If you have been issued a traffic ticket or charged with a misdemeanor in Illinois and appeared in court or failed to appear and had a bench warrant issued, chances are you have not been charged with an offense and have no duty to appear in court to answer the charges. If you have pleaded or were found guilty for a traffic infraction or misdemeanor then you probably pleaded to a nonexistent charge. If either is the case, I recommend you contact me. There may be a way to get your judgment voided since the court did not have jurisdiction in the first place. I have seen hundreds of traffic tickets, as well as a fair share of complaints and informations. I have yet to see a warrant issued by a judge and supported by affidavit, or an information signed and swore to by the State’s Attorney. Traffic tickets are not complaints and you have no obligation to appear in court for a traffic ticket.
I have written numerous times on the issue of defective charges issued by police and prosecutors in Illinois, particularly St. Clair County. I will walk through the lawful requirements for charging an offense and how the State either willfully or ignorantly files insufficient and unlawful charges against individuals. For there to be a lawful charge, there must first be jurisdiction. This article will deal with Constitutional issues as well as statutory requirements and appellate court opinions on the subject. I think you will find that if you have been charged with a traffic or misdemeanor offense, maybe even a felony, you have not been lawfully charged with an offense and have voluntarily appeared to answer for non-existent charges.
Before we even get to what the “law” says, we must understand the basic protections afforded by the Constitutions. Let’s begin with the Fourth Amendment to the US Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (This means NO warrants, including bench warrants, traffic warrants, etc.)
Now we move on to Article I, Section 6 of the Illinois Constitution (Bill of Rights):
SECTION 6. SEARCHES, SEIZURES, PRIVACY AND INTERCEPTIONS
The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized. (This is substantially a recitation of the Fourth Amendment, except it specifies an affidavit as opposed to an oath. This may be a fine distinction, but an oath is given orally and affidavit is in writing. The Fourth Amendment provides for both whereas Illinois limits warrants to being supported by a written affidavit.
There are generally 3 ways to charge an offense; by complaint, information, and indictment. This is not to say that you cannot be arrested without them. It has been held that if a criminal offense is committed in the presence of a police officer or a private citizen they may make an arrest. Either a police officer or private citizen may make an arrest with a warrant. Only a police officer can make an arrest based on probable cause. Here is what the courts have said regarding these options in relation to the protections of the Constitutions:
This section of the Constitution has been many times construed by this court, and it has been uniformly held that no person may be arrested and held to answer a charge of crime other than on a sworn complaint before a judge or justice of the peace, or an indictment returned by a grand jury duly sworn and impaneled, or by presentment of not less than two members of such grand jury, or by verified information of the state’s attorney or Attorney General in certain cases.People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513;People v. Clark, 280 Ill. 160, 117 N.E. 432;Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, ss 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. ( People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966),
A Citizen has the power of arrest reflected in the Illinois Compiled Statutes:
(725 ILCS 5/107‑3) (from Ch. 38, par. 107‑3) Sec. 107‑3. Arrest by private person. Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed. (Source: Laws 1963, p. 2836.)
(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9) Sec. 107‑9. Issuance of arrest warrant upon complaint. (e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.
To this point, it is clear that both the US Constitution and Illinois Constitution state, as supported by the courts, that no arrest can be made without a warrant, and for there to be a warrant there must be a sworn complaint; except in cases where a police officer personally witnesses the crime or has probable cause, or when a private person reasonably believes an offense other than an ordinance violation is being committed. Pay attention to “is being committed”. This means the offense must be in progress and not a thing of the past or future. A private person cannot arrest someone because of what they did or are about to do. That is the extent of the power of arrest possessed by the State. Illinois takes this one step further, which is where I believe arrests by so-called “bench warrants” come into play. The statutes say:
(725 ILCS 5/107‑2) (from Ch. 38, par. 107‑2) Sec. 107‑2. (1) Arrest by Peace Officer. A peace officer may arrest a person when: (a) He has a warrant commanding that such person be arrested; or (b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction;
Police do not know the law. They only do what they are told. If a police officer is handed a bench warrant he does not question whether the warrant has been lawfully issued pursuant to the Constitution. If he checks his computer and sees a notice about a bench warrant he does not review the warrant for conformity with the law. He does not review the warrant for the judge’s signature or whether there is a corresponding affidavit. He is operating on “reasonable grounds” that a warrant has been issued because of the bench warrant. This can be dangerous, because without a warrant there is no arrest, regardless of the police officer’s belief. People have a right to be secure in their persons, papers, and possessions and if unlawfully assaulted in this respect have a natural right to defend themselves and their property, even from police. I expound on this premise in this article and will not revisit the specifics here.
