## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Moreland

, 2011 IL App (2d) 100699

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. BEN NY MORELAND, De fenda nt-Appellee

.

District & N o. Second District Docke t No. 2-10-0699

Filed August 8, 2011

Held (Note : Th is syl lab us

c o nst 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

. ) The trial court properly resc inded the statutory summary suspension of defe ndant’s driver’ s license where he wa s not a ffor ded a hearing within 30 day s afte r he filed his petition to resc ind, despite the State’s argument that the 30-day period did not beg in to run u n til the suspension was confirme d by

the Secr etar

y of State.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 10-DT- 1736; the Hon. Cary

B. Pierc e, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Robert B. Be rlin, S tate’s Attorney
, of Wheaton (L isa Anne Hoffma n, Assistant State’s At t o rn ey , and L awr ence M. Ba uer and Kristin M. Schwind, both of State’s Attorney s Appellate Pr o s ec u tor’s Offic e, of counsel), f

or the People.

Stephen J

. Klein, of Ramsell & Associates, L L C, of Wheaton, for appellee

.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
J ustices Schostok and Hudson conc urre d in the judgme nt and opinion.

OP INION

¶ 1 At issue in this appea l is whether the 30 day s in which a defe ndant is entitled to a hearing

on a petition to resc ind the statutory summary suspension of his driving privileg es beg ins to

run befor e the Secre tary of State has confirme d the suspension. The trial court found that it does. F or the re asons that follow, we aff irm. ¶ 2 The fac ts rele vant to resolving this appea l are as follows. On Saturday
, M ay 1
, 2010, defe ndant was observe d driving err atically

. A s ubsequent Bre athaly zer test confirme d that defe ndant was driving while under the influence of alcohol (DUI ) (see g ener ally 625 I L CS 5/11-501 (West 2008)). As a result, the arr esting office r immediately serve d defe ndant with the office r’s sworn repor t. On that sworn repor

t, d ef en dant was advised that his driving privileg es would be suspended 46 day s afte r the sworn repor t w as g iven to him and that he had a right to a hearing to contest the suspension. The sworn repor t indicated t h at, if defe ndant wished to contest the suspension, he had to file a petition to resc ind the suspension within 90 day s after

the offic er se rved de fenda nt with the sworn re port. ¶ 3 On Tuesday
, M ay 4
, 2010, defe ndant filed a petition to resc ind the suspension of his driving privileg es, g iving notice of the petition to the State. On the first schedule d court date, which was May 21, 2010, defe ndant pointed out to the court that he did not see in the court file or in the Du Pag e Unifi ed C o u rt Sy stem a confirmation of the suspension. The State
agree d. When defe ndant indicated that he was rea dy to proce ed on his petition to resc ind, the
court questioned whether it could when the Secre tary had not confirme d the suspension. That is, whether without a confirmation from the Secre tary , there was a suspens i on to resc ind. After the court continued the matter over defe ndant’s objection and advised defe ndant that the 30 day s in which he was entitled to a hearing on his petiti o n wo u l d n o t b e tolled, the
court rea ssessed the proce dural posture of the case and struck the petition over defe ndant’s objection. ¶ 4 Three day s later, on May 24, 2010, the Secre tary filed with the court the confirmation of

-2-the statutory summary suspens i o n of defe ndant’s driving privileg es. On J une 4, 2010, 31

day s afte r defe ndant filed his petition, defe ndant moved to resc ind the suspension, arguing that he was not a ffor ded a hearing within 30 day s afte r filing his petition. On J une 7, 2010, defe ndant moved to reinstate his petition, and the trial court grante d that motion. The court then reluc tantly grante d defe ndant’s petition to resc ind, noting t hat defe ndant was not aff orded a hearing within 30 day s afte r he filed his petition and that the delay in holding the hearing w as not attributable to him. This timely appea l followed. ¶ 5 At issue in this appeal is whether defe ndant, who wa s not affor ded a he aring within 30 day s afte r filing his petition, is entitled to a resc ission of the statutory summary suspension of his driving privileg es when he petiti oned to resc ind the suspension befor e the Sec reta ry had confirme d the suspension. Be cause this issue conce rns a question of law, our revie w is de novo. People v . Brown , 374 I ll. App. 3d 385, 387 (2007). ¶ 6 Resolving the issue r aised ne cessa rily beg ins with ex amining section 2-118.1(b) of the I llinois Vehicle Code (Code) ( 625 I L CS 5/ 2-118.1(b) (West 2008)), which pr ovides: “Within 90 day s afte r the notice of statutory summary suspension serve d under Section 11-501.1, the person may make a written reque st for a judicial hearing in the circ uit court of venue. The reque st to the circ uit c ourt shall state the grounds upon which the person seeks to have the statutory summary suspension resc inded. Wit hin 30 day s afte r rec eipt of the written reque st or the first appe ara nce date on the Unifor

