Appeal from the Circuit Court of Cook County. The Honorable Charles E. Porcellino, Judge Presiding.
As Modified On Denial of Rehearing July 21, 1995. Released for Publication August 16, 1995.
The Honorable Justice T. O'brien delivered the opinion of the court: Gordon And MC Nulty, J.j., concur.
The opinion of the court was delivered by: O'brien
JUSTICE T. O'BRIEN delivered the opinion of the court:
MODIFIED UPON DENIAL OF REHEARING
Defendant, Kimberly Lagowski, appeals from an order of the circuit court which denied her motion to dismiss the summary suspension of her driving privileges. On appeal, she contends the circuit court erred in denying her motion because the hearing she requested was untimely held. This court initially affirmed the circuit court's decision in an unpublished order. (People v. Lagowski (1st Dist. 1994), No. 93-1853 (unpublished order under Supreme Court Rule 23).) Our supreme court allowed defendant's petition for leave to appeal (People v. Lagowski (No. 77439 October 6, 1994), appeal granted) and subsequently ordered this court to reconsider our judgment in light of People v. Schaefer (1993), 154 Ill. 2d 250, 609 N.E.2d 329, 182 Ill. Dec. 26. We again affirm the circuit court's order.
On January 24, 1993, at 1:45 a.m., an Elk Grove police officer issued defendant traffic citations for improper lane usage, illegal transportation of alcohol, and driving under the influence of alcohol. After defendant declined to take a breath test, the officer issued a warning that her driving privileges would be suspended. The court appearance date listed on the citations was March 5, 1993. The Secretary of State sent defendant confirmation of the statutory suspension, indicating that it would take effect on March 11, 1993.
On January 29, 1993, defendant filed a petition to rescind the summary suspension and requested a hearing pursuant to section 2-118.1(b) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 1-118.1(b).) On March 5, 1993, the first appearance date indicated on defendant's traffic citation, she appeared in court and moved to dismiss the statutory summary suspension on the ground that she had been denied due process of law when the rescission hearing she had requested was not held within 30 days of her request. The circuit court confirmed the summary suspension.
Defendant claims section 2-118.1(b) requires the circuit court to conduct a hearing within 30 days of her request. (See Ill. Rev. Stat. 1991, ch. 95 1/2, par. 2-118.1(b).) The State maintains the statute requires a hearing either within 30 days of the defendant's request or on the first appearance date. The State insists the circuit court complied with the statute by holding the hearing on the latter date.
The statutory summary suspension is an administrative function of the Secretary of the State. ( People v. Schaefer, 154 Ill. 2d at 256.) The hearing is a civil proceeding, separate and apart from the criminal hearing regarding the charge of driving while under the influence of alcohol. ( People v. Schaefer, 154 Ill. 2d at 257.) In fact, the dismissal of the criminal charge does not result in the automatic rescission of the suspension. ( People v. Schaefer, 154 Ill. 2d 250 at 257 at 257-58, 182 Ill. Dec. 26, 609 N.E.2d 329.) Section 2-118.1(b) provides in pertinent part that
"upon the notice of statutory suspension ***, 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 ***, 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. 1991, ch. 95 1/2, par. 2-118.1(b).)
The supreme court has held that section 2-118.1(b) created two alternative dates for a hearing on a defendant's challenge to the summary suspension: (1) on the first court date set in the traffic citation issued to the motorist; or (2) within 30 days of a defendant's written request for a hearing on her petition to rescind. ( People v. Schaefer, 154 Ill. 2d at 253 citing People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68, 121 Ill. Dec. 262.) The court recognized that the motion to rescind made on the court date set by the traffic citation could be oral or written. ( People v. Schaefer, 154 Ill. 2d at 253.) However, once a motorist files a proper petition for the administrative hearing with the clerk of the appropriate circuit court, the 30 day statutory period commences. ( People v. Schaefer, 154 Ill. 2d at 261.) The hearing must be held within 30 days of the filing "'unless delay is occasioned by the defendant.' " (Emphasis in original) ( People v. Schaefer 154 Ill. 2d at 262 quoting In re Summary Suspension of Driver's License of Trainor (1987), 156 Ill. App. 3d 918, 923, 510 N.E.2d 614, 109 Ill. Dec. 746.) If the hearing is not timely held, due process requires that the summary suspension of the motorist's driving privileges must be rescinded. People v. Schaefer, 154 Ill. 2d at 260.
In People v. Schaefer, the supreme court consolidated three cases involving defendants who had filed petitions for the judicial hearing to rescind the summary suspension. In each case, the hearing was held beyond the 30 day period mandated by statute, and, in each case but one, the court concluded that the untimely hearing failed to comport with due process. ( People v. Schaefer, 154 Ill. 2d at 261, 264.) In the case involving defendant Jack Puckett, Puckett filed his petition and requested a hearing date from the clerk of the circuit court. However, the hearing was not set at that time. Rather, the clerk informed Puckett that the clerk's office would set the hearing and send out notice. No hearing was ever set, and after 30 days had passed Puckett filed a motion to rescind the suspension of his driving privileges due to the lack of a timely hearing. The circuit court granted the motion. The supreme court upheld the dismissal, concluding
"that the 30 day period [applicable to petitions to rescind statutory summary suspension of driver's license] commences on the date of the filing of a proper petition to rescind in the circuit court of venue, with service on the State, in accordance with the rules of this court. The burden to set the court hearing date would ...