## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Elli ott, 2012 IL App (5th) 100584

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DAVI D K. EL L I OTT, De fenda nt-Appellant.

District & N o. Fifth District Docke t No. 5-10-0584

Filed November 1, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for driving while his license was suspended was

reve rsed on the g round that the suspension was resc inded a few day s afte r the citation was issued, even though the suspension commence d shortly befo re t h e citation was issued, since the resc ission of the suspension constituted a finding that the suspension was void fr om its i nception.

Dec ision Under Review Appea l from the Circuit Court of Perry County
, No. 09-TR-23 3 4 ; the Hon. J ames W. Campanella, Judge , presiding

.

J udg ment Reverse d.Counsel on

Appea l Edwar d W. Unsell, of L aw Office of Edward W

. Unsell
, of East Alton, for a ppellant.

David Stanton, State’s Attorney
, of Pinckney ville (Patrick Delfino, Stephen E. Norr is, and Neha Sharma, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE GOL DENHERSH delivere d the j u dg ment of the court, with opinion.
J ustices Welch and Chapma n concur red in the judg ment and opinion.

OP INION

¶ 1 Defen d an t , Da v i d K. E l l i o t t , wa s issued a citation in Perry County for driving on a suspended driver’ s license. The circ uit co u rt enter ed a judgme nt of g uilt. On appea l, defe ndant raises the iss u e o f whether the conviction was proper g iven that his statutory summary suspension was re scinded. ¶ 2 We reve rse.

¶ 3 FACTS ¶ 4 Fr om Aug ust throug h October 2009, defe ndant was the subject of two traff ic stops a nd

sever al court pro ce ed i n gs related to his driving privileg es. The first traff ic stop was on Augu s t 2 6
, 2 009. After the stop, defe ndant was issued a citation for driving under the influence (DUI ), and a

complaint for DU Iwas filed in Jackson County

. ¶ 5 On September 1, 2009, counsel for defe ndant filed a petition f or resc ission of statutory
summary suspension. On September 3, 2009, the circ uit cler k sent notice setting the petition for a hear ing on September 21, 2009. On September 11, 2009, the State filed a confirmation of statutory summary suspension sett i ng the suspension to start on October 11, 2009. On September 17, 2009, de fenda nt filed a motion to continue, and the f ollowing da

y the cour t g rante d a continuance wi th delay attributable to defe ndant. The cler k was inst ructe d to set the matter for a hear ing on October 5, 2009. On September 21, 2 009, the court ag ain continued the matter , this ti me to O ctober 19, 2009. The docket entry of the court does not ref lect who r equeste d the delay

. ¶ 6 I n October
, the matter of defe ndant’s statutory summary suspension was resolved by the circ uit court of Jackson County . On Octobe r 11, 2009, 45 day s after the notice of

statutory

summa ry s uspension was issued, the suspension commence d. On October 19, 2009, the circuit court hear d the petition. A docket entry on that date indicates that the petition was

-2-granted and the court order ed resc ission of the suspension. On October 23, 2009, th e

Secre tary of State ente red a

“Notice /Order

of Rescind.” ¶ 7 I n the same month, defe ndant was issued a citation in an adjac ent county that eventua lly led to this appeal

. On Oc t o b er 13, 2009, defe ndant was stopped while driving in Perry County and issued a citation for driving while license suspe nded. 625 I L CS 5/6-303 (West 2008). The traff

ic stop was afte r the commence ment of the summary suspension of October 11, 2009, but befor e the hear in g an d t he order to resc ind issued October 19, 2009. On November 2 2
, 2010, the circ uit court of Perry County enter ed an order finding defe ndant
g uilty of driving on a suspended license and order ing defe ndant to pay a fine and serve either 10 day s in jail or 30 day s of community service

. ¶ 8 Def

endant a ppeals.

