a statutory summarysuspension after some portion of it has been completed, or the issuance of a limited drivingpermit, the State identifies no other method for recission of a statutory summary suspension. See625 ILCS 5/2-206.1, 2-208.1 (West 2000). Thus, a section 2-118.1 hearing, regardless ofwhether it constitutes pre- or post-deprivation review, must provide an opportunity for resolvingquestions of credibility and fact, as contemplated by Batchelder and Mackey. A prompt hearingreduces the risk that a driver will be erroneously deprived of his or her license, but does noteliminate a constitutional defect in the hearing itself, which is what is alleged here.

Perales involved the consideration of multiple independent, consistent medicalevaluations, prepared by presumably unbiased physicians, traditionally admitted at trials under anexception to the hearsay rule. See 402 U.S. at 402-06, 28 L. Ed. 2d at 853-55, 91 S. Ct. at 1428-29. In this case, as noted above, police reports prepared in an investigation or in anticipation oflitigation generally lack the indicia of trustworthiness and reliability to be admitted as anexception to the hearsay rule. Outside the sort of initial reliance on sworn police statementsapproved in Mackey, courts have recognized that the relationship between police officers andtheir arrestees is more personal and adversarial than that of those who prepare scientific ormedical reports. See, e.g., United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986). Even whenconsidering sworn live testimony, police officers traditionally have not been presumed to tell thetruth as a matter of law. E.g., People v. Hawkins, 243 Ill. App. 3d 210, 222, 611 N.E.2d 1069,1078 (1993).

In short, section 2-118.1, like the scheme in Perales, seeks to avoid constitutionalproblems of confrontation and cross-examination by linking consideration of the official reportsto the motorist's right to subpoena the officer. This case differs from Perales in a number ofsignificant respects that may suggest the State cannot rebut a prima facie case with the officer'sofficial reports alone. On the other hand, a section 2-118.1 hearing is an administrative device,not a criminal proceeding like McClanahan. In this context, the Supreme Court has held that acourt or agency may rely to some degree on a sworn police report, so long as the motoristultimately has an opportunity for cross-examination at an evidentiary hearing.

A statute is presumed to be constitutional; the party challenging its validity has theburden to clearly establish invalidity. Russell v. Department of Natural Resources, 183 Ill. 2d434, 441, 701 N.E.2d 1056, 1059-60 (1998). Ullrich has not clearly established that section 2-118.1 is unconstitutional in this case. Thus, we hold that the motorist's right to subpoena theofficer affords an adequate opportunity for cross-examination in the context of these proceedings.

Moreover, the motorist may waive his or her right to subpoena the officer. Statutory andconstitutional rights may be waived as long as the waiver is knowing, voluntary, and intentional. E.g., Suburban Downs, Inc. v. Illinois Racing Bd., 316 Ill. App. 3d 404, 414-15, 735 N.E.2d 697,704-05 (2000); In re Estate of Ferguson, 313 Ill. App. 3d 931, 937, 730 N.E.2d 1205, 1210(2000). To waive rights intelligently and knowingly, one must at least understand basically whatthose rights encompass and minimally what their waiver will entail. E.g., In re W.C., 167 Ill. 2d307, 328, 657 N.E.2d 908, 919 (1995).⁽⁷⁾

In this case, the Secretary of State's confirmation of the suspension directs the motorist toreview information on the reverse of the notice outlining procedures for reinstating drivingprivileges, judicial review and restricted permits. The reverse side of the court copy in the recordon appeal is blank. Nor do the transcripts of proceedings show that the motorist was informed ofhis right to subpoena and the potential consequences of not exercising it.