Before going further, we must ask this question. If the law provides for arrests, are there any who are exempt from arrests? I know many believe police are exempt from arrests when in the performance of their duties, but are they? Let’s visit the statutes again where we find some guidance.
(725 ILCS 5/107‑7) (from Ch. 38, par. 107‑7) Sec. 107‑7. Persons exempt from arrest. (a) Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at election, and in going to and returning from the same. (b) Senators and representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same. (c) The militia shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and in going to and returning from the same. (d) Judges, attorneys, clerks, sheriffs, and other court officers shall be privileged from arrest while attending court and while going to and returning from court. (Source: Laws 1963, p. 2836.)
I fail to find anywhere in that section an exemption for police officers. It does specifically mention sheriffs, but police officers are municipal or state employees and not officers of the court. The statute even alludes to sheriffs being not exempt if they are not attending court or going to and from court. This means that if a police officer commits a crime in the presence of a private individual they may make an arrest of that police officer. This would include the police officer using excessive force or other crime committed under the pretense of effecting an arrest.
So now we know there can be no arrest without a warrant or unless a crime is committed in the presence of a police officer or other individual, or in cases where police have reasonable suspicion that a crime has been, is being, or will be committed. If there is a warrant, it must be sworn to and in writing.
‘The only other instance where an arrest or seizure is at all justifiable is where an offense is committed in the presence of the officer or person making the arrest, And in such case there must be a sworn complaint or indictment before trial to set the machinery of the law in motion.’ (Emphasis supplied.) 280 Ill. at 166, 117 N.E. at 434.
The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. ( People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966), And even then a sworn complaint or indictment must follow before the court can take jurisdiction.’
Arrest by warrant is unlawful until complaint charging crime has been filed. Housh v. People, 1874, 75 Ill. 487.
By the common law, and according to the holdings in many of the states, a private person may justify an arrest by showing that a felony had been actually committed and that he had reasonable grounds to suspect that the person arrested committed the felony. 2 Am. & Eng. Ency. of Law (2d Ed.) 885; 3 Cyc. 885, and authorities therein cited. By section 4 of division 6 of our Criminal Code (Hurd’s Rev. St. 1903, c. 38, § 342, p. 677), it is provided: ‘An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.’ From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence. So, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute. Enright v. Gibson, 219 Ill. 550, 76 N.E.689
There are, no doubt, cases which hold that private individuals may arrest on probable cause; but there are authorities which hold the contrary rule, and in the conflict of authority we are left free to adopt the rule which seems to be most consonant with reason and the public interest; and to prevent breaches of the peace, and even bloodshed, we think that a private individual should not be justified unless a crime had been committed and the person arrested shall be shown to be the guilty party.’ We think this case a clear announcement of the rule in this state that, before a private citizen can justify an arrest made by him, he must show not only that a crime has in fact been committed, but that the person arrested is guilty of the crime. Enright v. Gibson, 219 Ill. 550, 76 N.E.689
Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec.348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664. Criminal Law211(1); Criminal Law212
The court is saying that even if the complaint itself does not contain information to support probable cause, by the court examining the complainant under oath, it determined that probable cause was sufficient for the issuance of an arrest warrant. This illustrates the importance of the court examining the complainant or witness. It is not the written complaint which is important, but that there is a flesh-and-blood individual before the court swearing under oath and penalty of perjury that there has been a crime committed, and the complaint serves as the written instrument for the record which the court will refer to in prosecuting the crime.
Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142. Criminal Law 211(3)
Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec.165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law211(1)
Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.Criminal Law 211(1)
Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, § 6 (see, now, Const. Art. 1, § 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257. Criminal Law 211(3); Criminal Law394.4(9)
Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809. Criminal Law 211(1)
A complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112.
Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101. Criminal Law 217
This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239. Criminal Law211(1); Criminal Law 212
For there to be a lawful arrest there must first be an arrest warrant supported by a sworn complaint, information, or indictment; or a police officer must have reasonable suspicion that a crime has been committed or he or a private individual must have witnessed the crime personally. For there to be a complaint or information, there must be a supporting affidavit or oath. Even if arrested by a police officer witnessing the offense there must be a sworn complaint or indictment supported by affidavit or oath. Regardless, in ALL CASES, there MUST BE A SWORN COMPLAINT SUPPORTED BY AFFIDAVIT OR OATH. If either of these is missing from a charge the court has NO jurisdiction and the charge cannot stand.
CHARGING AN OFFENSE
We also need to examine the ways an offense can be charged. These are complaint, information, and indictment. Let’s examine the requirements for each.
(725 ILCS 5/Art. 111 heading)
ARTICLE 111. CHARGING AN OFFENSE
(725 ILCS 5/111‑1) (from Ch. 38, par. 111‑1)
Sec. 111‑1. Methods of prosecution.
