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The People of the State of Illinois v. David K. Elliott

November 1, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
DAVID K. ELLIOTT,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Perry County. No. 09-TR-2334 Honorable James W. Campanella, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

NOTICE

The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Welch and Chapman concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, David K. Elliott, was issued a citation in Perry County for driving on a suspended driver's license. The circuit court entered a judgment of guilt. On appeal, defendant raises the issue of whether the conviction was proper given that his statutory summary suspension was rescinded.

¶ 2 We reverse.

¶ 3 FACTS

¶ 4 From August through October 2009, defendant was the subject of two traffic stops and several court proceedings related to his driving privileges. The first traffic stop was on August 26, 2009. After the stop, defendant was issued a citation for driving under the influence (DUI), and a complaint for DUI was filed in Jackson County.

¶ 5 On September 1, 2009, counsel for defendant filed a petition for rescission of statutory summary suspension. On September 3, 2009, the circuit clerk sent notice setting the petition for a hearing on September 21, 2009. On September 11, 2009, the State filed a confirmation of statutory summary suspension setting the suspension to start on October 11, 2009. On September 17, 2009, defendant filed a motion to continue, and the following day the court granted a continuance with delay attributable to defendant. The clerk was instructed to set the matter for a hearing on October 5, 2009. On September 21, 2009, the court again continued the matter, this time to October 19, 2009. The docket entry of the court does not reflect who requested the delay.

¶ 6 In October, the matter of defendant's statutory summary suspension was resolved by the circuit court of Jackson County. On October 11, 2009, 45 days after the notice of statutory summary suspension was issued, the suspension commenced. On October 19, 2009, the circuit court heard the petition. A docket entry on that date indicates that the petition was granted and the court ordered rescission of the suspension. On October 23, 2009, the Secretary of State entered a "Notice/Order of Rescind."

¶ 7 In the same month, defendant was issued a citation in an adjacent county that eventually led to this appeal. On October 13, 2009, defendant was stopped while driving in Perry County and issued a citation for driving while license suspended. 625 ILCS 5/6-303 (West 2008). The traffic stop was after the commencement of the summary suspension of October 11, 2009, but before the hearing and the order to rescind issued October 19, 2009. On November 22, 2010, the circuit court of Perry County entered an order finding defendant guilty of driving on a suspended license and ordering defendant to pay a fine and serve either 10 days in jail or 30 days of community service.

¶ 8 Defendant appeals.

¶ 9 ANALYSIS

¶ 10 Upon refusing to submit to testing for DUI, defendant was issued a notice of statutory summary suspension. The notice informed defendant that his driver's license would be suspended beginning in 46 days. 625 ILCS 5/11-501.1, 2-118.1 (West 2008). In this case, defendant filed a petition to rescind his suspension before it took effect, but the ruling on the petition was not handed down until after defendant had been issued a citation for driving on a suspended driver's license.

¶ 11 Section 2-118.1 of the Illinois Vehicle Code (Vehicle Code) sets forth the standards for a petition to rescind. A driver may petition the court within 90 days of the notice for a hearing to contest the statutory suspension. 625 ILCS 5/2-118.1(b) (West 2008). The court is required to hold a hearing within 30 days of receipt of the driver's petition or the first appearance date for the DUI ticket. 625 ILCS 5/2-118.1(b) (West 2008). "[The] hearing, request, or process shall not stay or delay the statutory summary suspension." 625 ILCS 5/2-118.1(b) (West 2008).

ΒΆ 12 The scope of the hearing is limited. 625 ILCS 5/2-118.1(b)(1)--(4) (West 2008). Section 2-118.1 limits the scope of a hearing on a petition to rescind to: (1) whether the defendant was placed under arrest for driving under the influence; (2) whether the arresting officer had reasonable grounds to believe that the defendant was driving under the influence; (3) whether, after being advised that the privilege to operate a motor vehicle would be suspended if he refused to submit to blood-alcohol testing, the defendant refused to submit to such a test; and (4) whether, after being so advised, the defendant ...


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