Moreover, the trial court here continued the case, at the State's request, to a date keyed tothe arresting officer's schedule, which may have unintentionally lulled Ullrich into believing hewould be able to question the officer at the hearing. This court has warned of the danger that theState could effectively defeat a motorist's rights by discouraging an officer from appearing. SeePeople v. Tran, 319 Ill. App. 3d 841, 843, 746 N.E.2d 320, 322 (2001). In this case, it seems thatthe State notified the officers and that they intended to appear, but were required to appearelsewhere. Nevertheless, this case demonstrates the danger raised where there is no showing thatthe motorist was informed of his right to subpoena and the consequences of failing to exercise it,and knowingly and intelligently waived it.⁽⁸⁾

In sum, we hold that the procedure in section 2-118.1, allowing the consideration of theofficer's official reports, subject to the motorist's right to subpoena the officer, comports with dueprocess of law. However, any waiver of the motorist's right to subpoena the officer must beknowing, voluntary, and intentional. As there was no showing of such a waiver here, the trialcourt erred in denying the petition based on the officer's official reports, once the motoristpresented a prima facie case for recission.

For all of the aforementioned reasons, the order of the circuit court of Cook County isreversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

REID, J., concurs.

GREIMAN, J., specially concurs.

JUSTICE REID, specially concurring:

While I concur in the result of the majority opinion, I feel compelled to write separatelyon the issue of trial by affidavit. I believe the way the trial court conducted the hearingimplicates section 2-118.1 of the Illinois Vehicle Code in a way that is unconstitutional asapplied to this defendant and these peculiar facts and circumstances. (625 ILCS 5/2-118.1 (West2000)). That statute reads, in relevant part, as follows:

"The hearing may be conducted upon a review of the lawenforcement officer's own official reports; provided however, thatthe person may subpoena the officer. Failure of the officer toanswer the subpoena shall be considered grounds for a continuanceif in the court's discretion the continuance is appropriate." (625ILCS 5/2-118.1(b) (West 2000)); Slip op. at 5.

The trial court reviewed the reports in this case because the officers did not attend thecontinued hearing. These reports were tantamount to an affidavit, and not a particularlycompelling one at that, because they contain essentially unsworn matter. This material comesinto evidence because of actions by the legislature and a quirk in the law which opens the door toa form of trial by affidavit. I concur that "trial by affidavit raises confrontation and cross-examination concerns, and has been consistently condemned by Illinois courts in criminal, civiland administrative review cases since the 19th century." Slip Op. at 10 (citations omitted). Ialso agree that "ex parte affidavits have long been considered the weakest and mostunsatisfactory evidence." Slip Op. at 10, citing Franklin Union, No. 4 v. People, 220 Ill. 355,390, 77 N.E. 176, 188-89 (1906).

The officers in question were available at the original hearing, but that hearing wascontinued pursuant to a motion by the State. I agree that the granting of the continuance "mayhave unintentionally lulled Ullrich into believing he would be able to question the officer at thehearing." Slip Op. at 19. I believe that, by moving the hearing date based on a motion by theState from a point when the police were present to another date that coincides with the policeofficer's key numbered court date, the burden should shift to the State to make sure the police arepresent at the continued hearing. If they are not, I do not believe the defendant should be made tosuffer, because his reliance was reasonable. It is that upon which Ullrich, and other defendantssimilarly situated, should have the right to rely. In light of the constitutional rights andcompelling interests at stake, the trial court should have treated this unique situation as if Ullrichhad subpoenaed the officer. To hold otherwise would be not only to deny Ullrich procedural dueprocess, but to open the door to abuses by an unscrupulous prosecutor who could hide the policeofficer in favor of the reports which cannot be cross examined. It simply creates the opportunityfor too much mischief. The statute is fatally flawed because it gives a defendant no guaranteedright to confrontation, but only the right to ask for a continuance at the court's discretion when apolice officer refuses to honor a subpoena. We don't have to reach that issue in this peculiarcase, however, because I believe the trial court was wrong to have deemed the failure to issue asubpoena as a waiver of the motorist's right to do so. We should not limit our inquiry to whethera purported waiver after the presentation of a prima facie case for rescission was knowingly,voluntarily and intentionally made. I would go even farther. Under these facts andcircumstances, I believe the right to have the officer appear cannot be waived as a matter of law.