When authorized by law a prosecution may be commenced by:
(a) A complaint; 
(b) An information; 
(c) An indictment. 
(725 ILCS 5/111‑2) (from Ch. 38, par. 111‑2)
Sec. 111‑2. Commencement of prosecutions.
(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109‑3 and at that hearing probable cause to believe the defendant committed an offense was found, and the provisions of Section 109‑3.1 of this Code have been complied with.
(b) All other prosecutions may be by indictment, information or complaint.
(d) Upon the filing of an information or indictment in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense directed to a peace officer or some other person specifically named commanding him to arrest such person.
(f) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.
(Source: P.A. 90‑590, eff. 1‑1‑99.)
(725 ILCS 5/111‑3) (from Ch. 38, par. 111‑3)
Sec. 111‑3. Form of charge.
(b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another .
A complaint shall be sworn to and signed by the complainant ;
provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense ,
and the complaint need not be sworn to if the officer signing the complaint certifies
that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification 
under Section 1‑109 of the Code of Civil Procedure and perjury under Section 32‑2 of the Criminal Code of 1961; 
and further provided , however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead ,
unless he specifically requests that a verified complaint be filed .
Complaint – 725 ILCS 5/102 9 “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.
Information – 725 ILCS 5/102 12 “Information” means a verified written statement signed by a State’s Attorney, and presented to a court, which charges the commission of an offense.
Indictment – 725 ILCS 5/102 11 “Indictment” means a written statement, presented by the Grand Jury to a court, which charges the commission of an offense.”
There is a little confusion on this as to whether anyone can swear to an information signed by the State’s Attorney. I have seen informations sworn to by the police officer, but does “another” mean “anyone else”? In this sense, “another” means someone else in the State’s Attorney’s office, such as an Assistant State’s Attorney. Looking at footnote  you will see that for a complaint, the lowest form of charge there is, it must be signed and sworn to by the complainant. Why would a complaint not be signed by the complainant and sworn to by “another”? Because the person making the charge is the one subject to the penalties of perjury so they must sign and swear. With the State’s Attorney’s office, they are working under the same oath of office and extensions of the State’s Attorney. Therefore, duly appointed deputies of the State’s Attorney, Assistant State’s Attorneys, can swear as though it were the State’s Attorney himself. For other guidance on this, we look at another State, Florida, and its requirements. http://www.joffelaw.com/state-rules/3-140.html
(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.
As distinguished from an information, the complaint must be signed and sworn to by the complainant. There is no provision for a complaint being signed by the complainant and sworn to by another individual.
Notice that it specifies the “commission of a misdemeanor” and not a felony. It is saying that if the police officer is the complaining witness and directly observes the commission of a misdemeanor, his signature on the complaint is sufficient to charge the defendant with the commission of the offense. However, remember that a complaint must be sworn to. This statement is misleading, as it is referring to misdemeanors which are civil in nature, and not criminal. Read on.
It goes on to say the complaint need not be sworn to if the officer certifies, which is not the same as verification. Certification is a method used in civil proceedings to show notice was served to parties. It is different from verification. “Although statute provided that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, the verification provided by statute was not a substitute for the affidavit required by “date of mailing” rule, providing that service is proved, in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail; statute allowed for verification by certification unless otherwise expressly provided by rule of the Supreme Court. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”
“By its express terms, statute governing verification by certification provides that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, but statute does not indicate that such verification is an acceptable substitute when a statute, other than the Code of Civil Procedure, requires a document to be sworn to or verified under oath. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”
Notice how it refers to the Code of Civil Procedure. In the case cited last, it says that certification is not acceptable when a document is required to sworn to or verified under oath, as with a criminal complaint. Certification and verification are two different things, certification belonging to civil proceedings and verification being a requisite for criminal charges.
Again, it is talking a false certification, which applies to civil matters.
Section 1-109 of the Code of Civil Procedure found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt%2E+I&ActID=2017&ChapterID=56&SeqStart=100000&SeqEnd=1100000
states “(735 ILCS 5/1‑109) (from Ch. 110, par. 1‑109)
Sec. 1‑109. Verification by certification. Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.
Whenever any such pleading, affidavit or other document is so certified, the several matters stated shall be stated positively or upon information and belief only, according to the fact. The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1‑109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.
Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.
Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.
(Source: P.A. 83‑916.)”
All that Section 1-109 does is lay down the use of certification in civil matters. It is the rule by which certification may be used, and only in accordance with Civil Procedure. Section 32-2 of the Criminal Code goes on to define what perjury is and the penalties for committing. It is found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+32&ActID=1876&ChapterID=53&SeqStart=74000000&SeqEnd=77100000
and states “(720 ILCS 5/32‑2) (from Ch. 38, par. 32‑2)
Sec. 32‑2. Perjury.
