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08/16/94 PEOPLE STATE ILLINOIS v. DAVID HOLMES

August 16, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
DAVID HOLMES, PETITIONER-APPELLANT.



Appeal from the Circuit Court of Kankakee County, Illinois. No. 89-TR-5126. Honorable Sheldon Reagan Judge, Presiding

Rehearing Denied September 20, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Slater

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. 95 1/2, 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. 95 1/2, 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 July23, 1993, the State argued that petitioner was not entitled to a recision 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 recision 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 three and one-half 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:

"(b) 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 ...


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