In the recent decision of People v. Guillermo, 2016 IL. App (1st) 151799, it was decided that the summary suspension hearing held by the circuit court prior to receipt by the court of confirmation of the statutory summary suspension by the Secretary of State was not held in error but rather was timely as ripe for adjudication.
According to Illinois law a person arrested for DUI will automatically face a suspension of driving privileges under the Illinois Vehicle Code 625 ILCS 5/11-501.1(e). Subsequent to an arrest the officer may request the motorist submit to chemical testing. Upon refusal of testing, or test results showing a breath alcohol concentration of 0.08 or higher, the arresting officer must provide the motorist with notice of summary suspension. 625 ILCS 5/11-501.1(d), (f). The officer must also provide the Secretary of State and the appropriate court of venue with a copy of a sworn report. 625 ILCS 5/11-501.1(d). Upon receiving this sworn report, the Secretary of State must confirm the effective date of the summary suspension. 625 ILCS 5/11-501.1(h). To challenge this suspension, the motorist must file a Petition to Rescind the Statutory Summary Suspension within 90 days of being served with notice of the summary suspension. 625 ILCS 5/2 – 118.1(b).
Defendant motorist was arrested on January 3, 2015 for Driving Under the Influence of Alcohol (DUI). During the course of this arrest defendant was asked to submit to breath alcohol testing. Defendant refused to provide the arresting officer with a breath sample. Subsequent to this refusal the arresting officer provided a “Notice of Summary Suspension” to the defendant advising that a suspension of his driving privileges shall take effect on the 46th day following the issuance of the warning. On January 15, 2015 the defendant filed a petition to rescind the statutory summary suspension at the first scheduled court hearing. On February 6 the state and defendant agreed to continue the matter to February 13. On February 13 the court continued the matter because the Secretary of State had not filed a notice of confirmation of the suspension with the court of venue as required by 625 ILCS 5/11-501.1(h). On February 18, 2015 defendant moved for a rescission for not having a hearing within 30 days of the filing of his petition. The court denied this motion finding the delay from February 13 to February 18 was attributable to the defendant. The defendant had argued that the court lacked subject matter jurisdiction because of the lack of confirmation of the summary suspension and that the matter was not yet ripe for adjudication without the notice from the Secretary of State.
The appellate court found that the circuit court had subject matter jurisdiction over these proceedings, citing the defendant’s act of filing the petition. “The defendant’s petition clearly alleged the existence of a justiciable matter and the circuit court had the inherent power to hear and determine whether the defendant was entitled to rescind the summary suspension of his driving privileges.” Guillermo, 2016 IL App (1st) 151799, ¶9.
The appellate court also found the matter ripe for adjudication. “Since the summary suspension is ‘self-executing’ and automatically takes effect on the 46th day following issuance of the notice, there was nothing hypothetical or abstract about the suspension which the defendant sought to have rescinded.” Id., ¶16. The court added “The absence of a confirmation of suspension is of no import, as it had no impact on the court’s ability to grant effectual relief.” Id.
The defendant also argued that without the confirmation by the Secretary of State of the suspension there is no suspension to rescind. The court found again that the summary suspension framework is automatic, “section 11-501.1(g) is a self-executing provision under which a summary suspension automatically takes effect 46 days after the officer serves the motorist with notice that his or her license is to be suspended. By its confirmation, the Secretary of State was not actually suspending the driver’s license, rather, it was merely attesting to the effective date of the suspension.” Id., ¶17 citing People v. Morales, 2015 IL App (1st) 131207, ¶23. (For more on the Morales decision by this author please see http://lavellelaw.com/criminal/recent-dui-ruling-confirmation-summary-suspension)
“[T]he defendant’s argument that the circuit court must wait for a confirmation of suspension before holding a petition to rescind, cannot be squared with the plain and unambiguous language of section 2-118.1(b) and 11-501.1(h) of the Code.” Id., ¶18. Because there is no requirement that the Secretary of State file a confirmation with the circuit court within a specific time period, we cannot conclude that the Secretary of State’s failure to send a prompt confirmation of the suspension prevented the circuit court from holding a timely hearing on defendant’s petition to rescind.” Id.
A circuit court may hold a hearing on a petition to rescind the statutory summary suspension without waiting for confirmation of the suspension by the Secretary of State. A lack of a filed confirmation of the suspension in the court of venue is not grounds for a continuance of the hearing for either party. The court has jurisdiction to hold a hearing without the suspension having been confirmed by the Secretary of State.
If you would like to speak with the author, Lavelle Law attorney James R. Doerr, he can be reached at 847-705-7555.