APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
538 N.E.2d 744, 182 Ill. App. 3d 908, 131 Ill. Dec. 369 1989.IL.660
Appeal from the Circuit Court of Cook County; the Hon. John K. Madden, Judge, presiding.
JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
In this appeal the State seeks to overturn an order of the circuit court of Cook County which rescinded the statutory summary suspension of defendant's driving privileges. The rescission order was entered before the suspension took effect and was based on the court's determination that defendant had been denied his due process right to a fair and prompt hearing when his petition for rescission was not heard within 30 days of its filing. The State now challenges the correctness of that determination.
The record shows that on January 1, 1988, Glenview police officer Mark Greene cited defendant for driving under the influence of liquor in violation of the Illinois Vehicle Code. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2).) The breath test which followed his arrest disclosed an alcohol concentration of 0.12, and based on this result, Greene immediately notified defendant that his driving privileges would be suspended for a minimum of three months. On January 19, 1988, the office of the Secretary of State sent defendant a confirmation of this three-month suspension effective February 16, 1988.
In the meantime, defendant filed a petition to rescind the statutory summary suspension of his driving privileges. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1.) The record shows that defendant's petition was filed on January 4, 1988, and was called before the court on February 5, 1988. This February date coincided exactly with the appearance date set forth on the traffic citation issued to defendant and was also reflected on defendant's petition to rescind. When the case was called, defense counsel filed his appearance and advised the court of the pending petition to rescind. Counsel then requested leave to file a motion to dismiss the statutory summary suspension of defendant's driving privileges based on the fact that a hearing had not been held on defendant's rescission request within 30 days of its filing as mandated by statute.
The State informed the court that defendant's notice to the State was postmarked January 29, 1988, but was not actually received in the State's Attorney's office until February 2, 1988. Thus, the prosecution argued, the State did not have sufficient time to advance defendant's case to meet the 30-day statutory time provision, but that it was ready to proceed with the hearing on this date which, the State pointed out, coincided with the first appearance date on the traffic citation and thereby conformed with the second time provision set forth in the statute.
After considering the motion, the court ruled that defendant's notice to the State was adequate since it conformed with the notice required in civil proceedings, then addressed the substantive issue raised by the defense. The court commented on the need for guidance regarding the proper interpretation to be given the time frames set forth in the statute, then rescinded the statutory summary suspension of defendant's driving privileges based on the fact that defendant's petition had not been heard within 30 days of its filing as provided in the statute and ruled mandatory in In re Summary Suspension of Driver's License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614.
This appeal follows in which the State contests the propriety of that decision. The State first asserts that the statute provides for alternate hearing dates and that the latter provision was met in this case. Secondly, the State maintains that defendant was not subjected to any deprivation of due process in these proceedings because, unlike the situation in Trainor, defendant's driving privileges had not been suspended before the rescission hearing was set to begin.
At issue is the proper interpretation to be given section 2 -- 118.1(b) of the Illinois Vehicle Code, which provides in relevant part as follows:
"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. . . . 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." (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).)
The Trainor court interpreted this 30-day time period as mandatory and held that the failure to hold a hearing within 30 days of the request, unless the delay was occasioned by defendant, violated defendant's right to due process. (Trainor, 156 Ill. App. 3d at 922-23.) In so holding the Trainor court commented that the time frame specified in the statute reflected the legislature's determination of what constitutes a prompt hearing for due process requirements, and that the only appropriate ...