(a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.
(b) Proof of Falsity.
An indictment or information for perjury alleging that the offender, under oath, has made contradictory statements, material to the issue or point in question, in the same or in different proceedings, where such oath or affirmation is required, need not specify which statement is false. At the trial, the prosecution need not establish which statement is false.
(c) Admission of Falsity.
Where the contradictory statements are made in the same continuous trial, an admission by the offender in that same continuous trial of the falsity of a contradictory statement shall bar prosecution therefor under any provisions of this Code.
(d) A person shall be exempt from prosecution under subsection (a) of this Section if he is a peace officer who uses a false or fictitious name in the enforcement of the criminal laws, and such use is approved in writing as provided in Section 10‑1 of “The Liquor Control Act of 1934”, as amended, Section 5 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State”, approved July 17, 1941, as amended, or Section 2605‑200 of the Department of State Police Law (20 ILCS 2605/2605‑200). However, this exemption shall not apply to testimony in judicial proceedings where the identity of the peace officer is material to the issue, and he is ordered by the court to disclose his identity.
Perjury is a Class 3 felony.
(Source: P.A. 91‑239, eff. 1‑1‑00.)”
This statement deals with traffic and conservation offenses, which are not crimes, but rather administrative or civil offenses. The form of the traffic or conservation offense is determined by the Illinois Supreme Court and the Conference of Chief Circuit Judges. For the purposes of this discussion, the applicability of this statement pertains to notice and charging of an offense. The Illinois Supreme Court website where this is discussed is here http://www.state.il.us/court/SupremeCourt/Rules/Art_V/ArtV.htm#Rule%20552
Under “Notice to Appear” it states “(e) Notice to Appear. In all cases in which a defendant is issued a Notice to Appear under section 107–12 of the Code of Criminal Procedure of 1963, as amended (725 ILCS 5/107–12), and fails to appear on the date set for appearance, or any date to which the case may be continued, the court may enter an ex parte judgment of conviction against an accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed equal to the cash bail required by this article. Payment received for fines, penalties, and costs assessed following the entry of an ex parte judgment shall be disbursed by the clerk pursuant to Rule 529. The clerk of the court shall notify the Secretary of State of the conviction pursuant to Rule 552 and of the unsatisfied judgment pursuant to section 6–306.6(a) of the Illinois Vehicle Code, as amended (625 ILCS 5/6–306.6(a)). In lieu of the foregoing procedure, a summons or warrant of arrest may be issued.
(December 5, 2003)
Supreme Court Rule 556 (“Procedure if Defendant Fails to Appear”) delineates several procedures if the defendant fails to appear after depositing a driver’s license in lieu of bond, executes a written promise to comply, posts bond or issued a notice to appear.
The rule provided that the court may “enter an ex parte judgment of conviction against any accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed the cash bail required by this article.” Rule 556 does not detail the specific costs and penalties, or their amounts, in the entry of ex parte judgments. The clerk is then left with deciding which costs, fees and additional penalties (and their amounts) should be applied. This is currently being determined on a county by county basis.”
Notice how this rule, pertaining to traffic and conservation offenses, deal with Civil Procedure. Nothing in this rule addresses criminal matters, and deals with offenses punishable by “fine only”, which is considered a “petty offense”. Also, notice the last few words of this section state that such a complaint constitutes a complaint to which the defendant may plead. This means the defendant, if willing to voluntarily plead to this type of complaint, waives all his rights to having a sworn complaint filed. Read carefully the next excerpt from an Illinois Appellate case where this very issue is addressed by the court. I am quoting from People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533
“The charge against the defendant was initiated by an unverified ‘Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‘Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment should be reversed in thathe had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‘drag racing.’
No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.
It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors, does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152
‘The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).
‘In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.
‘The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’
The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection. People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.”
That is pretty conclusive. There need not be a verified complaint for the court to have jurisdiction or to commence a prosecution because you may waive all your rights to a verified complaint and therefore submit to the jurisdiction. However, you have a right to demand a verified complaint, and if so, the court must have one before it can sustain a prosecution. Notice the statement in bold where the court says the traffic ticket is a procedure for getting persons into court without the necessity and inconvenience of an immediate arrest. They use the defective traffic ticket to get you into court and submit to jurisdiction without the necessity and inconvenience of there being a sworn criminal complaint.
This statement summarized the discussion on complaints, particularly traffic and conservation offenses, where you may plead to the defective complaint unless you demand that a verified complaint be filed. This means that the court will have to require the complainant to swear to a complaint and have an arrest warrant issued, something they are not likely to do. This would require the police officer who issued the ticket to come before a judge with a written complaint that has been sworn to before someone authorized to administer oaths. This is what the court referred to as the “necessity and inconvenience”.