m Traf fic Ticke t issued pursuant to a violation of Section 11-501, or a simil ar provision of a local ordinanc e, the hearing sha ll be conducte d by the circ uit court havingjurisdiction.” ¶ 7 In interpre ting se ction 2-118.1(b) of the Code, we must ascer tain and g ive ef

fec t to the leg islature’s intent. People v. Bywater
, 223 I ll. 2d 477, 481 (2006). The best indication of the leg islature’s intent is the language u s ed i n the statute, which must be g iven its plain and ordinary meaning

. People v. McClure
, 218 I ll. 2d 375, 382 (2006). Whe n t he statutory languag e is unambiguous, courts mus t construe the s t at u t e as written, without resor ting to other aids of construction. Bywater
, 223 I ll. 2d at 481. Courts m u s t co n s true the statute as

a whole, bearing in mind the subject that the statute addre sses and the leg islature’s appar ent objective in enac ting it. Id

. at 481-82. Neve rtheless, in so doing, a court should not rea d into the sta tu t e ex ceptions, limit ations, or conditions that the leg islature did not provide. McClure , 218 I ll. 2d at 382. ¶ 8 Section 2-118.1(b) of the Code is una mbiguous. Id

. at 388. It pr ovides that a def endant “s hall” be g iven a hearing on his petition to resc ind within 30 day s afte r the petition i s

rec eived. The wor d “shall” convey s that the leg islature intended to impose a mandatory obligation. Id

. at 3 8 2

. T h at obligation is fulfilled when the defe ndant has a hearing on his petition to resc ind within 30 day s afte r it is filed in the circ uit court, with service on the State. S ee B yw ater , 223 I ll. 2d at 486. Her e, defenda nt was not g iven a hearing by J une 3, 20 1 0
, which wa s 3 0 d ay s afte r he filed his petition. Thus, the statutory summary suspension of defe ndant’s driving privileg es must be resc inded. See People v. Schaefe r , 15 4 I l l

. 2d 250, 262 (1993). ¶ 9 Although we deter mine that defe ndant i s en t i t led to the resc ission of the suspension beca use he was not g iven a hearing within 30 day s afte r filing his petition, we agree with the

-3-trial court th at , without a confirmation of the suspension, there is not a suspension for the

trial court to resc ind. See People v. Madden
, 273 I ll. App. 3d 114, 116 (1995) (“A suspension
may not be resc inded until it has been confirme d.”). Howeve r, nowher e in section 2-118.1(b) of the Code does it indicate that the 30-day period beg ins with the Secre tary ’s confirmation. I f we we re t o rea d this into section 2-118.1(b) of the Code, we would violate the rules o f statutory construction that specific ally prohibit us from doing so. Any chang e in the law that would mandate that the 30-day period does not beg in until the Secre tary confirms the suspension must come from the leg islature, not the courts. See Floyd v. Rock ford Park District
, 355 I ll. App. 3d 695, 705 (2005) (“Any chang e in the status of the law must c ome from the leg islature and not the c ourts.”). ¶ 10 That said, we note that cour ts ha ve car ved out an exception to the automatic re scission of the statutory

summary suspension of a de fenda nt’s drivingprivileg es if the de fenda nt is
not g iven a hearing within 30 day s afte r filing a petition to resc ind. Pursu an t t o t h at exception, a defenda