JUSTICE GREIMAN, dissenting:

After considering the tack the majority takes in arriving to its conclusion and its ultimateholding, I must respectfully dissent. The majority begins by outlining Ullrich's primary argumentthat the trial court's consideration of unsworn police reports violated his right to due process oflaw. It then carefully catalogues an assortment of civil, criminal, and administrative cases thathave denounced the practice of "trial by affidavit" where a party's right to confrontation andcross-examination is impaired. After that in-depth analysis, however, the majority declines toanswer Ullrich's argument because it finds that "the essential disputed facts in this case areaddressed in the sworn report" and that "[t]he information in the unsworn reports wascumulative." Slip op. at 13, n. 4.

Despite this seeming conclusion, however, it then finds that Ullrich properly preserved adue process argument by his objection "to admitting various police reports, argu[ing] thatconsidering some of the State's hearsay evidence would violate his due process rights, andcomplain[ing] about the absence of police officers." Slip op. at 14. In finding that Ullrichpresented an adequate case for a due process violation, the majority leads the reader to believethat it would find the admittance of both sworn and unsworn reports to be unconstitutional. Certainly, there would be no need to note defendant's proper preservation of his due processargument if the majority did not believe that the constitutionality argument was, at least, well-founded. However, it asserts that it does not so hold. Instead, it claims that Ullrich's right tosubpoena protects his due process concerns in that it provides him an adequate opportunity forcross-examination and confrontation.

In the end, the majority reverses the trial court for its error in holding that Ullrich hadwaived his right to subpoena because there was no evidence that his waiver was knowing,voluntary, and intentional. While I agree that the right to subpoena protects the defendant's dueprocess concerns, I find sufficient evidence that his waiver was knowing, voluntary, andintentional. He was represented by counsel and the right to subpoena is expressly stated insection 2-118. In any event, I find that the trial court's use and acceptance of the police officer'sunsworn reports comports with due process of law.

The majority acknowledges that this court's decision in People v. McIntire, 236 Ill. App.3d 732 (1992), stands for the proposition that all of an officer's reports may be consideredwithout a foundation for admission into evidence, and then ignores that decision. Slip op. at 9-10. In making special note that McIntire was a fourth district decision, it calls into questionwhether it is still good law. I believe that it is, and see little in the cases the majority cites thatwould cause me to deviate from that belief. See also, People v. Gafford, 218 Ill. App. 3d 492(1991); In re Suspension of Vaughn, 164 Ill. App. 3d 49 (1987).

In admitting all of an officer's filed official reports, the McIntire court compared itsposition to that prescribed by section 5-4-1(a)(2) of the Unified Code of Corrections, whichpermits the admittance of all presentence reports in criminal cases at sentencing. McIntire, 236Ill. App. 3d at 737, citing 730 ILCS 5/5-4-1(a)(2) (West 2000), formerly Ill. Rev. Stat.1991, ch.38, par. 1005-4-1(a)(2); Slip op. at 9, n.2.

Regardless of whether McIntire analogized section 2-118.1 proceedings to what themajority might deem to be an improper context, the fact remains that the reasoning employed bythe McIntire court in admitting all of an officer's official filed reports is undeniably linked to theessence of the criminal statute. As McIntire explained, "the report is stated to be the heart of theproceeding." McIntire, 236 Ill. App. 3d at 737. See also People v. Williams, 149 Ill. 2d 467(1992), which held that for sentencing purposes, a presentence report is generally a reliablesource for the purpose of inquiring into defendant's criminal history. Here, too, the reports arethe heart of the proceedings.

The main purpose behind a section 2-118.1 hearing is to determine "whether the officerhad reasonable grounds to believe that the person was driving or in actual physical control of amotor vehicle upon a highway while under the influence of alcohol, other drug, or combinationof both" through consideration of aggravating and mitigating factors that have no bearing on thecourt's ultimate determination of guilt. As in sentencing hearings, the best way to arrive at thatdetermination is through a review of official reports that reveal and recount those factors inaggravation and mitigation.