Notice how all but indictment requires a verified written statement. That is because the Grand Jury is sworn in when empaneled and all of their indictments derive from that oath, therefore, they do not need to issue a verified statement since they are already sworn in. However, both a complaint and an information must be supported by written sworn statements. Let’s look at what “verification” means.
“Verification”, has been held by Courts of this State to mean a written statement made under oath or affirmation before any officer empowered to administer oaths and which, for any willfully false or misleading statement made thereof, subjects the affiant to pains and penalty of perjury. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.
Now, what is this “officer empowered to administer oaths”? Fortunately, the answer is readily available for that as well.
The power to administer oaths derives from the Legislature and codified at 5 ILCS 5/255 et. seq. (Oaths and Affirmations Act)
While we’re digging, let’s look at who the Oaths and Affirmations Act embraces as an “officer empowered to administer oaths”.
(5 ILCS 255/2) (from Ch. 101, par. 2) Sec. 2. Affidavits and depositions. All courts, and judges, and the clerks thereof, the county clerk, deputy county clerk, the Secretary of State, notaries public, and persons certified under the Illinois Certified Shorthand Reporters Act of 1984 may, in their respective districts, circuits, counties or jurisdictions, administer all oaths of office and all other oaths authorized or required of any officer or other person, and take affidavits and depositions concerning any matter or thing, process or proceeding commenced or to be commenced, or pending in any court or before them, or on any occasion wherein any affidavit or deposition is authorized or required by law to be taken.
Before we go on, the statute goes on to even define a judge:
(5 ILCS 255/7) Sec. 7. Definition of judge. For the purposes of this Act, “judge” means (i) an incumbent judge of the Illinois Supreme, Appellate, or Circuit Court, whether elected or appointed, (ii) a retired judge of the Illinois Supreme, Appellate, or Circuit Court, and (iii) an incumbent or retired associate judge of the Illinois Circuit Court. The term “judge” does not include a judge who has been convicted of a felony or who has been removed from office by the Illinois Courts Commission. (Source: P.A. 95‑498, eff. 1‑1‑08.)
This does not include municipal judges, administrative law judges, or circuit court judges.
So, what is the significance of “verification”? Let’s look:
(5 ILCS 255/5) (from Ch. 101, par. 5) Sec. 5. All oaths, affirmations, affidavits and depositions, administered or taken as provided in this act, shall subject any person who shall so swear or affirm willfully and falsely, in matter material to any issue or point in question, to the like pains and penalties as are inflicted by law on persons convicted of willful and corrupt perjury. (Source: R.S. 1874, p. 725.)
Verification is required because if the person so swearing does so falsely they will be held to answer for willful and corrupt perjury. I believe this is why State’s Attorneys do not issue proper informations in many cases because the charges are fraudulent to begin with. I believe most of them know the law either does not apply to most people in most cases, or they know they do not have knowledge of facts sufficient to charge an offense and therefore cannot swear to them. They rely upon people’s ignorance of the law and the intimidation of them being assailed by a system that relies upon imprisonment and threats for its survival.
Now I will examine the various types of ways an offense is charged and the legal requirements and defects as they are used today.
What is a charge?
(725 ILCS 5/102‑8) (from Ch. 38, par. 102‑8) Sec. 102‑8. “Charge”. “Charge” means a written statement presented to a court accusing a person of the commission of an offense and includes complaint, information and indictment. (Source: Laws 1963, p. 2836.)
So a charge is a written statement in the form of a complaint, information, or indictment which charges an offense. Let’s examine what an “offense” is.
Well, that seems clear enough, but what do they mean by “penal statute”? I do not find a definition for penal statute. There are various types of offenses, generally speaking. These include ordinance violation, petty offense, misdemeanor, and felony. What I do find is a definition for “penal institution”, which may shed light on what a penal statute is, since violators of penal statutes would be sentenced to a penal institution.
(720 ILCS 5/2‑14) (from Ch. 38, par. 2‑14) Sec. 2‑14. “Penal institution”. “Penal institution” means a penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses. (Source: Laws 1961, p. 1983.)
So it would appear that offenses only apply to those which include the possibility of someone being sentenced to serve time in some sort of jail or other form of confinement. For a good layman’s breakdown of the different types and their corresponding punishment I found the Illinois State Bar Association to be very helpful:
In Illinois, most traffic charges are categorized as either “petty” or “misdemeanor” offenses.
Petty offenses are those punishable by fine only. They include stop sign and red light violations, most speeding tickets, lane change violations and driving without insurance. Fines range from $1.00 to $1,000. Fines are either payable on the day assessed or on such later date as the court may direct.
Misdemeanors are divided into three (3) classes, referred to as Class A, B and C.