nt is not entitled to a rescission if the defendant caused the h earing to be delayed. See Schaefe r , 154 I ll. 2d at 270; People v. Lagowski
, 273 I ll. App. 3d 1012, 1016 (1995). Her e, defe ndant acte d promptly in challeng ing the suspension. The fac t that the Secre tary confirme d the suspension only three day s after defe ndant’s petiti on was stricke n did not obligate defe ndant to move to reinstate his petition at that time. Requiring defe ndant
to move t o reinstate the petition immediately afte r t h e Secre tary confirme d his suspension would also be rea ding into section 2-118.1(b) conditions that the leg islature did not provide. ¶ 11 The S tate, likeningsection 2-118.1(b) of the Code to the speedy-trial provisions of t he Code of C riminal Procedur e of 1963 (see 725 I L CS 5/103-5 (West 2008)), claims t hat t he 30-day period should be tolled when there is no petition pe nding befor e the trial court, i.e.
, when the petition has been stricken beca use the Secre tary has not confirme d the suspension. Th e S t at e’ s argument is premised on People v. Cosenza
, 215 I ll. 2d 308, 315-16 (2005), wher e our supreme court compar ed the 30-day limit in section 2-118.1(b) to the speedy-trial provisions in the Code of Criminal Procedur e, and People v. O’Malley
, 108 I ll. App. 3d 823, 827 (1982), whe re thecourt observed that “[t] he spee dy -trial ter m only runs when c harg es

are pending ag ainst the defe ndant.” The problem with a ccepting the State’s position is that this court has found, in the spe edy-trial conte x t, that “ [t ]he spe edy trial statute is not tolled by the striking of a charg e with leave to reinstat e an d the charg e must be dismiss ed on motion by defe ndant if more than the amount of time allowed by statute passes and none of the delay is attributable to defe ndant.” People v. Rodgers
, 106 I ll. App. 3d 741, 745 (1982). Her e, defe ndant’s petition clea rly was stricken with leave to reinstate once the Secre tary filed the confirmat ion, and, as noted, none of the delay in holding a hearing on the petit ion was attributable to defe ndant. Thus, this case falls under Rodgers
, and the 30-day period in which defendant was entitled to a hearing on his petition to resc ind was not tolled when the trial
court struc k the petition. ¶ 12 The State also urg es this court to reve rse the trial court’s ruling beca use not doing so will

encour ag e defe ndants to manipulate the proce ss f or resc ission hea

ring s. This is true only if trial courts allow it. That is, it is not incumbent upon a tr i al co u rt t o dismiss or strike a petition if a confirmation from the Secre tary is not on file. Indeed, beca use a defe ndant need
not wait for the confirmation befor e filing his peti t i o n, the court would have no basis to

-4-dismiss or strike it. I f a def en d ant files a petition befor e the Secre tary confirms the

sus p en s i o n , the trial court should simply continue the hearing to a date 30 day s afte r the petition is filed. On that hearing date, if the Secre tary has not confirme d the suspension, the suspension will b e re s cinded per Madden

. Howeve r, if the Secre tary has confirme d the suspension, the defe ndant will rec eive the prompt hearing to which h e is entitled under section 2-118.1(b). ¶ 13 As an aside, we would be remiss if we did not point out that the Secre tary ’s 23-day delay in confirm i n g d efe ndant’s suspension, which confirmation was made only 20 day s afte r defe ndant filed his pe tition, was nowher e nea r as long as in other case s involving a simil ar issue. See People v. Fitterer
, 322 I ll. App. 3d 820, 821-24 (2001) (Secr etar y confirme d the defe ndant’s suspension 72 day s afte r the defe ndant’s arr est and 33 day s afte r the defe ndant filed his petition to resc ind); Madden
, 273 I ll. App. 3d at 114-16 (conf irmation g iven 63 day s af t er t h e defe ndant’s arr est and 36 day s afte r the defe ndant filed his petition to resc ind ). Howeve r, although fac tual differ ence s exis t betwee n this case and Fitterer and Madden
, we deter mine, g iven the languag e of section 2-118.1(b), that the same result is war rante d. Acc ording ly
, we aff

irm the trial court’s order resc inding the statutory summary suspension of def endant’ s driving privilege s. ¶ 14 For

these re asons, the judgment of the c ircuit court of Du Pag e County

is affirme d.

¶ 15 Affir

med.

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