In this case, that would entail reports that relate the officer's observations and how theyrelated to his state of mind. The majority chastises the trial court's admittance of the reports toshow the officer's state of mind because of a lack of a showing of the officer's unavailability. Slip op. at 12, citing People v. Floyd, 103 Ill. 2d 541, 546 (1984). Under other circumstances, Iwould concur. However, as stated by the trial court, the issue at a recission hearing is notwhether the petitioner was actually driving while drunk, but only whether the officer had"reasonable grounds" for requesting him to take a breath test. A determination of whether"reasonable grounds" exist in these situations necessarily involves -and is inevitably attached to- an inquiry of the state of mind of the officer. Indeed, "[t]o determine whether reasonablegrounds/probable cause existed, the trial court must determine whether a reasonable and prudentperson, having the knowledge possessed by the officer at the time of the arrest, would believe thedefendant committed the offense." People v. Fortney, 297 Ill. App. 3d 79, 87 (1998). For inthese types of situations, the trial court has no evidence by which it can make a determination of"reasonable grounds" other than the written accounts of the situation, whether those accounts aresworn or unsworn. Without question, the reports truly are at the heart of the proceedings.

Accordingly, the unsworn reports and other hearsay go not to the truth of the matterasserted, but assist only in advancing the purpose of the hearing - the determination of theofficer's state of mind (i.e., whether the officer has competently indicated the existence of"reasonable grounds"). Such evidence is, therefore, admissible. And while I agree with themajority that even sworn reports, which are akin to ex parte affidavits, have been held to be "theweakest and most unsatisfactory evidence" (slip op. at 10, citing Franklin Union, No. 4 v. People,220 Ill. 355, 390 (1906), our job in the present case is not to determine the relative weight of theevidence, but rather its admissibility. Certainly, reports that carry strong indicia of reliability,such as the fact that they were sworn to under penalty of perjury, should be afforded the mostweight. However, such notions are out of place in the present circumstance.

Of course, statutory interpretation is necessary only where the words themselves areambiguous. As this court stated in In re Estate of Ahmed, 322 Ill. App. 3d 741, 745 (2001):

"It is axiomatic that in construing a statute, the first step is to determine and giveeffect to the intent of the legislature in passing the law by considering ' "the reasonand necessity for the law, the evils it was intended to remedy, and its ultimateaims." ' Village of Mundelein[ v. Franco], 317 Ill. App. 3d [512, 517 (2000)],quoting People v. Pullen, 192 Ill. 2d 36, 42 1238 (2000). An analysis of statutoryconstruction starts with the language of the statute itself, which this court shouldexamine for its plain and ordinary meaning before other interpretive aids areconsulted. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164(1998). Where the language of a statute is ambiguous, a court may resort to othermeans of statutory interpretation, such as legislative history, in order to determinethe legislature's intent. Armstrong v. Hedlund Corp., 316 Ill. App. 3d 1097, 1106(2000)."

In the present case, the language of section 2-118.1(b) states that an officer's "own officialreports" are admissible at the hearings. It is well established that official reports are "[a]llrecords and reports prepared by public officials pursuant to a duty imposed by law or required bythe nature of their offices" (Krause v. Pekin Life Insurance Co., 194 Ill. App. 3d 798, 804(1990)), and that such reports "are admissible as proof of facts stated therein so far as they arerelevant and material to a particular inquiry." Krause, 194 Ill. App. 3d at 804, citing Departmentof Conservation v. First National Bank of Lake Forest, 36 Ill. App. 3d 495(1976). Such languageis entirely unambiguous, as the legislature necessarily would have included the requirement thatthe reports be "sworn" in addition to being "official" if it so intended. Accordingly, not only do Ifind the majority's exercise of statutory interpretation to be unreflective of the law, but altogetherunnecessary.