Class A is the most serious. It includes violations such as driving under the influence, speeding 40 or more miles over the posted speed limit, driving while license suspended or revoked, reckless driving or leaving the scene of an accident. The possible penalties for Class A misdemeanors are up to 364 days in jail and/or fines up to $2,500. Day for day good time credit applies to most misdemeanor jail sentences.
Class B misdemeanors, such as selling or providing a fraudulent driver’s license or permit, carry a possible penalty of up to six (6) months in jail and/or fines up to $1500.
Class C misdemeanors, such as drag racing, are punishable by jail up to thirty (30) days and/or fines up to $1,000.
Examining the above, it appears that those items listed under “petty offense” and which have a punishment by fine only are not really offenses. A penal institution is for receiving those who are subject to confinement for violating a penal statute and petty offenses are not included in that category. While on this subject, we need to also look at ordinance violations. Those are particularly interesting because they have been deemed to be “quasi-criminal” in nature.
While regarding ordinance-violation proceedings as civil in form, this Court has traditionally characterized them as quasi-criminal. City of Danville vs. Hartshorn, 53 Ill.2d 399, 292 N.E.2d 382 (1973)
Civil cases are of two kinds, those purely civil and those quasi criminal. A quasi criminal case is not a criminal case but is a civil case, somewhat resembling in its nature a criminal case. That a quasi criminal offense is not a criminal offense as defined by the criminal code is, under the authorities, clear. Wiggins v. City, 78 Ill. 375, Tully v. Northfield, 6 Ill.App. 358
Quasi-Criminal Nature (See also Quasi and see the title Penalties) – The constitution of Illinois conferred upon a certain court jurisdiction in cases of a quasi-criminal nature. It was held that the phrase “quasi-criminal nature” was intended to embrace all offenses not crimes or misdemeanors, but which are in the nature of crimes, and which are punished, not by indictment, but by forfeitures and penalties. It includes all qui tam actions, prosecutions for bastardy, informations in the nature of quo warranto, and suits for the violations of ordinances. Wiggins v. Chicago, 68 Ill. 372
Quasi-Criminal Cases – The violation of an ordinance is embraced in the phrase “of a quasi-criminal nature.” Wiggins v. Chicago, 68 Ill. 372
I do not mean to digress from the theme of this piece, but we are determining how the State charges offenses and in order to do that we must understand what offenses are. So, if the criminal code, criminal procedure…etc. apply only to “offenses” which are a violation of a “penal statute”. Therefore, to wrap up this discussion on ordinances we find:
Police can only arrest you with a warrant, if they witness a crime, or have reasonable grounds to believe an offense is being, or has been, committed.
725 ILCS 5/107-2. Arrest by Peace Officer Arrest by Peace Officer. (1) A peace officer may arrest a person when:(c) He has reasonable grounds to believe that the person is committing or has committed an offense.
Offenses are violations of the State’s penal statutes.
725 ILCS 5/102-15. “Offense” “Offense.” “Offense” means a violation of any penal statute of this State.
Municipal ordinance violations are not offenses.
Municipal ordinance violations do not fall within the definition of an “offense” under either the Criminal Code or the Code of Criminal Procedure. City of Champaign v. Torres, 214 Ill.2d 234, 824 N.E.2d 624 (2005)
Therefore, you cannot be arrested for violating an ordinance without a warrant. Period. If you may only be arrested without a warrant for an offense, and ordinances are not offenses, you cannot be arrested for violating an ordinance without a warrant, even if in the presence of a police officer. However, there are procedures in place for prosecuting ordinance violations, and those are outlined next. There must be a summons or a warrant supported by affidavit, which means it must be sworn to by the person alleging the violation. If you are served notice by mail it must be done by certified mail, return receipt requested. The police may serve summons for an ordinance violation, but again, there must be a sworn affidavit before the summons can be issued.
65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.
65 ILCS 5/1-2-9.1. Service by certified mail§ 1-2-9.1. Service by certified mail. In all actions for violation of any municipal ordinance where the fine would not be in excess of $750 and no jail term could be imposed, service of summons may be made by the city clerk by certified mail, return receipt requested, whether service is to be within or without the State.People ex rel Devine v. $30,700 U.S. Currency, 199 Ill. 2d 142, 766 N. E. 2d 1084 (2002)
65 ILCS 5/1-2-11. Sheriff; service of process; arrest; housing authority police(b) Police officers may serve summons for violations of ordinances occurring within their municipalities.725 ILCS 5/107-11.
When summons may be issued(c) The summons may be served in the same manner as the summons in a civil action, except that police officers may serve summons for violations of ordinances occurring within their municipalities.
65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.
To close the book on ordinances, they are not complaints, informations, or indictments. For an illustrative case, read City of Danville v. Hartshorn.