¶ 9 ANAL YSI S ¶ 10 Upon refusing to submit to testing for DUI
, defe ndant was issued a noti ce o f s t at u t o ry

summ ar y suspension. The notice informed defe ndant that his driver’ s license would be

su spended beg inning in 46 day s. 625 I L CS 5/11-501.1, 2-118.1 (West 2008). I n this case , defe ndant filed a petition to resc ind his suspension befor e it took eff ect, but the ruling on the petition was not handed down until afte r defe ndant had been issued a citation for driving on a suspende d driver’ s license. ¶ 11 Section 2-118.1 of the I llinois Vehicle Code (Ve hicle Code) sets forth the standards for

a p et i t i on to resc ind. A driver may petition the court within 90 day s of the notice for a hear ing to contest the statutory suspension. 625 I L CS 5/2-118.1(b) (West 2008)

. The court is require d to hold a hear ing within 30 day s of rec eipt o f t h e d ri v er ’s petition or the first
appea ranc e date for the DUI ticket. 625 I L CS 5/2-118.1(b) (West 2 0 08). “[The] hear ing,
reque st, or proce ss shall not stay or delay the statutory summary suspension.” 625 I L CS 5/2- 118.1(b) ( West 2008). ¶ 12 The scope of the hear ing is limit ed. 625 I L CS 5/2-118.1(b)( 1)-( 4) (West 2008). Section 2-118.1 l imits the s cope of a hearing on a petiti on to resc ind to: (1) whether the defe ndant

was place d under arr est for driving under the influence ; (2) whether the arr esting office r had

re as o n able g rounds to believe that the defe ndant was driving under the influence ; (3 ) whether
, afte r being advised that the privileg e to operate a motor vehicle would be suspended if he ref used to submit to blood-alcohol testing, t h e d efe ndant ref used to submit to such a test; and (4) whether
, afte r being so advised, the defe ndant submitt ed to such testing and the
test reve aled a blood-alcohol concentration of 0.08 or gre ater

. People v

. Grabec k
, 2011 I L App (2d) 100599, ¶

13, 962 N.E.2d 620. ¶ 13 Section 2-118.1 also pre scribes the relief that can be g rante d: “Upon the conclusion of the judicial hear ing, the circ uit court shall sustain or resc ind the statutory

summary suspension ***.” 625 I L CS 5/ 2-118.1(b) (West 2008). ¶ 14 The issue at h an d i s o n e o f statutory construction. As such, our revie w is de novo and controlled by cer

tain principles of law. People v. Johnson
, 2011 I L 111817, ¶ 15, 959 N.E.2d 1150. The primary objective of statutory interpre tation is to g i v e ef fe ct t o the i ntent of t he

-3-leg islature. P eo p l e v. W illiams
, 239 I ll. 2d 503, 506, 942 N.E.2d 1257, 1260 (2011). The starting point for any inquiry is the lang uag e of the statute at issue. People v. Garcia
, 241 I ll. 2d 416, 421, 948 N.E.2d 32, 35 (2011). Courts ar e t o g ive eff ect to the intent of the leg islature by adher ing to the plain and ordinary meaning of leg islation. People v. Howard
, 233 I ll. 2d 213, 218, 909 N.E.2d 724, 727-28 (2009). Courts are to c onsider a statute in its entirety wi t h an ey e to the subject it addre sses and appar ent objective in enac ting the leg islation. People v. Davis
, 199 I ll. 2d 130, 135, 766 N.E.2d 641, 644 (2002). Each word is to be g iven a rea sonable meaning and not rende red superf luous. People v. Jack

son , 2011 I L 110615, ¶ 12, 955 N.E.2d 1164. I f t he plain lang uag e revea ls leg islative intent
, t h en no other interpre tative aids should be applied. Peo p l e v. Y o ung , 2011 I L 111886, ¶ 11, 960 N.E.2d 559. ¶ 15 The p l ai n l an gu age o f section 2-118.1 controls our dispositi on. The statute limit s the authority of t he trial cour t t o t wo pos sible dispositi ons–to “sustain or resc ind the s tatutory

s u m m ary suspension.” 625 I L CS 5/2-118.1(b) (West 2008). The trial court order ed t h e suspension resc inded. ¶ 16 The act of resc inding is not simply to terminate. Both common usag e and the operation of the term in leg al proce eding s impute an intention to undo an action so that it never exis ted. The c ommon meaning is defined a s:

“ resci n d * * * 1 : to do awa y with: take away : REMOVE (~ this needle ss outlay ) 2

a : to take back: ANNUL
, CANCEL (re fused to ~ his harsh order ) b : to abrog ate (a
contra ct) by tender ing back or restoring to the opposite party what one has rec eived from him (as in case s of fra ud, duress, mistake, o r m i n o ri ty) 3 : to vacate or make void (as an ac t) by the enac ting or a superior authority : REPEAL (~ a law) (~ a judgme nt) ***.” Webster’ s Third NewI nternational Dictionary 1930 (1986). ¶ 17 The concept o f re s ci s s i o n has developed i n the l aw as a mechanism for the r etroa ctive

era sure of a contr act. B lack’ s L aw Dic tionary define s “Rescission of contr act” : “To abrog ate, annul, avoid, or canc el a contra ct; particula rly
, nullify ing a contra ct by the
act of a par

ty . The rig ht of resc ission is the rig ht to canc el (re scind) a contra ct upon the

occur renc e of cer

tain kinds of defa

ult by the other contra cting party

. To decla re a contra ct

v o i d i n i t s i n ception and to put an end to it as though it never wer e. [C itation.] A ‘re scission’ amounts to the unmaking of a contract , or an undoing of it from the beg inning, and not mere ly a termination, and it may be eff ecte d by mutual ag ree ment of parties, or by one of the parties decla ring resc ission of contra ct without consent of other if a leg ally sufficie nt g round there for ex i s t s, or by applying to courts for a decr ee of

resc ission.” Blac k’s L aw Dic tionary 1306 (6th ed. 1990). ¶ 18 I llinois has adopted the definition provided by Bla ck’s L aw Dictionary

. Horan v. B lo wi tz , 13 I ll. 2d 126, 132, 148 N.E.2d 445, 449 (1958). In cer tain circ umstances, mere ly claiming

a rig ht to resc ission is insufficient to def eat the pr ocedur e for addre ssing contra ct disputes. See Allianz Insurance Co. v. Guidant Corp.
, 373 I l l

. App. 3d 652, 675, 869 N.E.2d 1042, 1062 (2007) (cla im f

or resc ission did not ne g ate duty to c ooperate in decla ratory judgme nt action); Cusamano v. Norrell Health Care, Inc.
, 239 I ll. App. 3d 648, 653, 607 N.E.2d 246, 250 (1992) (cla im for resc ission did not remove question of arbitra bility from arbitrator). I n

-4-addre ssing such proce dural objections, a court is not to presume that a contra ct never exis ted.

See Allianz Insurance Co.
, 373 I ll. App. 3d at 675, 869 N.E.2d at 1062; Cusamano
, 239 I ll. App. 3d at 653, 607 N.E.2d at 250. Nonetheless, “ [w] hen a c ontrac t is resc inded, i t is as if the contra ct never exis ted in the fi rs t p l ac e. ” Y PI 180 N. LaSalle Owner, LLC v. 180 N. LaSalle II, LLC , 403 I ll. App. 3d 1, 5, 933 N.E.2d 860, 863 (2010). ¶ 19 I n rea ching this de cision, we a re a war e of a ppare nt conflict with othe r districts. People v. Focia
, 287 I ll. App. 3d 767, 768, 679 N.E.2d 121, 122 (1997); People v . Ciechanowski
, 379 I ll. App. 3d 506, 510, 884 N.E.2d 714, 718 (2008). Focia
, and arguably Ciechanowski
, indicates that a conviction for driving with a suspended license may s t an d ev en if the suspension is rescinded. ¶ 20 I n Focia
, the defe ndant was char g ed with driving while her license was suspende d. After her statutory summary suspension was re s ci n d ed
, the trial court dismiss ed the char g e for driving while suspended. The Third District found that the resc ission d i d n o t apply
retroa ctively and reverse d. Focia
, 287 I ll. App. 3d at 768, 679 N.E.2d at 123. The opini on of the court rea soned that whether the defe ndant suffe red “the ef fe cts of an improper suspension d ep en d s l arge ly on her own diligenc e.” Focia
, 287 I ll. App. 3d at 769, 679 N.E.2d at 123. I n reve rsing
, Focia noted that the Vehicle Code allows a person char g ed with DUI to obtain a hear ing on her statutory summary suspension befor e the suspension g oes into eff ect. ¶ 21 Focia rea soned that retroa ctive application “would condone the defe ndant’s disreg ard of the law.” Focia
, 287 I ll. App. 3d at 769, 679 N.E.2d at 123. Focia als o fo u n d that the provision of the Vehicle Code which provides that a pending hear ing on a petition to resc ind shall not stay the eff

ect of a suspension implies a g ener al leg islative intent that suspensions should be g iven full eff

ect until they are proven invalid. Focia
, 287 I ll. App. 3d at 769, 679 N.E.2d at 123; 625 I L CS 5/ 2-118.1(b) (West 1992). ¶ 22 The dissent succ inctly posited: “Word s u s ed in a statute are to be g iven their plain, ordinary meaning

