People v. Johnson

• Decision Date: 07 September 1990
• Docket Number: No. 3-90-0125,3-90-0125
• Citation: People v. Johnson, 560 N.E.2d 430, 202 Ill.App.3d 809, 148 Ill.Dec. 128 (Ill. App. 1990)
• Parties: , 148 Ill.Dec. 128 The PEOPLE of the State of Illinois, Respondent-Appellant, v. Robert A. JOHNSON, Petitioner-Appellee.
• Court: Appellate Court of Illinois

Page 430

560 N.E.2d 430

202 Ill.App.3d 809, 148 Ill.Dec. 128

The PEOPLE of the State of Illinois, Respondent-Appellant, v. Robert A. JOHNSON, Petitioner-Appellee.

No. 3-90-0125.

Appellate Court of Illinois Third District.

Sept. 7, 1990.

Gary F. Gnidovec, States' Attorneys Appellate Prosecutor, Ottawa, Kevin W. Lyons, State's Atty., Peoria, for the People.

Kim Kelly, Peoria, for Robert A. Johnson.

Presiding Justice HEIPLE delivered the opinion of the court:

The petitioner, Robert A. Johnson, filed a petition to rescind the statutory summary suspension of his driver's license. The trial court granted his petition, and the State appeals. We affirm.

The record reveals that on October 14, 1989, the petitioner was issued a citation for driving under the influence of alcohol (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501(a)(2)). He was also served with a notice of summary suspension based upon his refusal to submit to a breathalyzer test (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501.1). On November 22, 1989, the petitioner filed a petition to rescind his summary suspension and a petition for a judicial driving permit (JDP).

A hearing was subsequently set for December 6, 1989, on the petition for a JDP. No hearing was set for his petition to rescind the summary suspension.

On January 4, 1990, the petitioner filed a motion to strike the statutory summary suspension, alleging that the clerk of the circuit court had failed to set a hearing on his rescission petition within 30 days as required under section 2-118.1(b) of the Illinois Vehicle Code (Ill.Rev.Stat.1989, ch. 95 1/2, par. 2-118.1(b)). Following a hearing on the motion, the trial court found that since no hearing date was set within 30 days, the petitioner's summary suspension must be rescinded.

The State argues on appeal that the trial court erred in concluding that it was the prosecutor's or the clerk's responsibility to set the hearing date.

Section 2-118.1(b) of the Illinois Motor Vehicle Code provides in relevant part:

"Upon 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, * * * the hearing shall be conducted by the circuit court having jurisdiction. * * *." Ill.Rev.Stat.1989, ch. 95 1/2, par. 2-118.1(b).

Initially, we note that a petitioner seeking rescission of his summary suspension bears the burden of proceeding and the burden of proof. (People v. Joiner (3rd Dist., 1988), 174 Ill.App.3d 927, 124 Ill.Dec. 448, 529 N.E.2d 268.) Once a hearing to rescind the suspension is requested, it must be held within 30 days of the request. This 30-day period is mandatory, the legislature having determined that this time period constitutes a prompt hearing under the due process requirements. (In re Summary Suspension of Driver's License of John E. Trainor (4th Dist., 1987), 156 Ill.App.3d 918, 109 Ill.Dec. 746, 510 N.E.2d 614.) Failure to hold a hearing within the required 30 days violates the driver's due process rights. The only appropriate remedy is to require...