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12/31/96 PEOPLE STATE ILLINOIS v. JOHANNES W.

December 31, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHANNES W. LUYTEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Francis W. Glowacki, Judge Presiding.

Released for Publication February 13, 1997.

The Honorable Justice Rakowski delivered the opinion of the court: DiVITO, P.j., and McNULTY, J., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Defendant Johannes W. Luyten appeals from an order of the circuit court denying his motion to rescind the statutory summary suspension of his driver's license. Defendant contends the court erred in determining the State can set a hearing date either within 30 days after receipt of defendant's request for a hearing or on the first appearance date shown on the traffic ticket.

On October 24, 1995, defendant was arrested for driving under the influence of alcohol. The officer issued defendant a traffic citation, which listed a court appearance date of December 1, 1995. On October 25, 1995, defendant received notice of the statutory summary suspension, which, pursuant to statute, was to become effective 46 days after notice of the suspension. On October 26, 1995, 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 (the Code) (625 ILCS 5/2-118.1(b) (West 1994)). Defendant did not mail notice of the filing to the State until November 7, 1995. The State received notice on November 9, 1995.

On December 1, 1995, the appearance date listed on defendant's traffic citation, defendant appeared in court and moved to rescind the summary suspension on the ground that he had not received a rescission hearing within 30 days after his request. The circuit court denied defendant's motion to rescind and later denied defendant's motion to reconsider.

Defendant claims section 2-118.1(b) of the Code requires a hearing be held within 30 days after his request. He argues he was denied due process of law when the hearing was not held within 30 days of his request. The State contends section 2-118.1(b) of the Code requires a hearing either within 30 days of defendant's request or on the first appearance date. The State maintains due process requirements were met because the hearing was held on the date listed on defendant's traffic citation.

Section 2-118.1(b) of the Code provides in part:

"(b) Upon the notice of statutory summary 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 issued *** 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." 625 ILCS 5/2-118.1(b) (West 1994).

The Illinois Supreme Court has held that section 2-118.1(b) of the Code creates alternate dates for a hearing on a defendant's challenge to 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 his petition to rescind. People v. Smith, 172 Ill. 2d 289, 295, 216 Ill. Dec. 658, 665 N.E.2d 1215 (1996); People v. Schaefer, 154 Ill. 2d 250, 253, 257, 182 Ill. Dec. 26, 609 N.E.2d 329 (1993); People v. Gerke, 123 Ill. 2d 85, 91, 121 Ill. Dec. 262, 525 N.E.2d 68 (1988). However, defendant cites Schaefer for the proposition that once a motorist files a proper petition for a hearing, the 30-day period commences and the motorist is entitled to a hearing within that time if the 30 days lapse before the first appearance date.

In Schaefer, the supreme court consolidated three cases (People v. Schaefer, No. 72884; People v. Hill, 154 Ill. 2d 250, 609 N.E.2d 329, 182 Ill. Dec. 26; and People v. Puckett, 154 Ill. 2d 250, 609 N.E.2d 329, 182 Ill. Dec. 26) involving defendants who had filed petitions for a judicial hearing to rescind their summary suspensions. The issue before the court was when the 30-day period commences for purposes of a hearing to rescind statutory summary suspension of a driver's license. The court held:

"The 30-day statutory period 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 then shift to the State." Schaefer, 154 Ill. 2d at 261, 609 N.E.2d 329, 182 Ill. Dec. 26.

The court further held that in order to comply with due process, the rescission hearing pursuant to section 2-118.1(b) must be held within 30 days unless delay is occasioned by the defendant. Schaefer, ...


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