. [C itation.] Gi v i n g t h e plain, ordinary meaning to the term ‘re scind,’ I would hold that the circ uit

co urt’s order resc inding the defe ndant’s statutory summary suspension rende red the suspension void and abrog ated from the beg inning, i.e.
, as if it had never been imposed. I would aff

irm the trial cour

t’s order on that basis.” Focia , 287 I ll. App. 3d at 771, 679 N.E.2d at 124 (H oldridg e, J., di ssenting)

. ¶ 23 The dissent’s statement accu ra t el y re s o l v es t h e i s s u e at h an d. Put simply , the plain lang uag e of section 2-118.1 controls our dispositi on. The dissent also briefly addre ssed the policy conce rns that wer e the basis for the opinion of the court, rea soning that g iving eff ect to the suspension does not eff ectuate the g oal of protec ting the public from impaired drivers. After all, how could the g oals of statutory summary suspension be serve d in instances wher e “the suspension should never have taken place .” Focia
, 287 I ll. App. 3d at 771, 679 N.E.2d at 124 (Holdridg e, J., di ssenting)

. ¶ 24 I n contra st to the opinion of the court, the specia l concur renc e in Focia add re s s ed t h e meaning of “to resc ind.” The concur renc e noted that I llinois courts have gi v en “disparate definitions” to the terms “re scind” and “re scission.” Focia
, 287 I ll. App. 3d at 769-70, 679

-5-N.E.2d at 1 2 3 (L y tton, J
., specia lly concur ring ) (citing Smith v. First National Bank of Danville
, 254 I ll. App. 3d 251, 266, 624 N.E.2d 899, 910 (1993); Lempa v. Finke l , 278 I ll. App. 3d 417, 426, 663 N.E.2d 158, 164-65 (1996); Puskar v. Hughes
, 179 I ll. App. 3d 522, 528, 533 N.E.2d 962, 966 (1989); Farmers Automobile Insurance Ass’n v. Pursley
, 130 I ll. App. 2d 980, 985, 267 N.E.2d 734, 738 (1971); Union Electric Co. v. Illinois Commerce Comm’n , 39 I ll. 2d 386, 393, 235 N.E.2d 604, 609 (1968)). ¶ 25 W h i l e t h es e ca s es d o offe r disparate definitions of the t er m , t h ey d o n o t s u gges t vag ueness or ambig uity

. Eac h case rec og nizes that resc ission is an attempt to era se an act or contra ct from its inception. Smith
, 254 I ll. App. 3d at 266, 624 N.E.2d at 910 (“A party who seeks to rescind a c ontrac t must return the entire consideration rece ived under the contra ct

so the other p ar t y m ay b e place d in the same position it was in befor e the contra ct was enter ed into.”); Lempa
, 278 I ll. App. 3d at 426, 663 N.E.2d at 165 (“G ener ally
, a contra ct may be re scinded only

wher e the c ourt is able to place eac h side in the status quo ante , the
status befor e the contra ct.”) ; Puskar
, 179 I ll. App. 3d at 528, 533 N.E.2d at 966 (“Plaintiffs

corr ectly note that inhere nt in the reme dy of resc ission is the return of t h e parties to their
proper prec ontrac t positions. Resci s s i o n i s an equitable doctrine, and a party seeking

resc ission must restore the other party to the status quo exis ting at the time the contra ct was made.” ); Pur

s l ey , 1 3 0 I ll. App. 2d at 985, 267 N.E.2d at 738 (re scission is not mere ly

canc ellation but declar es agree ment void from inception); Union Electric Co. , 39 I ll. 2d at 392, 235 N.E.2d at 608-09 (“ ‘The p o we r t o resc ind a cer tificate is g rea

ter in extent and
scope than the power to alter or modify .’ ” (quoting Black Hawk Motor Transit Co. v. Illinois CommerceComm’n , 398 I ll. 542, 553, 76 N.E.2d 478, 484 (1947)))