It is difficult to understand the majority's reluctance to find section 2-118.1unconstitutional. After pages of lambasting the practice of "trial by affidavit" and hoveringaround the issue of whether the defendant received due process, the majority concludes that"Ullrich has not clearly established that section 2-118.1 is unconstitutional" because "themotorist's right to subpoena the officer affords an adequate opportunity for cross-examination inthe context of these proceedings." (Emphasis in original.) Slip op. at 18. What, then, is thereader to take from the majority's intense distaste for the singular reliance upon sworn orunsworn reports in section 2-118.1 proceedings? And if the majority believes, as it apparentlydoes, that the admission of unsworn reports is nefarious enough to constitute a potential dueprocess violation, how can it reconcile that belief with the reality that the admittance of swornreports presents the same confrontational and cross-examination problems as sworn reports? Theanswers to these questions are unclear.

Ultimately, however, the majority reverses, holding that there was no evidence thatUllrich's waiver of his right to subpoena was knowing, voluntary, and intentional. It finds thatbecause the information regarding license reinstatement, judicial review, and restricted permitswas missing from the reverse side of the court copy in the record on appeal, there was noevidence to demonstrate that the motorist was informed of his right to subpoena. However,records from the Illinois Secretary of State's Office, which are public records that this court maytake judicial notice of (see Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill. App. 3d935, 938 (1998)), indicate that "confirmations of suspension" sent by the Secretary of State do, infact, list all of that information on the reverse side. Moreover, while it is true that thecontinuance of the case "to a date keyed to the arresting officer's schedule *** may haveunintentionally lulled Ullrich into believing he would be able to question the officer at thehearing" (slip op. at 19), the fact remains that Ullrich himself never moved for a continuancefrom that later date to secure the officer's presence. Because I believe that Ullrich was aware ofhis rights and simply chose not to exercise them, he waived his right to subpoena.

Accordingly, I respectfully dissent.

1. During oral argument, Ullrich's counsel asserted that the DUI prosecution ultimately"failed." The recording of the oral argument is unclear as to whether this assertion referred to amotion to suppress being granted that impaired the case, whether petitioner was acquittedfollowing a trial on the merits, or both. Of course, the disposition of the criminal case is separatefrom this case, and petitioner did not place evidence regarding it into the record on appeal.

2. The State relies on People v. McIntire, 236 Ill. App. 3d 732, 736-37, 602 N.E.2d 938,940-41 (1992), a Fourth District decision allowing all of an officer's reports to be consideredwithout a foundation for admission into evidence. McIntire compares the officer's officialreports to presentence reports in criminal cases. McIntire, 236 Ill. App. 3d at 737, 602 N.E.2d at941. Section 2-118.1 hearings are civil proceedings. Moreover, in criminal cases: the rules ofevidence are traditionally relaxed after guilt has been ascertained at a trial; and post-sentencingreports traditionally have been deemed reliable. People v. Williams, 149 Ill. 2d 467, 469-71, 599N.E.2d 913, 923-24 (1992). The sworn report functions like a pleading in a civil proceeding. See People v. McClain, 128 Ill. 2d 500, 507, 539 N.E.2d 1247, 1250 (1989). Such documentsgenerally may be filed with the trial court with a certification, but without the necessity of aformal evidentiary foundation. However, this analogy does not account for the admission ofother reports without the proper foundation.

3. The State argues that even if the reports were substantively inadmissible, they couldstill be used for impeachment purposes. The State cites 725 ILCS 5/115-5 (West 2000), aprovision of the Illinois Code of Criminal Procedure inapplicable to a civil hearing. The Statealso cites People v. Strausberger, 151 Ill. App. 3d 832, 503 N.E.2d 832 (1987), a criminal caseadmitting a police report as past recollection recorded, which referred impeachment only inpassing. Nor does the State explain how the reports discredit Ullrich or Moreth, aside from thehearsay account of the incident. Thus, the State's argument is waived, as the issue was notadequately addressed. See People v. Rose, 268 Ill. App. 3d 174, 183, 643 N.E.2d 865, 871-72(1994).

