dissenting:
After considering the tack the majority takes in arriving to its conclusion and its ultimate holding, I must respectfully dissent. The majority begins by outlining Ullrich’s primary argument that the trial court’s consideration of unsworn police reports violated his right to due process of law. It then carefully catalogues an assortment of civil, criminal, and administrative cases that have denounced the practice of “trial by affidavit” where a party’s right to confrontation and cross-examination is impaired. After that in-depth analysis, however, the majority declines to answer Ullrich’s argument because it finds that “the essential disputed facts in this case are addressed in the sworn report” and that “[t]he information in the unsworn reports was cumulative.” 328 Ill. App. 3d at 821 n.4.
Despite this seeming conclusion, however, it then finds that Ullrich properly preserved a due process argument by his objection “to admitting various police reports, argu[ing] that considering some of the State’s hearsay evidence would violate his due process rights, and complain[ing] about the absence of police officers.” 328 Ill. App. 3d at 822. In finding that Ullrich presented an adequate case for a due process violation, the majority leads the reader to believe that 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 process argument 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 to subpoena protects his due process concerns in that it provides him an adequate opportunity for cross-examination and confrontation.
In the end, the majority reverses the trial court for its error in holding that Ullrich had waived 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 due process concerns, I find sufficient evidence that his waiver was knowing, voluntary, and intentional. He was represented by counsel and the right to subpoena is expressly stated in section 2 — 118. In any event, I find that the trial court’s use and acceptance of the police officer’s unsworn 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 considered without a foundation for admission into evidence, and then ignores that decision. 328 Ill. App. 3d at 819 n.2. In making special note that McIntire was a Fourth District decision, it calls into question whether it is still good law. I believe that it is and see little in the cases the majority cites that would cause me to deviate from that belief. See also People v. Gafford, 218 Ill. App. 3d 492 (1991); In re Summary Suspension of Driver’s License of Vaughn, 164 Ill. App. 3d 49 (1987).
In admitting all of an officer’s filed official reports, the McIntire court compared its position to that prescribed by section 5 — 4—1(a)(2) of the Unified Code of Corrections, which permits the admittance of all presentence reports in criminal cases at sentencing. McIntire, 236 Ill. 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)); 328 Ill. App. 3d at 819 n.2.
Regardless of whether McIntire analogized section 2 — 118.1 proceedings to what the majority might deem to be an improper context, the fact remains that the reasoning employed by the McIntire court in admitting all of an officer’s official filed reports is undeniably finked to the essence of the criminal statute. As McIntire explained, “the report is stated to be the heart of the proceeding.” 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 reliable source for the purpose of inquiring into defendant’s criminal history). Here, too, the reports are the heart of the proceedings.
The main purpose behind a section 2 — 118.1 hearing is to determine “[w]hether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both” (625 ILCS 5/2 — 118.1 (West 2000)) through consideration of aggravating and mitigating factors that have no bearing on the court’s ultimate determination of guilt. As in sentencing hearings, the best way to arrive at that determination is through a review of official reports that reveal and recount those factors in aggravation and mitigation.
In this case, that would entail reports that relate the officer’s observations and how they related to his state of mind. The majority chastises the trial court’s admittance of the reports to show the officer’s state of mind because of a lack of a showing of the officer’s unavailability. 328 Ill. App. 3d at 820-21, citing People v. Floyd, 103 Ill. 2d 541, 546 (1984). Under other circumstances, I would concur. However, as stated by the trial court, the issue at a rescission hearing is not whether 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 reasonable grounds/probable cause existed, the trial court must determine whether a reasonable and prudent person, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.” People v. Fortney, 297 Ill. App. 3d 79, 87 (1998). For in these 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 are sworn 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 matter asserted, but assist only in advancing the purpose of the hearing — the determination of the officer’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 the majority that even sworn reports, which are akin to ex parte affidavits, have been held to be “the weakest and most unsatisfactory evidence” (328 Ill. App. 3d at 819, 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 the evidence 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 most weight. However, such notions are out of place in the present circumstance.
Of course, statutory interpretation is necessary only where the words themselves are ambiguous. 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 give effect to the intent of the legislature in passing the law by considering '“the reason and necessity for the law, the evils it was intended to remedy, and its ultimate aims.” ’ Village of Mundelein [v. Franco], 317 Ill. App. 3d [512, 517, 740 N.E.2d 801, 805 (2000)], quoting People v. Pullen, 192 Ill. 2d 36, 42, 733 N.E.2d 1235, 1238 (2000). An analysis of statutory construction starts with the language of the statute itself, which this court should examine for its plain and ordinary meaning before other interpretive aids are consulted. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164, 692 N.E.2d 306, 312 (1998). Where the language of a statute is ambiguous, a court may resort to other means of statutory interpretation, such as legislative history, in order to determine the legislature’s intent. Armstrong v. Hedlund Corp., 316 Ill. App. 3d 1097, 1106, 738 N.E.2d 163, 171 (2000).”
In the present case, the language of section 2 — 118.1(b) states that an officer’s “own official reports” are admissible at the hearings. It is well established that official reports are “[a]ll records and reports prepared by public officials pursuant to a duty imposed by law or required by the 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 are relevant and material to a particular inquiry” (Krause, 194 Ill. App. 3d at 804, citing Department of Conservation v. First National Bank of Lake Forest, 36 Ill. App. 3d 495 (1976)). Such language is entirely unambiguous, as the legislature necessarily would have included the requirement that the reports be “sworn” in addition to being “official” if it so intended. Accordingly, not only do I find the majority’s exercise of statutory interpretation to be unreflective of the law, but altogether unnecessary.
It is difficult to understand the majority’s reluctance to find section 2 — 118.1 unconstitutional. After pages of lambasting the practice of “trial by affidavit” and hovering around 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 “the motorist’s right to subpoena the officer affords an adequate opportunity for cross-examination in the context of these proceedings.” (Emphasis in original.) 328 Ill. App. 3d at 825. What, then, is the reader to take from the majority’s intense distaste for the singular reliance upon sworn or unsworn reports in section 2 — 118.1 proceedings? And if the majority believes, as it apparently does, that the admission of unsworn reports is nefarious enough to constitute a potential due process violation, how can it reconcile that belief with the reality that the admittance of sworn reports presents the same confrontational and cross-examination problems as sworn reports? The answers to these questions are unclear.
Ultimately, however, the majority reverses, holding that there was no evidence that Ullrich’s waiver of his right to subpoena was knowing, voluntary, and intentional. It finds that because the information regarding license reinstatement, judicial review, and restricted permits was missing from the reverse side of the court copy in the record on appeal, there was no evidence 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 may take judicial notice of (see Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill. App. 3d 935, 938 (1998)), indicate that “confirmations of suspension” sent by the Secretary of State do, in fact, list all of that information on the reverse side. Moreover, while it is true that the continuance of the case “to a date keyed to the arresting officer’s schedule *** may have unintentionally lulled Ullrich into beheving he would be able to question the officer at the hearing” (328 Ill. App. 3d at 826), the fact remains that Ullrich himself never moved for a continuance from that later date to secure the officer’s presence. Because I believe that Ullrich was aware of his rights and simply chose not to exercise them, he waived his right to subpoena.
Accordingly, I respectfully dissent.