. ¶ 26 The First District relied on Focia in Ciechanowski

. People v. Ciechanowski
, 379 I ll. App. 3d 506, 513-15, 884 N.E.2d 714, 720-22 (2008). I n Ciechanowski
, t h e defe ndant was convicted of ag g ravated driving under the influence and sentenc ed to 10 day s of imprisonment and 30 months of probation. The defenda nt was found to have driven unde r the influenc e duringa per iod in which his driving privileg es we re suspe nded for ref usal to submit t o tests from a pr evious DUI (625 I L CS 5/ 11-501(c -1)( 1) (West 2004)). ¶ 27 I n Ciechanowski
, the s econd D UI was issued within a month of the statutory summary suspension taking eff

ect. A month later the court g rante d a petition to rescind the statutory suspension from the first DUI based on a fai l u re t o issue proper war nings befor e offe ring sobriety tests. A cer

tified copy of the abstrac t of the defe ndant’s driving rec ord was admitted into evidenc e along with the trial court order resc inding the defe ndant’s statutory suspension from the first DUI arr est. The parties stipulated to admission of the order of resc ission “solely for the purpose of establishing the DUI as an ag g rava ted DUI and not as a defe nse to driving

wh il e d e f e n d a n t’ s d riving privileg es wer e suspended.” Ciechanowski
, 379 I ll. App. 3d at 510
, 884 N.E.2d at 718. Ciechanowski aff irmed the c onviction. ¶ 28 The focus of C i ec h a n o w s ki wa s n o t o n the require ment of section 2-118.1 that “the circ uit court shall sustain or resc ind the statutory summary suspension.” 625 I L CS 5/2- 118.1(b) (West 2004). I nstead, Ciechanowski asser ted that the broade r context of the Vehicle Code called for a driver to be responsible for any driving wh i l e suspended, even if the statutory suspension was improper

.

-6-¶ 29 Un d er l y i n g C i ec h a n o w s ki was a rec og nition that statutory summary suspension of a

driver’ s license was a civil sanction, no t a criminal punishment. Ciechanowski noted the disti n ct i on betwee n the crime of DUI and a statutory summary suspension. Although a proper ly issued driver’ s license is a proper ty interest which may not be taken awa y without due proce ss, Ciechanowski noted that ade quate pr otection is met by a limited civil he aring which need not take place before the s tatutory suspension. Ciechanowski , 379 I ll. App. 3d
at 511, 8 8 4 N. E

. 2 d at 719. Nonethele ss, Ciechanowski noted that a driver may avoid an improper suspension from ever taking place beca use a court must hold a hear ing within 30 d ay s of a petition to resc ind, while the suspension may not take eff ect until 46 d ay s af

t er notice is g iven. Moreove r, Ciechanowski pointed out that any schedule d hear ing or reque st “ ‘shall not stay or delay the statutory summary suspension.’ ” Ciechanowski
, 379 I ll. App. 3d at 512, 884 N.E.2d at 720 (quoting 625 I L CS 5/2-118.1(b) (West 2004)). Ciechanowski conclude d that this mea

nt the exis tence of an improper suspension “depe nds larg ely on the driver’ s diligenc e.” Ciechanowski , 379 I ll. App. 3d at 512, 884 N.E.2d at 720. ¶ 30 Ciechanowski adopted the rea soning of Focia

. C i ec h a n o w s ki co n t en d ed t h at F o ci a proper ly rea soned “that the statutory scheme in the Vehicle Code implied a leg islative intent that the suspension was to have ful l force and eff ect until it was proven to be invalid.” Ciechanowski
, 379 I ll. App. 3d at 513, 884 N.E.2d at 720 (citing Focia
, 287 I ll. App. 3d at 769, 679 N.E.2d at 123). Ciechanowski asser ted that deviating from the approa ch of Focia would permit a de fenda

nt to delay

filing a petition. ¶ 31 Ciechanowski criticized the dissent in Focia

. First, Ciechanowski rea soned that the 45- day wait is part of a larg er scheme that protec ts due proce ss, as a driver has the opportunity to stop im proper

suspension. Ciechanowski , 379 I ll. App. 3d at 514, 884 N.E.2d at 721. ¶ 32 More signific antly
, in discussing the dissent, Ciechanowski addre ssed the use of the term “to resc ind.” Ciechanowski contende d that the leg islature used the phrase for a specific and limit ed purpose. Ciechanowski rea soned that since a statutory summary suspension perta ins only to the driver’ s license confe rre d by the Secre tary of State, and a driver may separ ately be criminally convicted of DUI
, a resc ission only impacts driving privileg es. Ciechanowski
, 379 I ll. App. 3d at 514, 884 N.E.2d at 721. Ciechanowski continued:
“B eca use this is a function of the Secre tary of State, the definition of the term ‘re scission’ is located in the I llinois Administrative Code, which define s resc ission as ‘to annul or void a suspension, revoc ation, canc ellation or denial.’ 92 I ll. Adm. Code § 1040.100(a)
, amende d at 25 I ll. Reg

