                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Moreland, 2011 IL App (2d) 100699




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                     BENNY MORELAND, Defendant-Appellee.



District & No.              Second District
                            Docket No. 2-10-0699


Filed                       August 8, 2011


Held                        The trial court properly rescinded the statutory summary suspension of
(Note: This syllabus        defendant’s driver’s license where he was not afforded a hearing within
constitutes no part of      30 days after he filed his petition to rescind, despite the State’s argument
the opinion of the court    that the 30-day period did not begin to run until the suspension was
but has been prepared       confirmed by the Secretary of State.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Du Page County, No. 10-DT-1736; the
Review                      Hon. Cary B. Pierce, Judge, presiding.



Judgment                    Affirmed.
Counsel on                  Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
Appeal                      Assistant State’s Attorney, and Lawrence M. Bauer and Kristin M.
                            Schwind, both of State’s Attorneys Appellate Prosecutor’s Office, of
                            counsel), for the People.

                            Stephen J. Klein, of Ramsell & Associates, LLC, of Wheaton, for
                            appellee.


Panel                       JUSTICE BURKE delivered the judgment of the court, with opinion.
                            Justices Schostok and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1           At issue in this appeal is whether the 30 days in which a defendant is entitled to a hearing
        on a petition to rescind the statutory summary suspension of his driving privileges begins to
        run before the Secretary of State has confirmed the suspension. The trial court found that it
        does. For the reasons that follow, we affirm.
¶2           The facts relevant to resolving this appeal are as follows. On Saturday, May 1, 2010,
        defendant was observed driving erratically. A subsequent Breathalyzer test confirmed that
        defendant was driving while under the influence of alcohol (DUI) (see generally 625 ILCS
        5/11-501 (West 2008)). As a result, the arresting officer immediately served defendant with
        the officer’s sworn report. On that sworn report, defendant was advised that his driving
        privileges would be suspended 46 days after the sworn report was given to him and that he
        had a right to a hearing to contest the suspension. The sworn report indicated that, if
        defendant wished to contest the suspension, he had to file a petition to rescind the suspension
        within 90 days after the officer served defendant with the sworn report.
¶3           On Tuesday, May 4, 2010, defendant filed a petition to rescind the suspension of his
        driving privileges, giving notice of the petition to the State. On the first scheduled court date,
        which was May 21, 2010, defendant pointed out to the court that he did not see in the court
        file or in the Du Page Unified Court System a confirmation of the suspension. The State
        agreed. When defendant indicated that he was ready to proceed on his petition to rescind, the
        court questioned whether it could when the Secretary had not confirmed the suspension. That
        is, whether without a confirmation from the Secretary, there was a suspension to rescind.
        After the court continued the matter over defendant’s objection and advised defendant that
        the 30 days in which he was entitled to a hearing on his petition would not be tolled, the
        court reassessed the procedural posture of the case and struck the petition over defendant’s
        objection.
¶4           Three days later, on May 24, 2010, the Secretary filed with the court the confirmation of

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     the statutory summary suspension of defendant’s driving privileges. On June 4, 2010, 31
     days after defendant filed his petition, defendant moved to rescind the suspension, arguing
     that he was not afforded a hearing within 30 days after filing his petition. On June 7, 2010,
     defendant moved to reinstate his petition, and the trial court granted that motion. The court
     then reluctantly granted defendant’s petition to rescind, noting that defendant was not
     afforded a hearing within 30 days after he filed his petition and that the delay in holding the
     hearing was not attributable to him. This timely appeal followed.
¶5        At issue in this appeal is whether defendant, who was not afforded a hearing within 30
     days after filing his petition, is entitled to a rescission of the statutory summary suspension
     of his driving privileges when he petitioned to rescind the suspension before the Secretary
     had confirmed the suspension. Because this issue concerns a question of law, our review is
     de novo. People v. Brown, 374 Ill. App. 3d 385, 387 (2007).
¶6        Resolving the issue raised necessarily begins with examining section 2-118.1(b) of the
     Illinois Vehicle Code (Code) (625 ILCS 5/2-118.1(b) (West 2008)), which provides:
          “Within 90 days after the notice of statutory summary suspension served under Section
          11-501.1, the person may make a written request for a judicial hearing in the circuit court
          of venue. The request to the circuit court shall state the grounds upon which the person
          seeks to have the statutory summary suspension rescinded. Within 30 days after receipt
          of the written request or the first appearance date on the Uniform Traffic Ticket issued
          pursuant to a violation of Section 11-501, or a similar provision of a local ordinance, the
          hearing shall be conducted by the circuit court having jurisdiction.”
¶7        In interpreting section 2-118.1(b) of the Code, we must ascertain and give effect to the
     legislature’s intent. People v. Bywater, 223 Ill. 2d 477, 481 (2006). The best indication of the
     legislature’s intent is the language used in the statute, which must be given its plain and
     ordinary meaning. People v. McClure, 218 Ill. 2d 375, 382 (2006). When the statutory
     language is unambiguous, courts must construe the statute as written, without resorting to
     other aids of construction. Bywater, 223 Ill. 2d at 481. Courts must construe the statute as
     a whole, bearing in mind the subject that the statute addresses and the legislature’s apparent
     objective in enacting it. Id. at 481-82. Nevertheless, in so doing, a court should not read into
     the statute exceptions, limitations, or conditions that the legislature did not provide.
     McClure, 218 Ill. 2d at 382.
¶8        Section 2-118.1(b) of the Code is unambiguous. Id. at 388. It provides that a defendant
     “shall” be given a hearing on his petition to rescind within 30 days after the petition is
     received. The word “shall” conveys that the legislature intended to impose a mandatory
     obligation. Id. at 382. That obligation is fulfilled when the defendant has a hearing on his
     petition to rescind within 30 days after it is filed in the circuit court, with service on the State.
     See Bywater, 223 Ill. 2d at 486. Here, defendant was not given a hearing by June 3, 2010,
     which was 30 days after he filed his petition. Thus, the statutory summary suspension of
     defendant’s driving privileges must be rescinded. See People v. Schaefer, 154 Ill. 2d 250,
     262 (1993).
¶9        Although we determine that defendant is entitled to the rescission of the suspension
     because he was not given a hearing within 30 days after filing his petition, we agree with the


