People v. Schaefer

580 N.E.2d 151, 219 Ill. App. 3d 654, 162 Ill. Dec. 525, 1991 WL 101698, 1991 Ill. App. LEXIS 1013
CourtAppellate Court of Illinois
DecidedJune 14, 1991
DocketNo. 1—90—0077
StatusPublished
Cited by3 cases

This text of 580 N.E.2d 151 (People v. Schaefer) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Schaefer, 580 N.E.2d 151, 219 Ill. App. 3d 654, 162 Ill. Dec. 525, 1991 WL 101698, 1991 Ill. App. LEXIS 1013 (Ill. Ct. App. 1991).

Opinion

JUSTICE LaPORTA

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County which rescinded the summary suspension of the driving privileges of defendant, Harold Schaefer. The trial court’s ruling was based upon its finding that defendant had not been afforded a hearing on his petition for rescission of the summary suspension within 30 days as required by statute (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b)). On appeal, the State contends that the trial court erred in finding that the mere filing of defendant’s petition for rescission of the summary suspension was a sufficient request for a rescission hearing.

Defendant was arrested for driving while under the influence of intoxicating liquor (DUI) on October 3, 1989. He submitted to a breathalyzer test and registered a blood-alcohol concentration of .20. The arresting officer served defendant with immediate notice of summary suspension of his driving privileges. Ill. Rev. Stat. 1989, ch. 95V2, pars. 6-208.1,11-501.1.

On October 5, 1989, defendant’s attorney filed a petition to rescind the statutory summary suspension of defendant’s driving privileges. The record does not, however, include a certificate of service establishing that this petition had been served on the State in accordance with Illinois Supreme Court Rules 11 and 12. 134 Ill. 2d Rules 11, 12.

On October 20, 1989, defense counsel filed several motions in the civil and criminal proceedings against him, including a motion for civil discovery order for summary suspension hearing, a motion for discovery in the criminal prosecution, a motion to dismiss the statutory summary suspension proceeding, a motion to suppress evidence and to quash arrest, and a motion in limine in the criminal prosecution. Each of these motions was accompanied by a certificate of service attesting to the fact that a copy of the motion had been served upon opposing counsel. On that same date, defense counsel also filed notices of motion which indicated that each of these motions, in addition to the petition to rescind, would be called for hearing at 9 a.m. on October 31, 1989.

On October 31, 1989, the parties appeared before the trial court, and the trial judge recited for the record each of the motions filed by-defendant and pending before the court. The court noted that defendant had filed a motion to dismiss, a motion for civil discovery order and summary suspension hearing, in addition to a motion in limine, a motion for discovery, and a motion to suppress filed in the criminal prosecution. The court did not, however, mention a petition to rescind. The prosecutor inquired whether a petition to rescind was before the court. The trial judge responded that she did not see a petition to rescind in the court file, but stated that the file included the motion to dismiss which addressed itself to the civil remedies sought in the statutory summary suspension. Defense counsel inquired whether the prosecutor desired an opportunity to file a written response to defendant’s motion to dismiss. The prosecutor indicated that she wanted to prepare a response and stated that the motion to dismiss was based upon legal arguments which did not require that the arresting officer testify. The court allowed the prosecutor time to file a written response to defendant’s motion to dismiss, and the civil matter was continued to November 16,1989.

When the continuance was entered, the prosecutor specifically stated she wanted it clear for the record that the officer was to be excused from the courtroom and that there was no petition to rescind on file at that time. Defense counsel made no comments whatsoever and did not attempt to correct the record by indicating that a petition for rescission had been filed on October 5, 1989. The court then granted defendant’s motion for civil discovery and repeated that the cause was continued until November 16, 1989. Although defense counsel had also noticed up five other motions for 9 a.m. on October 31, 1989, he never attempted to argue any of these motions, and he did not request that the court enter rulings on them.

The parties next appeared before the court on November 14, 1989, pursuant to defense counsel’s motion to advance the case for argument because defendant was to be out of town on the previously scheduled date of November 16, 1989. Although defendant’s notice of motion indicated that he intended to advance the summary suspension hearing from November 16 to November 14, when the parties appeared before the court, defense counsel did not present his petition to rescind to the court and never requested a hearing or a ruling thereon.

Prior to any argument, the prosecutor stated that there still was no petition to rescind on file, and the trial court agreed. Defense counsel then stated that the State’s motion to strike “takes precedence.” After argument by both parties on the State’s motion to strike, the trial court ordered that defendant’s motion to dismiss be stricken.

The prosecutor again noted on the record that there was no petition to rescind on file. The court agreed and inquired of defense counsel whether a petition to rescind would be filed in the future. Defense counsel stated merely, “I’m not responding at all to any questions; you have heard our motion.” The prosecutor stated that the officers who would be called to testify had been scheduled to appear on November 16, 1989. Because the defendant was to be out of town on that date, the cause was continued to December 4, 1989, and defense counsel agreed that his client would be present at that time.

On December 4, 1989, the prosecutor and defendant appeared, but defense counsel failed to appear. The prosecutor again noted on the record that no petition to rescind had been filed, and the trial court continued the cause to January 3, 1990.

The parties next appeared before a different trial judge on December 11, 1989, pursuant to defendant’s motion to dismiss based upon the fact that defendant was not afforded a hearing on his petition for rescission within 30 days as required by statute. The State opposed the motion to dismiss, noting that the petition to rescind that appeared in the court file was a photocopy rather than an original and did not bear an original file stamp. The prosecutor also stated that defendant did not demand a hearing on October 31, 1989, the first time the case was before the court. Finally, the prosecutor argued that each time the case was called it had been noted on the record that no petition for rescission had been filed. Defense counsel responded that “it [was] not [his] duty as a lawyer to either assist [his] opponent in their case or assist the court in prosecuting [his] client.”

Although the trial judge stated that he was bothered by the conduct of defendant’s attorney and did not believe that such conduct was proper practice, the court found that the petition to rescind the summary suspension had been filed on October 5, 1989. Accordingly, defendant’s motion to dismiss was sustained.

The State has appealed, contending that the trial court erred in rescinding the summary suspension of defendant’s driving privileges because defendant was not afforded a hearing on his petition to rescind within 30 days.

Section 2 — 118.1(b) of the Illinois Vehicle Code provides as follows:

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Related

People v. Schaefer
609 N.E.2d 329 (Illinois Supreme Court, 1993)
People v. Mills
599 N.E.2d 1362 (Appellate Court of Illinois, 1992)

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Bluebook (online)
580 N.E.2d 151, 219 Ill. App. 3d 654, 162 Ill. Dec. 525, 1991 WL 101698, 1991 Ill. App. LEXIS 1013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-schaefer-illappct-1991.