. 6402 (ef f. April 26, 2001). This definition desc ri b es t he effec t of the resc ission on a defe ndant’s driving privileg es and driving rec ord. For instance, the

rec ord in this case discloses that afte r defe ndant’s suspension resulting from his Ma rch 3, 2005, DUI

arr est was rescinded, he was issued an amended noti ce of suspension for the suspension applicable here which chang ed his status from a repe at offe nder to a firsttime offende r. Howeve r, this definition of resc ission must be limit ed to that purpose. Ex amination of the proce du re set forth in the Vehicle Code makes clea r that unless a suspension is

resc inded prior to its eff

ective date, the suspension is to take eff ect and rema in in eff

ect for the presc ribed duration or until it is resc inded. See 625 I L CS 5/2-118.1(b), 6-208.1(a )

-7-(West 2004). I ndeed, in construing a statutory scheme
, the court’s g oal is to asce rtain and
g ive eff ect to t h e i n t ent of the leg islature. People v. Perry
, 224 I ll. 2d 312, 323, 864 N.E.2d 196, 204 (2007). As the majority in Focia re co gnized, to apply the resc ission
retroa ctively would be to ignore the time frame established by the leg islature in section 2-118.1(b) of the Vehicle Code. Focia
, 287 I ll. App. 3d at 7 6 9
, 6 79 N.E.2d at 123.” Ciechanowski , 379 I ll. App. 3d at 514-15, 884 N.E.2d at 721-22. ¶ 33 Ciechanowski proce eded to f ind that the statutory summary suspension was voidable , not void ab initio

. Ciechanowski pointed out that the Secre tary of State has author i t y t o enter statutory summary suspensions and that even an improper suspension will take eff ect unless and until a driver acts to annul the suspension. Fr om this, Ciechanowski conclude d that “we
cannot say that an improper suspension is void ab initio .” Ciechanowski
, 379 I ll. App. 3d at 516, 884 N.E.2d at 722. ¶ 34 The holding of Ciechanowski does not g uide our decis i o n fo r s ev er al re as o n s . As a starting point, the issue prese nted in Ciechanowski is distin ct from the case at hand. I n Ciechanowski
, the court was asked to deter mine whether the defe ndant’s criminal conviction for ag g ravated DUI was proper g iven that the suspension for the first DU I wa s re scinded. Ciechanow ski asser

ts that the resc ission mere ly altere d the “status” of the driver for ad m inistrative purposes and not for a criminal conviction. Ciechanowski
, 379 I ll. App. 3 d
at 514-15, 884 N.E.2d at 721-22. Specifica lly
, Ciechanowski indicated that this “status” was rele vant only t o t h e ef

fe ct of the second summary suspension and that this problem was solved by the issuance o f an amende d notice for the second summary suspension. Ciech anowski
, 379 I ll. App. 3d at 514-15, 884 N.E.2d at 721-22. Ciechanowski was not

conce rned with the issue in the instant case

. As Ciechanowski conce rned a criminal char g e, it could descr ibe the resc ission as af fe ct i n g both “driving privileg es and driving rec ord” without addre ssing the eff ect on priv i l eges. Ciechanowski
, 379 I ll. App. 3d at 514, 884 N.E.2d at 721. ¶ 35 M o r e o v e r , the distinction made in Ciechanowski betwee n void ab initio and voidable w a s not mad e in the context of resc ission. Ciechanowski conclude d that the suspension was voidable, but did not analy ze how a citati o n fo r d ri ving while suspended could rest on a

resc inded, or voided, s uspension. For purposes o f re s ci s sion, the voi ding of an ins trument is applied retroa ctively