While I am making fine legal distinctions, we need to examine some things that are not complaints, informations, or indictments. For instance, many people believe that traffic offenses are criminal offenses. Most of the preceding definitions come from the Illinois Criminal Code of 1963 and the Code of Criminal Procedure. However, traffic or vehicle offenses are not criminal nature, but civil or administrative infractions. The jurisdictions of each are different. Of course, we all believe we are in Illinois and Illinois is considered a State. However, the law goes on to define what a State is for the purposes of different parts of the statute. We are primarily dealing with criminal law in this article, but the courts often intermingle traffic offenses which make people believe they face criminal penalties. Depending on where you are in relation to “this State”, which may or may not mean Illinois, the jurisdiction or right of the State to even bring charges against someone, may differ. First we’ll look at the definition of “State” as it is used in the criminal code:
Quoting the Criminal Code of 1961 – (720 ILCS 5/2‑21) (from Ch. 38, par. 2‑21) Sec. 2‑21. “State”. “State” or “this State” means the State of Illinois, and all land and water in respect to which the State of Illinois has either exclusive or concurrent jurisdiction, and the air space above such land and water. “Other state” means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico. (Source: Laws 1961, p. 1983.)
Quoting the Illinois Motor Vehicle Code – (625 ILCS 5/1‑195) (from Ch. 95 1/2, par. 1‑195) Sec. 1‑195. State. A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada. (Source: P.A. 76‑1586.)
Look closely at the two definitions. Do not believe that they are interchangeable. The legislature defined them this way specifically for the statute to which they apply. When you deal with criminal law you are dealing with the actions of people. Crime is committed by individuals against individuals or their property. Corporations are also considered “persons” and can be held criminally responsible for certain act, but crimes are committed by people against people. The State of Illinois is formed by the people who are represented by the legislature. Crimes against people are reflected in the State of Illinois Criminal Code. However, vehicular or traffic infractions cannot apply to the people generally as criminal offenses. The word State does not necessarily mean Illinois. There are commercial offenses which include commerce intrastate and interstate. The US Constitution gives Congress the power to regulate commerce. Therefore, I posit that traffic offenses apply to commercial activities under the regulations promulgated by Congress regarding interstate and intrastate commerce. That authority is reflected in the Vehicle Code as penalties imposed by the State, but not the State of Illinois. State, in that sense, is a commercial jurisdiction that co-exists with the common law jurisdiction of criminal statutes. The definition of State, as used in the Criminal Code actually excludes the definition of State used in the Vehicle Code. Vehicle Code offenses actually occur in the State known as the “other State” defined in the Criminal Code.
Summary of ordinance violations, petty offenses, and traffic violations – An arrest cannot be made for petty offenses or traffic violations. Arrests can be made for ordinance violations only if there is a sworn affidavit filed. Traffic tickets are not complaints, informations, or indictments since there is not a sworn complaint presented to a court and corresponding arrest warrant. I will touch on this in more detail as I get into the analysis of the various forms used to charge or allege offenses.
What it is: (725 ILCS 5/102‑9) (from Ch. 38, par. 102‑9) Sec. 102‑9. “Complaint”. “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense. (Source: Laws 1963, p. 2836.)
Next, we’ll look at what the Illinois statutes say about arrest by complaint. I’ll emphasize particular words and phrases in the statute and then post copies of a verified complaint and arrest warrant.
(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9) Sec. 107‑9.
Issuance of arrest warrant upon complaint. (a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.
(b) The complaint shall be in writing and shall:
(1) State the name of the accused if known, and if not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;
(2) State the offense with which the accused is charged;
(3) State the time and place of the offense as definitely as can be done by the complainant; and
(4) Be subscribed and sworn to by the complainant.
(c) A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any, that the person against whom the complaint was made has committed an offense.
(d) The warrant of arrest shall:
(1) Be in writing;
(2) Specify the name, sex and birth date of the person to be arrested or if his name, sex or birth date is unknown, shall designate such person by any name or description by which he can be identified with reasonable certainty;
(3) Set forth the nature of the offense;
(4) State the date when issued and the municipality or county where issued;
(5) Be signed by the judge of the court with the title of his office;
(6) Command that the person against whom the complaint was made be arrested and brought before the court issuing the warrant or if he is absent or unable to act before the nearest or most accessible court in the same county;
(7) Specify the amount of bail; and
(8) Specify any geographical limitation placed on the execution of the warrant, but such limitation shall not be expressed in mileage.
(e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.
(f) The warrant may be issued electronically or electromagnetically by use of a facsimile transmission machine and any such warrant shall have the same validity as a written warrant. (Source: P.A. 86‑298; 87‑523.)