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       trial court that, without a confirmation of the suspension, there is not a suspension for the
       trial court to rescind. See People v. Madden, 273 Ill. App. 3d 114, 116 (1995) (“A suspension
       may not be rescinded until it has been confirmed.”). However, nowhere in section 2-118.1(b)
       of the Code does it indicate that the 30-day period begins with the Secretary’s confirmation.
       If we were to read this into section 2-118.1(b) of the Code, we would violate the rules of
       statutory construction that specifically prohibit us from doing so. Any change in the law that
       would mandate that the 30-day period does not begin until the Secretary confirms the
       suspension must come from the legislature, not the courts. See Floyd v. Rockford Park
       District, 355 Ill. App. 3d 695, 705 (2005) (“Any change in the status of the law must come
       from the legislature and not the courts.”).
¶ 10        That said, we note that courts have carved out an exception to the automatic rescission
       of the statutory summary suspension of a defendant’s driving privileges if the defendant is
       not given a hearing within 30 days after filing a petition to rescind. Pursuant to that
       exception, a defendant is not entitled to a rescission if the defendant caused the hearing to
       be delayed. See Schaefer, 154 Ill. 2d at 270; People v. Lagowski, 273 Ill. App. 3d 1012, 1016
       (1995). Here, defendant acted promptly in challenging the suspension. The fact that the
       Secretary confirmed the suspension only three days after defendant’s petition was stricken
       did not obligate defendant to move to reinstate his petition at that time. Requiring defendant
       to move to reinstate the petition immediately after the Secretary confirmed his suspension
       would also be reading into section 2-118.1(b) conditions that the legislature did not provide.
¶ 11        The State, likening section 2-118.1(b) of the Code to the speedy-trial provisions of the
       Code of Criminal Procedure of 1963 (see 725 ILCS 5/103-5 (West 2008)), claims that the
       30-day period should be tolled when there is no petition pending before the trial court, i.e.,
       when the petition has been stricken because the Secretary has not confirmed the suspension.
       The State’s argument is premised on People v. Cosenza, 215 Ill. 2d 308, 315-16 (2005),
       where our supreme court compared the 30-day limit in section 2-118.1(b) to the speedy-trial
       provisions in the Code of Criminal Procedure, and People v. O’Malley, 108 Ill. App. 3d 823,
       827 (1982), where the court observed that “[t]he speedy-trial term only runs when charges
       are pending against the defendant.” The problem with accepting the State’s position is that
       this court has found, in the speedy-trial context, that “[t]he speedy trial statute is not tolled
       by the striking of a charge with leave to reinstate and the charge must be dismissed on
       motion by defendant if more than the amount of time allowed by statute passes and none of
       the delay is attributable to defendant.” People v. Rodgers, 106 Ill. App. 3d 741, 745 (1982).
       Here, defendant’s petition clearly was stricken with leave to reinstate once the Secretary filed
       the confirmation, and, as noted, none of the delay in holding a hearing on the petition was
       attributable to defendant. Thus, this case falls under Rodgers, and the 30-day period in which
       defendant was entitled to a hearing on his petition to rescind was not tolled when the trial
       court struck the petition.
¶ 12        The State also urges this court to reverse the trial court’s ruling because not doing so will
       encourage defendants to manipulate the process for rescission hearings. This is true only if
       trial courts allow it. That is, it is not incumbent upon a trial court to dismiss or strike a
       petition if a confirmation from the Secretary is not on file. Indeed, because a defendant need
       not wait for the confirmation before filing his petition, the court would have no basis to

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       dismiss or strike it. If a defendant files a petition before the Secretary confirms the
       suspension, the trial court should simply continue the hearing to a date 30 days after the
       petition is filed. On that hearing date, if the Secretary has not confirmed the suspension, the
       suspension will be rescinded per Madden. However, if the Secretary has confirmed the
       suspension, the defendant will receive the prompt hearing to which he is entitled under
       section 2-118.1(b).
¶ 13       As an aside, we would be remiss if we did not point out that the Secretary’s 23-day delay
       in confirming defendant’s suspension, which confirmation was made only 20 days after
       defendant filed his petition, was nowhere near as long as in other cases involving a similar
       issue. See People v. Fitterer, 322 Ill. App. 3d 820, 821-24 (2001) (Secretary confirmed the
       defendant’s suspension 72 days after the defendant’s arrest and 33 days after the defendant
       filed his petition to rescind); Madden, 273 Ill. App. 3d at 114-16 (confirmation given 63 days
       after the defendant’s arrest and 36 days after the defendant filed his petition to rescind).
       However, although factual differences exist between this case and Fitterer and Madden, we
       determine, given the language of section 2-118.1(b), that the same result is warranted.
       Accordingly, we affirm the trial court’s order rescinding the statutory summary suspension
       of defendant’s driving privileges.
¶ 14       For these reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 15      Affirmed.




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