specially concurring:
While I concur in the result of the majority opinion, I feel compelled to write separately on the issue of trial by affidavit. I believe the way the trial court conducted the hearing implicates section 2 — 118.1 of the Illinois Vehicle Code in a way that is unconstitutional as applied to this defendant and these peculiar facts and circumstances. 625 ILCS 5/2 — 118.1 (West 2000). That statute reads, in relevant part, as follows:
“The hearing may be conducted upon a review of the law enforcement officer’s own official reports; provided however, that the person may subpoena the officer. Failure of the officer to answer the subpoena shall be considered grounds for a continuance if in the court’s discretion the continuance is appropriate.” 625 ILCS 5/2 — 118.1(b) (West 2000).
The trial court reviewed the reports in this case because the officers did not attend the continued hearing. These reports were tantamount to an affidavit, and not a particularly compelling one at that, because they contain essentially unsworn matter. This material comes into evidence because of actions by the legislature and a quirk in the law which opens the door to a 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, civil, and administrative review cases since the nineteenth century.” 328 Ill. App. 3d at 819. I also agree that “ex parte affidavits have long been considered the weakest and most unsatisfactory evidence.” 328 Ill. App. 3d at 819, 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 was continued pursuant to a motion by the State. I agree that the granting of the continuance “may have unintentionally lulled Ullrich into believing he would be able to question the officer at the hearing.” 328 Ill. App. 3d at 826. I believe that, by moving the hearing date based on a motion by the State from a point when the police were present to another date that coincides with the police officer’s key numbered court date, the burden should shift to the State to make sure the police are present at the continued hearing. If they are not, I do not believe the defendant should be made to suffer, because his reliance was reasonable. It is that upon which Ullrich, and other defendants similarly situated, should have the right to rely. In light of the constitutional rights and compelling interests at stake, the trial court should have treated this unique situation as if Ullrich had subpoenaed the officer. To hold otherwise would be not only to deny Ullrich procedural due process, but to open the door to abuses by an unscrupulous prosecutor who could hide the police officer in favor of the reports, which cannot be cross-examined. It simply creates the opportunity for too much mischief. The statute is fatally flawed because it gives a defendant no guaranteed right to confrontation, but only the right to ask for a continuance at the court’s discretion when a police officer refuses to honor a subpoena. We do not have to reach that issue in this peculiar case, however, because I believe the trial court was wrong to have deemed the failure to issue a subpoena as a waiver of the motorist’s right to do so. We, should not limit our inquiry to whether a purported waiver after the presentation of a prima facie case for rescission was knowingly, voluntarily and intentionally made. I would go even further. Under these facts and circumstances, I believe the right to have the officer appear cannot be waived as a matter of law.