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People v. O'Neil

May 03, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EDWARD O'NEIL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 00-DT-3070 Honorable Ronald B. Mehling, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Released for publication May 7, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EDWARD O'NEIL, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Du Page County. No. 00-DT-3070 Honorable Ronald B. Mehling, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

PUBLISHED

Defendant, Edward O'Neil, appeals the trial court's order denying defendant's petition to rescind the statutory summary suspension of his driving privileges. The trial court denied the petition to rescind before conducting a hearing because defendant failed to file his petition within 90 days after defendant was allegedly notified about the suspension. See 625 ILCS 5/2--118.1(b) (West 2000). On appeal, defendant argues that (1) the Secretary of State's (Secretary's) failure to send a prompt confirmation of the suspension prevented defendant from filing a timely petition; (2) the Secretary's failure to send a prompt confirmation of the suspension should toll the time defendant has to file his petition; and (3) the State's failure to advise defendant about the 90-day limitations period should toll the running of the limitations period or prevent the Secretary from suspending defendant's driving privileges. We reverse and remand.

On July 15, 2000, defendant was driving in the area of Cass Avenue and Norfolk when he was stopped for, among other things, driving while under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 2000)). At that time, defendant was given the warning to motorists, and, on that same date, the arresting officer prepared a "Law Enforcement Sworn Report." In the report, the arresting officer indicated that pursuant to section 11--501.1 of the Illinois Vehicle Code (Code) (625 ILCS 5/11--501.1 (West 2000)), the officer immediately served defendant with notice that defendant's driving privileges were summarily suspended. The sworn report was filed in the trial court on July 21, 2000. The report did not notify defendant that he had a right to a hearing to rescind the suspension.

On November 13, 2000, defendant filed a petition to rescind the statutory summary suspension of his driving privileges. Around December 1, 2000, the Secretary mailed defendant confirmation of his summary suspension. On December 4, 2000, the trial court denied defendant's petition to rescind the suspension of his driving privileges and ordered the Secretary to continue the suspension. The court denied the petition to rescind because it was untimely. In the trial court's view, the petition to rescind had to be filed 90 days after defendant was served with notice of the suspension. In reaching this conclusion, the trial court found that defendant was advised of the suspension on July 15, 2000, the date he was arrested. This appeal followed.

Defendant first asserts that the trial court erred when it denied him a hearing on his petition to rescind the statutory summary suspension of his driving privileges. Defendant claims that he was denied procedural due process when the Secretary failed to give defendant timely confirmation of the suspension. According to defendant, the Secretary's failure to inform him about the suspension in a timely manner caused defendant to file his petition late. Defendant argues that he should not be required to file his petition within the statutory 90-day period because the Secretary failed to send prompt confirmation of the suspension.

Both parties cite to several statutes that are instructive. Section 2--118.1(a) of the Code (625 ILCS 5/2--118.1(a) (West 2000)) details when a defendant's suspension becomes effective as follows:

"A statutory summary suspension of driving privileges under Section 11--501.1 shall not become effective until the [defendant] is notified in writing of the impending suspension and informed that he may request a hearing in the circuit court of venue under paragraph (b) of this Section and the statutory summary suspension shall become effective as provided in Section 11--501.1." (Emphasis added.)

Section 2--118.1(b) of the Code (625 ILCS 5/2--118.1(b) (West 2000)) details the length of time a defendant has to file a petition to rescind the summary suspension. Specifically, section 2--118.1(b) provides:

"Within 90 days after the notice of statutory summary suspension served under Section 11--501.1, the [defendant] may make a written request for a judicial hearing in the circuit court ...


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