§ 4.16 Time of Hearing

• Library: Illinois DUI and Traffic-Related Decisions (2016 Ed.)

§ 4.16 Time of Hearing

In re Summary Suspension of Driver's License of Trainor, 156 Ill. App. 3d 918, 510 N.E.2d 614, 109 Ill. Dec. 746 (4th Dist. 1987). When a defendant files a motion to rescind the statutory summary suspension, in order to comply with the due process requirements, the hearing requested under sec. 2-118.1 must be held within 30 days unless delay is occasioned by the defendant, and the failure to do so will require rescission of the suspension. Additionally, a court has the power to stay the court's decision following a ruling on a sec. 2-118.1, but courts cannot stay a suspension prior to a ruling.

People v. Sargeant, 165 Ill. App. 3d 10, 518 N.E.2d 708, 116 Ill. Dec. 86 (4th Dist. 1987). The trial court improperly rescinded the statutory summary suspension when the report was properly sworn to under sec. 1-109 of the Code of Civil Procedure. Additionally, since defendant had never had a full scale hearing concerning the issues he had put within the petition to rescind, he was entitled to his hearing within 30 days of the mandate issued by the appellate court.

People v. Joiner, 174 Ill. App. 3d 927, 529 N.E.2d 268, 124 Ill. Dec. 448 (3d Dist. 1988). Defendant filed a petition to rescind with a hearing to be on 6/11/87. On 6/1/87 defendant filed a substitution of judge (SOJ), which was granted on 6/9/87. On 6/12/87 defendant filed a notice for hearing and after several continuances, the hearing was held on 6/24/87. The trial court rescinded the suspension because the hearing was not held with 30 days of the filing for petition. The appellate court reversed finding the 30-day period did not start until the new judge received the petition and the hearing had been held within 30 days of that date.

People v. Grange, 181 Ill. App. 3d 981, 537 N.E.2d 1153, 130 Ill. Dec. 824 (2d Dist. 1989). See People v. Sowers, 203 Ill. App. 3d 1059, 561 N.E.2d 469, 149 Ill. Dec. 191 (5th Dist. 1990). For purpose of starting the 30-day time period to receive a hearing on a petition to rescind, it is incumbent upon the defendant to bring such a request to the attention of a trial court. This is so the trial court can set a date for the hearing. The mere filing of a petition to rescind with the clerk's office will not start the 30-day period. In this case, defendant filed a petition to rescind on 2/3/88. The first court date was 3/17/88. Defendant moved to dismiss claiming he had not received his hearing within 30 days of his request. The trial court granted the dismissal despite the State answering ready on the first court date. The appellate court reversed the dismissal.

People v. Webb, 182 Ill. App. 3d 908, 538 N.E.2d 744, 131 Ill. Dec. 369 (1st Dist. 1989). Defendant received a ticket for DUI on 1/1/88. The first court date set was 2/5/88. Defendant filed a petition to rescind on 1/4/88. On 2/5/88 defendant moved to dismiss, claiming he had not received a hearing within 30 days. The State answered ready-for-the-hearing on the first court date, 2/5/88. The appellate court reversed the trial court's rescission finding the defendant was not deprived of due process since a hearing he had requested would have taken place on the first appearance date specified on the traffic ticket. Additionally, the hearing would have occurred 11 days before the suspension would take effect. Also a hearing on the first court date would be in conformity with the alternate time provisions set forth in the statute.

People v. Johnson, 202 Ill. App. 3d 809, 560 N.E.2d 430, 148 Ill. Dec. 128 (3d Dist. 1990). Defendant was issued a ticket for DUI on 10/14/89. Additionally a notice of suspension was issued to defendant. On 11/22/89 defendant filed a petition to rescind and a petition for a JDP. On 12/6/89 a hearing on the JDP was set. However no hearing date was set for the SSS hearing. On 1/4/90 defendant filed a motion to strike the suspension because a hearing was not held within 30 days. The trial court granted the motion and the appellate court affirmed.

People v. Gresik, 205 Ill. App. 3d 1082, 563 N.E.2d 1049, 150 Ill. Dec. 922 (1st Dist. 1990). Defendant was arrested for DUI on 5/19/88. Defendant either refused to or failed to complete a breathalyzer test. A summary suspension of his license was to go into effect on 7/4/88 and the first court date was set for 6/28/88. On 5/23/88 defendant's attorney filed a motion to rescind the statutory summary suspension and sought a hearing on 6/22/88. The State asked for a continuance and was granted until 6/28/88, the original hearing date set by the officer. On 6/23/88 defendant filed a motion to dismiss because he was not granted a hearing within 30 days. The trial court denied the motion to dismiss. The appellate court affirmed, finding the defendant's due process rights were not violated since he had a hearing on the first appearance date and this hearing was conducted prior to the date the summary suspension was to take effect.

People v. Allen, 217 Ill. App. 3d 740, 577 N.E.2d 913, 160 Ill. Dec. 588 (5th Dist. 1991). On 12/26/89 defendant was arrested and charged with DUI. Defendant failed to take a breath test. His suspension was to go into effect 2/9/90. On 1/16/90, defendant filed a petition to rescind and the hearing was set for 2/15/90. Between 1/16/90 and 2/15/90, the State's Attorneys Office was removed from the case. After the State was reinstated to prosecute the matter, the State obtained a continuance to 3/1/90. The trial court granted a rescission...