People v. Joiner

• Decision Date: 26 September 1988
• Docket Number: No. 3-87-0487,3-87-0487
• Citation: People v. Joiner, 529 N.E.2d 268, 174 Ill.App.3d 927, 124 Ill.Dec. 448 (Ill. App. 1988)
• Parties: , 124 Ill.Dec. 448 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jodi L. JOINER, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 268

529 N.E.2d 268

174 Ill.App.3d 927, 124 Ill.Dec. 448

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jodi L. JOINER, Defendant-Appellee.

No. 3-87-0487.

Appellate Court of Illinois Third District.

Sept. 26, 1988.

William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, Gary L. Peterlin, State's Atty., Criminal Justice Center, Ottawa, Dale M. Wood, State's Attys. Appellate Prosecutor, for the People.

Jodi Joiner, Joliet, pro se.

Presiding Justice STOUDER delivered the opinion of the court:

The State appeals the rescission of the statutory summary suspension of the driver's license of the defendant, Jodi L. Joiner. We reverse.

Initially, we note that the defendant failed to file a brief. However, we choose to decide the merits of this appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

On May 3, 1987, the defendant was issued a uniform traffic citation charging her with driving under the influence of alcohol. The defendant subsequently took a breathalyzer examination which disclosed a blood-alcohol concentration of .10%. On May 12, 1987, the defendant was notified that her driver's license would be suspended for 3 months, effective June 18, 1987.

On May 19, 1987, the defendant filed a petition to rescind the statutory summary suspension of her license. The petition was scheduled for a hearing on June 11, 1987. On June 1, 1987, the defendant filed a motion for substitution of judge. The motion was granted on June 9, 1987. The cause was assigned to Judge Fred Wagner. On June 12, 1987, the defendant filed notice calling for a hearing before Judge Wagner on the petition to rescind the statutory summary suspension. After several continuances, the petition hearing was held on June 24, 1987. At the hearing, the judge granted the petition because more than 30 days had elapsed from the filing of the petition to rescind, in violation of section 2-118.1(b) of the Illinois Vehicle Code.

On appeal, the State argues that the trial court erroneously granted the defendant's petition to rescind the statutory summary suspension. We agree.

Section 2-118.1(b) of the Illinois Vehicle Code (the Code) in relevant part provides that when a person receives notice of the statutory summary suspension of her driver's license pursuant to section 11-501.1 of the Code (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.1), she may request a hearing to rescind the statutory summary suspension. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1(b).) According to section 2-118.1(b), the hearing is to be held within 30 days of the filing of the request or the first appearance on the driving under the influence charge. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1(b).) When a defendant files a petition to rescind statutory summary suspension of her driver's license, the burden of proceeding and the burden of proof is on the defendant. People v. Brandt (1988), 165 Ill.App.3d 406, 116 Ill.Dec. 495, 519 N.E.2d 85; In re Trainor (1987), 156 Ill App.3d 918, 109 Ill.Dec. 746, 510 N.E.2d 614.

In Trainor, the Fourth District was presented with a situation similar to that confronting the court here. The defendant Trainor filed a request for a summary suspension rescission hearing. Before 30 days had elapsed from the filing of the request, the defendant filed a motion for substitution of judge. The motion was granted. Still within the 30-day limit, the defendant requested from the new judge a date for the rescission hearing. Two weeks after the expiration of the 30-day period, the defendant filed a motion to rescind suspension for lack of a timely hearing. The motion was denied.

On appeal, the Fourth District initially held that the...