People v. Holmes

644 N.E.2d 1, 268 Ill. App. 3d 802, 205 Ill. Dec. 785, 1994 Ill. App. LEXIS 1160
Appellate Court of Illinois·Decided August 16, 1994·No. 3-93-0799·Published·Cited by 16 cases

Opinions

PRESIDING JUSTICE SLATER

delivered the opinion of the court:

Petitioner, David Holmes, appeals from an order of the circuit court denying his request for a hearing on his petition to rescind the statutory summary suspension of his driver’s license. On appeal, petitioner contends that the trial court erred in determining that his petition to rescind was untimely. We reverse and remand.

On April 1, 1989, petitioner was arrested and charged with driving under the influence of alcohol (DUI) in violation of section 11—501 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501). Petitioner submitted to chemical testing which indicated a blood-alcohol concentration of 0.12. On May 5, 1989, the office of the Secretary of State notified petitioner that his driver’s license would be summarily suspended pursuant to section 11—501.1 of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1). Petitioner’s license was suspended from June 10 through September 10, 1989. In December of 1989, petitioner paid the statutory restoration fee and his license was reinstated. He was subsequently acquitted on the underlying DUI charge.

On June 30, 1993, petitioner filed a petition to rescind the statutory summary suspension pursuant to section 2—118.1 of the Code. (625 ILCS 5/2—118.1 (West 1992).) At a hearing held on July 23, 1993, the State argued that petitioner was not entitled to a rescission hearing because his request was untimely. The trial judge asked for written briefs and the parties complied. On September 3, 1993, the trial court heard oral arguments and took the case under advisement. On September 9, 1993, by docket entry order, the trial court denied petitioner’s request for a rescission hearing. Petitioner filed this timely appeal.

The issue presented in this case is whether a petitioner is entitled to a hearing on the merits of his petition to rescind the statutory summary suspension of his driver’s license when that petition was filed more than four years after petitioner received notice of the suspension and 3½ years after the suspension was completed and petitioner’s license was reinstated. In other words, is there a time limit within which one must file a petition to rescind under section 2—118.1?

The statutory scheme providing for summary suspensions and hearings on petitions to rescind such suspensions is set out in sections 11—501.1 and 2—118.1 of the Code. Section 11—501.1 provides in relevant part:

"(d) If the [motorist arrested for DUI] refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more, *** the law enforcement officer shall immediately submit a sworn report to the circuit court of venue and the Secretary of State, certifying that the test or tests was or were requested *** and the person refused to submit to a test, or tests, or submitted to testing which disclosed an alcohol concentration of 0.10 or more.
(e) Upon receipt of the sworn report of a law enforcement officer submitted under paragraph (d), the Secretary of State shall enter the statutory summary suspension for the periods specified in Section 6 — 208.1, and effective as provided in paragraph (g).
* * *
(g) The statutory summary suspension referred to in this Section shall take effect on the 46th day following the date the notice of the statutory summary suspension was given to the person.
(h) The following procedure shall apply whenever a person is arrested for any offense as defined in Section 11—501 or a similar provision of a local ordinance:
Upon receipt of the sworn report from the law enforcement officer, the Secretary of State shall confirm the statutory summary suspension by mailing a notice of the effective date of such suspension to the person and the court of venue.” (625 ILCS 5/11—501.1 (West 1992).)

Section 2—118.1 provides in relevant part:

"(b) Upon the notice of statutory summary suspension served trader Section 11—501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11—501, *** the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension. Such hearings shall proceed in the court in the same manner as in other civil proceedings.
* * *
Upon the conclusion of the judicial hearing, the circuit court shall sustain or rescind the statutory summary suspension and immediately notify the Secretary of State. Reports received by the Secretary of State under this Section shall be privileged information and for use only by the courts, police officers and Secretary of State.” 625 ILCS 5/2—118.1 (West 1992).

The statutory scheme provides only two specific time limitations. One is that the suspension automatically goes into effect 45 days after notice is given to the motorist. The other is that the motorist is entitled to a hearing on the petition to rescind within 30 days of the date of the filing of the petition or on the first appearance date on the uniform traffic ticket issued pursuant to the violation of section 11—501. While the 45-day delay between notice and the beginning of the suspension is intended to allow a motorist an opportunity to secure a hearing prior to the suspension, our supreme court has held that a presuspension hearing is not required under the statute (People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68) and that the timing of the hearing depends largely upon when a motorist files his petition to rescind (People v. Esposito (1988), 121 Ill. 2d 491, 521 N.E.2d 884).

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People v. Holmes, 644 N.E.2d 1, 268 Ill. App. 3d 802, 205 Ill. Dec. 785, 1994 Ill. App. LEXIS 1160 (Ill. Ct. App. 1994).

644 N.E.2d 1 (People v. Holmes) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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