. Illinois State Bar Ass’n Mutual Insurance Co. v. Coregis Insurance Co. , 355 I ll. App. 3d 156, 165, 821 N.E.2d 706, 713 (2004). ¶ 36 I llinois has addre ssed this distinction in the context of resc ission of insuranc e contr acts. For purposes of resc ission, the distinction betwee n voidable and void ab initio is a matter of whether a par ty can r atify

or ele ct to not void a contra ct: “The differ ence betwee n a contra ct that is void ab initio and o n e t h at is mere ly voidable is that ‘a voidable contra ct can be ratified and enfor ced by the obligor
, althoug h
not by the wrong doer, while the void contra ct cannot be.’ Kedzie & 103rd C u r r en cy Exc hange, Inc. v. Hodge
, 234 I ll. App. 3 d 1017, 1023, 601 N.E.2d 803 (1992), citing Restatement of Contracts § 475, Comment b (1932), rev’d
, Kedzie & 1 0 3 r d Currency Exc hange, Inc. v. Hodge
, 1 5 6 I l l

. 2d 112, 619 N.E.2d 732 (1993); see also Smith v. Hunter
, 171 I ll. App. 30, 36 (1912) (stating wher e ‘a contra ct is void ab initio
, or wher e

-8-it become s void by the t er m s an d co nditions there in expressed and ag ree d to by the parties, no action can be maintained there on by either party ’). I n other words, a contra ct that is void ab initio i s treated as though it never exis ted; neither party can choose to ratify the contra ct by

simply waiving its right to asser t the defe ct. On the other

hand, if

a contra ct is mere ly voidable, a party can either opt to void the contra ct based upon that defe ct or choose, instead, to waive that defe ct and ratify the contra ct despite it.” Coregis Insurance Co. , 355 I ll. App. 3d at 164-65, 821 N.E.2d at 713. ¶ 37 Def

endant did not waive his rig ht to seek rescission. I n contra ct law, a resc ission mus t be soug ht promptly
, but the promptness of a party ’s action to resc ind is define d by the terms of the contra ct, which often incorporate relevant statutory require ments. See Coregis Insurance Co.
, 355 I ll. App. 3d at 165, 821 N.E.2d at 713; American Servic e Insurance Co. v. United Automobile I

nsurance Co. , 409 I ll. App. 3d 27, 35, 947 N.E.2d 382, 390 (2011). For example, a re scission of an insuranc e contr act c an be sought even after the occurr ence of the event trig g ering cover ag e if the resc ission is otherwise timely under the contra ct. See American Servic e Insurance Co.
, 409 I ll. App. 3d at 36, 947 N.E.2d at 390; see also Coregis Insurance Co. , 355 I ll. App. 3d at 170, 821 N.E.2d at 717 (insurer w aited over a y ear afte r lear ning of misrepre sentation befor e see king r escission). ¶ 38 L ikewise, the plain lang uag e of the Vehicle Code establishes the time a driver has to seek

resc ission. Under section 2-118.1, a driver has 90 day s from a notice of suspension to make

a written reque s t t o t h e circ uit court stating “the g rounds upon which the person seeks to have the statutory summary suspension resc inded.” 625 I L CS 5/2-118.1(b) (West 2008). The timeliness of defe ndant’s petition to resc ind is controlled by this plain languag e, and not the

occur renc e of his havingrec eived a citation for suspension. ¶ 39 Nor did defe ndant eng ag e in a collater al attack

. C i ec h a n o w s ki ci t ed Mi tchell , which stands for the principle that an order cannot be collater ally attacke d unless it is void ab initio

. Ciechanowski
, 379 I ll. App. 3d at 516, 884 N.E.2d at 722 (citing In re Marriage of Mitchell
, 181 I ll. 2d 169, 174, 692 N.E.2d 281, 284 (1998))

. In t h e ca s e at hand, the hear ing on the citation for suspension conce rned the eff ect to be g iven to a voided or resc inded suspension, not whether

the suspension should be voided. ¶ 40 The proce eding s in Perry County wer e not a collater al attack. I nstead, defe ndant had the statutory summary sus p en s i o n voided throug h the limit ed g rounds for resc ission under section 2-118.1 in Jackson County and then dire ctly

attacke d the citation for dr iving while suspended in Perry County

. As the summary suspension was resc inded, the citation could not stand. ¶ 41 On appea l, defe ndant also argues that the trial court improperly overr uled his objection
to the introduction of his cer tified driving abstrac t. This court need not addre ss the issue, as defe ndant’s convic tion for driving while suspended is re verse d. ¶ 42 Acc ording ly
, the j udg ment of t he circuit court of Perry County is here by reve rsed, and defe ndant’s convic tion for driving on a suspende d license is her eby vaca ted.

¶ 43 Reverse d.

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