First of all, notice the word “shall”. Shall, is a direction to the court. It is a command. It is not discretionary. The judge or whoever the command is being directed towards must do take that action as a requirement for the statute. A complaint is presented to a court charging an offense. That means something other than a petty offense or ordinance violation, punishable by fine only. Here is something interesting. It also states, “shall examine upon oath or affirmation the complainant or any witnesses.” This means the court must examine the complainant or any witness with them being either orally sworn in. The complaint itself must be in writing and the complainant must also be examined by the judge under oath or affirmation before issuing an arrest warrant.
Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins,App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law 217
What is being said here is that probable cause does not rest solely with the complaint. It is required that the judge examine the complainant or witness, and upon that testimony he may find probable cause. This is because not everyone may possess the faculties required to pen a proper complaint and what may be lacking in the complaint is supplemented by the testimony of the complainant.
In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387N.E.2d 995. Criminal Law217
Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph.People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law217
What is being said here is what illustrates the necessity for the judge to examine the complainant or witness. It is important to keep this in mind when making your complaint because if the judge does not examine the complainant or witness it will prove fatal to your case. I can envision a situation where a judge will sabotage a case by failing to examine the complainant or witness, as in what took place in the above case. I would recommend being adamant about the judge examining you or the witness to ensure no defect in the warrant ensues which would result in a dismissal.
Let’s review an alleged “verified complaint” and ensuing arrest warrant. This complaint is made out by the State’s Attorney and verified or sworn to by the State Police officer. The State’s Attorney does not sign the complaint, but rather stamps it. The warrant is likewise unlawful. The specified “offense” is “failure to appear or pay charge” when the complaint is for unlicensed driving. The warrant is not supported by the complaint. The defendant in this case was ticketed on July 29, 2010 and the verified complaint was not filed August 25, 2010 upon his filing a demand for a verified complaint. Until a complaint is filed and the complainant examined by a judge there can be no warrant and no jurisdiction. The warrant was not issued until September 14, 2010, and even then it was issued for a non-existent offense.
Dealing with the issue of the “signing” of the information or complaint, the statutes deal with this very issue:
(5 ILCS 70/1.15) (from Ch. 1, par. 1016) Sec. 1.15. “Written” and “in writing” may include printing, electronic, and any other mode of representing words and letters; but when the written signature of any person is required by law on any official or public writing or bond, required by law, it shall be (1) the proper handwriting of such person or, in case he is unable to write, his proper mark or (2) an electronic signature as defined in the Electronic Commerce Security Act, except as otherwise provided by law. (Source: P.A. 90‑759, eff. 7‑1‑99.)
Of course, it references the Electronic Commerce Security Act which, in my opinion, does not apply to signatures on charging documents. That act can be read here and is evidently intended to deal with matters in commerce or commercial considerations, hence the name.
So what we have here is a defective complaint and defective warrant. The complaint has not been verified even though it is sworn to because of two things. It is signed by the State’s Attorney. A complaint is used by a complainant to charge an offense, not the State’s Attorney. The State’s Attorney uses an information. If the police officer signed the complaint then it would be proper, but he didn’t. Second, the affidavit below was sworn to by the officer, not the State’s Attorney. Only the person making the complaint can sign the affidavit. Since they are the one making the charge they also must be the one swearing to it. If you look at the signature if the State’s Attorney, you will also see it is a rubber stamp. There is no telling who actually signed, or stamped, this complaint. I also posit that the judge never examined the complainant as to the facts alleged in order to issue the warrant. The warrant which was issued is for a non-offense, failure to appear. The complaint is for unlicensed driving. How does a judge issue a warrant for an offense that does not appear on the complaint? This is an outright fraud and the court never acquired jurisdiction in this case. This, however, is not uncommon. It happens all the time to many people and they never look at the charging documents for defects like this because they do not know. They appear in court and enter pleas to charges that are not properly filed, thereby submitting to jurisdiction. They are undone by their own ignorance.
Now we’re going to look at an information. The difference between an information and a complaint is that a complaint is presented by someone other than the State, such as you or I. I disagree that police can sign as a complainant since they work for the State. Police should go to the State’s Attorney with the charges and the State’s Attorney then file an information. If a police officer would file a complaint then he must do so in writing and swear to it, as well as present it to a court to then be examined by the judge before issuing a warrant. An information is presented by a State’s Attorney, but it must also be sworn to by him and presented to a court before a warrant can be issued. Remember, without a warrant there is no jurisdiction. There is a distinction between a complaint and an information. What I will show you next is an information that looks remarkably like the previous complaint, only it is titled Information. Same rules apply to both, only the Information is presented by the State’s Attorney. Take a look and see if there is any difference aside from the caption.
I will be concluding this piece with an analysis of traffic tickets and Uniform Traffic Citation and Complaint. This has been discussed in-part above, but examples of requirements and common defects will be included.