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04/27/89 the People of the State of v. Thomas M. Grange

April 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

THOMAS M. GRANGE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

537 N.E.2d 1153, 181 Ill. App. 3d 981, 130 Ill. Dec. 824 1989.IL.617

Appeal from the Circuit Court of Du Page County; the Hon. Maryellen T. Provenzale, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. DUNN and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

The State appeals pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301) from a final judgment of the circuit court of Du Page County granting defendant's, Thomas M. Grange's, petition to rescind the statutory summary suspension of defendant's license. The final judgment rescinding the summary suspension was entered March 7, 1988. No post-trial motion was filed. Notice of appeal was timely filed on April 5, 1988, within 30 days of the court's entry of the final judgment. (107 Ill. 2d R. 303(a)(1).) Defendant has not filed a brief with this court. We proceed to address the merits of the State's appeal. Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 472 N.E.2d 1228.

On January 28, 1988, defendant was arrested and charged by a verified complaint with two counts of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2 , pars. 11-501(a)(1), (a)(2)). A blood-alcohol test was requested by the arresting officer pursuant to section 11-501.1(a) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(a)). Defendant submitted to the test, which revealed a blood-alcohol content of 0.22. On January 28, 1988, defendant was given immediate notice by the arresting officer of the statutory summary suspension of his driving privileges. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(f).) Confirmation of statutory summary suspension of driving privileges was sent to defendant by the Secretary of State confirming that defendant's suspension would begin as of March 14, 1988. Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(i).

On February 3, 1988, defendant filed a petition for a summary suspension hearing (rescission hearing) with the circuit court clerk. The petition was filed pursuant to section 2-118.1 of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1) and sought a rescission of the suspension on all four issues permitted at such a hearing. (See Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).) The petition requested a hearing date of March 4, 1988. The petition also stated defendant's belief that the State would be ready for such a hearing on the arraignment date of March 4, 1988. However, the actual arraignment date appearing on the complaint was March 7, 1988.

On March 7, 1988, defendant filed a motion to dismiss the statutory summary suspension based on a failure to hold a rescission hearing on or before March 4, 1988, within 30 days of defendant's February 3, 1988, request for a hearing, as required under section 2-118.1 of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1). The motion was heard on March 7, 1988. The State argued that section 2-118.1 alternatively authorized the hearing to be held on the first appearance date, which was March 7, 1988, and, therefore, defendant's motion to dismiss should be denied and a full hearing under section 2-118.1 be held. Relying on In re Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614, the trial court granted defendant's motion to dismiss the statutory summary suspension ruling that failure to hold a hearing within 30 days of defendant's request mandated rescission of defendant's statutory summary suspension.

On appeal, the State argues that section 2-118.1(b) of the Code does not mandate that a hearing be conducted within 30 days of defendant's request but that the Judge has limited discretion to conduct the hearing either (1) within 30 days of defendant's request to the court, or (2) on the first appearance date appearing on the uniform traffic ticket. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b); People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68.) Thus, the State argues, the trial court erred when it rescinded defendant's summary suspension for failure to hold a hearing within 30 days when the State was ready to proceed on the rescission hearing on the first appearance date. We agree. Section 2-118.1(b) of the Code provides in relevant part:

"Upon the notice of statutory summary suspension served under 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, or a similar provision of a local ordinance, 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." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).)

The State argues that the trial court erred in its reliance on In re Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614. The State argues that the facts in Trainor show that the first appearance date had already passed prior to defendant's request, and the trial court never had the option of holding the rescission hearing on the first appearance date, and, therefore, the appellate court in Trainor had no need to address the alternative hearing date authorized in the language of section 2 -- 118.1(b). We agree that Trainor does not directly address the facts of the instant case. Unlike Trainor, the instant case raises the issue of whether a hearing must be conducted within 30 days of a request to the court where the 30-day limit expires before the first appearance date on the uniform traffic ticket.

A plain reading of section 2-118.1(b) of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2. par. 2-118.1(b)) indicates that the use of the language "the hearing shall be conducted by the circuit court having jurisdiction" is a mandate tothe trial court to conduct a rescission hearing. (See People v. Gerke (1988), 123 Ill. 2d 85, 94, 525 N.E.2d 68 (unless context of statute indicates otherwise, "shall" indicates a mandatory obligation).) However, the mandate to conduct a rescission hearing is only triggered by a request from an affected driver to the court for a rescission hearing. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).) Once properly requested, the rescission hearing is to be held "[within] 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket." (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).) The language quoted above has been interpreted by our supreme court to mean within 30 days after receipt of the written request or on the first appearance date. (People v. Gerke (1988), 123 Ill. 2d 85, 91, 525 N.E.2d 68, 71 (held timing of rescission hearing under statutory summary suspension scheme did not violate due process).) Where, as here, the 30 days elapsed before the first appearance date on the DUI offense, section 2-118.1(b), although requiring the trial court to conduct a hearing, does not require the trial court to conduct a hearing within 30 days of the request for a rescission hearing. In such a situation, section 2-118.1(b) gives the court limited discretion in choosing the time at which to conduct a rescission hearing. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).) To hold otherwise would require us to narrowly interpret a statute, which, it has been long established, is to be liberally construed by the courts. (People v. Doty (1987), 164 Ill. App. 3d 53, 517 N.E.2d 338.) The trial court erroneously believed it had no choice but to order rescission of defendant's summary suspension of driving privileges. The trial court on March 7, 1988, "the first appearance date," should have conducted a full hearing on all four issues properly raised by defendant under section 2-118.1(b). (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).) Accordingly, we reverse and remand to the trial court for a full hearing on defendant's petition to rescind.

Additionally, we note that defendant was not charged with DUI by the issuance of a uniform traffic ticket. Although defendant was arrested and charged with two counts of DUI on January 28, 1988, he was charged by a verified complaint. Defendant was also given a uniform traffic ticket on January 28, 1988, citing him for an improper turn in violation of section 11-801(a) of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-801(a)). There was no court date on that part of the uniform traffic ticket set aside to inform a violator of an appearance date. The first appearance date of March 7, 1988, appeared on defendant's January 28, 1988, bail bond which referenced both DUI charges and the improper turn violation. Under the liberal interpretation of statutes implementing the implied consent scheme, it has been held that the issuance of a uniform traffic ticket is merely directory and not mandatory. (See People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 454 N.E.2d 1166 (implied consent statute operates upon arrest of defendant, and fact of arrest is not limited to proof as evidenced by the issuance of a uniform traffic ticket under section 11-501.1(a)).) Likewise, we do not interpret the language of section 2-118.1(b), which ...


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