Appeal from the Circuit Court of Du Page County. No. 09-DT-3746 Honorable Cary B. Pierce, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.
¶ 1 The State appeals from the October 16, 2009, order of the circuit court of Du Page County that granted the petition of the defendant, Robert Pollitt, to rescind the statutory summary suspension of his driving privileges. The State also appeals from the November 10, 2009, order of the circuit court that denied its motion to reconsider. We affirm.
¶ 2 On September 2, 2009, at 10:25 p.m., the defendant was arrested for driving under the influence (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2006)), speeding (625 ILCS 5/11-601(b) (West 2006)), and failure to signal when required (625 ILCS 5/11-804 (West 2006)). The defendant was transported to the Addison police department. Also on September 2, 2009, at 11:29 p.m., the arresting officer warned the defendant about the consequences of submitting to a blood, breath, or urine chemical test. 625 ILCS 5/11-501.1(c) (West 2006). The defendant agreed to submit to a breath test. The breath test readout ticket indicated that the defendant took the test at 12:11 a.m. on September 3, 2009, and that he had a blood alcohol content of 0.144. The officer subsequently completed a document entitled "law enforcement sworn report." The report indicated that the defendant submitted to a breath test on September 3, 2009, but that the defendant was given notice of the statutory summary suspension of his driver's license on September 2, 2009. The officer submitted a copy of the sworn report to the Secretary of State's office and the clerk of the circuit court. The defendant received notice from the Secretary of State that the suspension would begin October 18, 2009.
¶ 3 On September 11, 2009, the defendant filed a petition to rescind the statutory summary suspension of his driving privileges, challenging only whether the officer had a proper basis to stop and investigate him for a DUI violation. The petition did not indicate that the defendant was challenging the suspension on the basis of defects in the sworn report. On October 2, 2009, the parties appeared in court and, at the defendant's request, the case was continued to October 16, 2009.
¶ 4 On October 16, 2009, the parties appeared for a hearing on the defendant's petition. The defendant noted that although the breath test was administered at 12:11 a.m. on September 3, 2009, the officer's sworn report indicated that the notice of statutory summary suspension was given on September 2, 2009. The defendant further noted that, pursuant to the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501.1(g) (West 2006)), his suspension was required "to take effect on the 46th day following the date the notice of the statutory summary suspension was given." The defendant argued that, because of that error, the Secretary of State was suspending his license a day early, namely, as of October 18, 2009, rather than October 19, 2009. The defendant held a commercial driver's license (CDL) and he argued that starting his suspension a day early was a violation of his right to due process. The defendant also noted that the officer did not mark the box to indicate that the notice of suspension was served immediately upon the defendant after he failed the breath test.
¶ 5 The State argued that due process required only that a hearing on the defendant's petition to rescind be held within 30 days of the filing of his petition. The defendant was afforded an opportunity for such a hearing. The State argued that there was no case law to support the proposition that starting a suspension 45 days, rather than 46 days, after the requisite notice entitled a defendant to a rescission. The State also argued that "in regards to the box not being checked, I will have the trooper come in here and testify that he personally served the defendant." However, the State never called the trooper to testify.
¶ 6 Ultimately, the trial court found as follows:
"the consequences of this scrivener's error or whatever is not curable by any other mechanism but the Court using its equitable powers to rescind. I mean, it probably technically is against the intent of the legislature. However, it is clearly in violation of the 46 days.
There is no other relief that can be given this defendant civilly against the Secretary of State or the State Police or the prosecutors because of the 24[-hour] loss of his privilege to drive. Therefore, I find it to be a critical mistake that cannot be amended, and there's no other relief available for the defendant to cure this, so I'm going to rescind it."
Thereafter, the State requested one week to file a motion to reconsider. The trial court granted that request but noted that it was going to enter the rescission.
¶ 7 On October 20, 2009, the State filed a motion to reconsider the trial court's October 16, 2009, ruling. The State argued that there were only four grounds upon which a suspension could be rescinded (see 625 ILCS 5/2-118.1(b) (West 2006)) and that a suspension starting 45 days after notice was given was not one of those reasons. The State argued that the purpose of the 46-day delay was to give a driver an opportunity to stop an improper suspension from taking effect. The State argued that the defendant had that opportunity, as he had filed a petition to rescind and had two opportunities for hearing on the petition. The State further argued that misdating a sworn report was a defect that could be cured by amending the sworn report. Accordingly, the State requested that the trial court vacate its order rescinding the defendant's summary suspension and immediately hold a suspension hearing, at which time the State could amend the report or, alternatively, reopen the proofs. In response, the defendant argued that the sworn report was fatally defective, that the State never attempted to amend the report, and that the rescission order should not be vacated.
¶ 8 On November 10, 2009, a hearing was held on the State's motion to reconsider. The defendant argued that his petition to rescind was filed on September 11, 2009, and that the State never made a motion to amend the sworn report. The defendant further argued that case law supported a rescission of a suspension based on a defective sworn report. The State argued that there was no case law providing that a defendant is entitled to 46 days' notice before his suspension begins. The State argued that a defendant is entitled only to a hearing before ...