4. The Gafford court held that the issue of the admissibility of an unsworn police reporthad been waived because it was not raised in the trial court. Gafford, 218 Ill. App. 3d at 499, 578N.E.2d at 588. The Gafford court noted in dicta that it had been held that unsworn police reportsmay properly be admitted. Gafford, 218 Ill. App. 3d at 499, 578 N.E.2d at 588, citing In reSummary Suspension of Driver's License of Vaughn, 164 Ill. App. 3d 49, 52, 517 N.E.2d 699,701 (1987). Vaughn was decided before Orth; no due process issue was raised therein. Nevertheless, the essential disputed facts in this case are addressed in the sworn report. Theinformation in the unsworn reports was cumulative. Thus, we need not reach the issue of theadmissibility of the unsworn reports here.

5. Sarver held that where a defendant can participate in a pre-deprivation hearing, there isno due process violation even where the sworn report is inadequate. However, in Sarver, unlikethis case, the arresting officer testified. Sarver, 262 Ill. App. 3d at 514, 636 N.E.2d at 1032.⁽⁶⁾

6. Sarver also referred to a section 2-118.1 hearing occurring before the effective date ofthe suspension as a pre-suspension hearing. A section 2-118.1 hearing may occur either before orafter the effective date of the suspension, depending largely upon the motorist's diligence inpetitioning for a hearing. People v. Esposito, 121 Ill. 2d 491, 507, 521 N.E.2d 873, 880 (1988). However, in Esposito, our supreme court twice referred to the procedure at issue here as one ofpost-suspension review. Esposito, 121 Ill. 2d at 506, 521 N.E.2d at 880. Regardless of whetherthe review predates the effective date of a suspension, the process cannot begin until after thedecision to suspend has been made. See 625 ILCS 5/2-118.1(a) (West 2000). However, inPeople v. Gerke, 123 Ill. 2d 85, 91-92, 525 N.E.2d 68, 71 (1988), the court again referred tosection 2-118.1 as providing post-suspension review, but measured the constitutional significanceof any delay in holding the hearing from the effective date of the suspension.

The availability of a hearing prior to the effective date of the suspension, howevercharacterized, eliminates some of the danger that a motorist will be erroneously deprived of his orher driver's license. However, this safeguard does not protect a motorist from a constitutionaldefect in the hearing itself, which is what is alleged in this case. -

7. The importance of a knowing and intentional waiver is underscored by the sui generisnature of the hearing. See People v. Cooper, 174 Ill. App. 3d 500, 502, 528 N.E.2d 1011, 1012(1988). Prior to 1994, section 2-118.1 provided that the trial court shall consider the failure ofthe officer to answer a subpoena to be "the same as the failure of a complaining witness to appearin any criminal proceeding," i.e., the State would "nol pros" the case. See People v. Moony, 206Ill. App. 3d 422, 425, 564 N.E.2d 192, 194 (1990). Although section 2-118.1 was later amendedto provide that a subpoenaed officer's failure to appear may be grounds for a continuance, it mustbe noted that the burden of producing a police officer is generally not placed upon the motorist incases arising under the Illinois Vehicle Code. The issue was not even settled until Orth. Thenature of the hearing thus increases the risk that a motorist will be unaware of his rights.

8. We note on a practical level that the officer's sworn report in this case bore only the lastname of the officer and an "identifying number." The last name does not appear to be a commonone, and would not necessarily be clear to the motorist. Indeed, the arrest report, which requiresthat the arresting officer's name be printed, bears the name "Loquercio," whereas the alcoholinfluence report has the printed name as "Loquerco." An affidavit must be signed by thedeponent or his name must appear therein as the person who took the oath, in order to constitutea formal affidavit. Northrop v. Lopatka, 242 Ill. App. 3d 1, 7, 610 N.E.2d 806, 811 (1993). Thismay not be a case where a doubt regarding identity is fatal. See, e.g., People v. Brown, ___ Ill.App. 3d ___, 759 N.E.2d 582 (2001). However, such errors, if replicated in other identifiers,may pose obstacles to subpoenaing an officer or raise questions regarding the certification of thereport.