Illinois Winning DUI Law Brief on Naperville Suspension Arrest

POINTS AND AUTHORITIES

PAGE

STANDARD OF REVIEW

THE DE NOVO STANDARD OF REVIEW APPLIES HERE...........................4

People v. Krueger , 175 Ill.2d 60, 675 N.E.2d 604 (1996).......................................4

ARGUMENT

I. THE APPELLATE COURT SHOULD AFFIRM THE TRIAL COURT'S ORDER BECAUSE THE DEFENDANT PROPERLY SHIFTED THE BURDEN TO THE STATE TO PROVIDE A SUMMARY SUSPENSION HEARING, THE STATE FAILED TO PROVIDE THE HEARING WITHIN 30 DAYS, AND THE DEFENDANT CAUSED NO DELAY

People v. Schaffer , 154 Ill.2d 250, 609 N.E.2d 329 (Il. S. Ct.1993)...........................7

A. The Defendant properly complied with the necessary statutory requirements for requesting a statutory summary suspension hearing.

People v. O'Neil , 329 Ill.App.3d 213,

768 N.E.2d 861 (Il. App. 2 nd Dist., 2002) ..............................9

People v. Schaffer , 154 Ill.2d 250, 609 N.E.2d 329 (Il. S. Ct. 1993).....8, 9

625 ILCS 5/2-118.1(b).............................................................8

625 ILCS 5/2-118.1(d).............................................................8

625 ILCS 5/2-118.1(f)...............................................................................8

625 ILCS 5/2-118.1(h).............................................................8

B. Any delay that occurred in providing the Defendant with a summary suspension hearing was not attributable to the Defendant.

In re Summary Suspension of Driver's License of Trainor 156 Ill.App.3d

918 510 N.E.2d 614 (Il. S. Ct. 1987).................................11

People v. Fitterer , 322 Ill.App.3d 820,

751 N.E.2d 174 (Ill. App. 2 nd Dist., 2001) ...............................12, 13

People v. Madden , 273 Ill.App.3d 114,

652 N.E.2d 480 (Ill. App. 3 rd Dist., 1995) .....................9, 10, 13, 14

People v. O'Neil , 329 Ill.App.3d 213,

768 N.E.2d 861 (Il. App. 2 nd Dist., 2002) .............................13

People v. Schaffer , 154 Ill.2d 250, 609 N.E.2d 329 (Il. S. Ct. 1993)......10

625 ILCS 5/2-118.1(b)............................................................13

II. THE APPELLATE COURT SHOULD FOLLOW PRECEDENT, APPLY THE DOCTRINE OF " STARE DECISIS," AND AFFIRM THE TRIAL COURT'S RULING

People v. Fitterer , 322 Ill.App.3d 820,

751 N.E.2d 174 (Ill. App. 2 nd Dist., 2001) .............................................................14

People v. Madden , 273 Ill.App.3d 114,

652 N.E.2d 480 (Ill. App. 3 rd Dist., 1995) .......................................................14, 16

People v. Schaffer , 154 Ill.2d 250,

609 N.E.2d 329 (Il. S. Ct.1993).........................................................14, 15, 16

People v. Williams , 235 Ill.2d 286,

294 N.E.2d 920 N.E.2d 1060 (Ill. S. Ct. 2009)......................................................14

NATURE OF THE CASE

This is a reply to the State's Appeal of a final judgment granting Defendant-Appellee Benny Moreland's (herein referred to as the Defendant) Petition to Rescind Statutory Summary Suspension, which the court granted based on the fact that the Summary Suspension Hearing was not held within 30 days of the Defendant filing his petition and no delay was attributable to the Defendant. (C. 46). The Defendant was arrested on May 1, 2010 for DUI and ticketed for Improper Lane Usage by an Illinois State Trooper. (C. 95). The Defendant subsequently filed his Petition to Rescind Statutory Summary Suspension on May 4, 2010 and served it on the DuPage County State's Attorney by hand on the same date. (C. 9). On the Defendant's first court appearance on May 21, 2010, the Trial Court refused to provide the Defendant with a hearing, over Defendant's objection, because the Defendant's court file was missing a "Confirmation of Summary Suspension." (State's Supplemental Record C. 5 - 6). On June 10, 2010, the Trial Court granted the Defendant's motion to rescind based on the fact that more than 30 days had passed from the filing of the petition (May 4, 2010), the State did not provide the Defendant with a hearing within that time, and the delay was not attributable to the Defendant (C. 46).

The State filed their Notice of Appeal on July 7, 2010. (C. 49). On December 21, 2010, the State filed their Appellate Brief.

ISSUES PRESENTED FOR REVIEW

I. WHETHER THE TRIAL COURT WAS CORRECT WHEN IT RESCINDED THE DEFENDANT'S STATUTORY SUMMARY SUSPENSION WHEN THE STATE FAILED TO PROVIDE THE DEFENDANT WITH A HEARING WITHIN 30 DAYS OF ITS FILING AND THE DEFENDANT DID NOT DELAY THE HEARING

STANDARD OF REVIEW

The issue is whether the Court was correct in granting the Defendant's petition to rescind when the State failed to provide a hearing on the Defendant's petition within 30 days of the date it was filed. This question should be reviewed de novo because the facts are not in dispute, and the issue involved is wholly a question of law. People v. Krueger , 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996). Thus, this appeal should be reviewed under the de novo standard.

STATEMENT OF FACTS

The Defendant, Benny Moreland, was arrested for two counts of Driving Under the Influence of Alcohol and ticketed for Improper Lane Usage on May 1, 2010. (C. 1 - 3). On May 1, 2010, the Defendant was also issued a "Notice of Summary Suspension" by the arresting Illinois State Trooper, Trooper Harris. ( see carbon copy of Defendant's "Notice of Summary Suspension" entitled "Law Enforcement Sworn Report" C. 5; Appendix 1). Trooper Harris set the Defendant's first court date on May 21, 2010, according to the Bail Bond issued to the Defendant on May 1, 2010. (C. 10). Subsequent to the Defendant's arrest and prior to his first court date, the Defendant filed his "Petition to Rescind Statutory Summary Suspension" on May 4, 2010 and served the petition on the DuPage County State's Attorney on the same day. (C. 9; Appendix 2).

On May 21, 2010, the Defendant appeared in court and answered ready to proceed to a Summary Suspension Hearing. (Supplemental Record C. 5 - 6). The Trial Court requested that the parties return on a future date because, on May 21, 2010, the Defendant's court file did not contain a "Confirmation of Summary Suspension" from the Illinois Secretary of State (Supplemental Record C. 5 - 6). The Trial Court also stated that the that the 30 day "clock" would be tolled from May 21, 2010, until the next court date. (Supplemental Record C. 5 - 6). The Defendant objected to the "Trainor" being tolled and answered ready to proceed to a summary suspension hearing. (Supplemental Record C. 5 - 6). The Trial Court subsequently struck the Defendant's petition to rescind (over the Defendant's objection) and the parties were told to return on June 4, 2010 for "Conference and Setting " on the criminal portion of the case. (Supplemental Record C. 6; C. 22 Appendix 3). On May 24, 2010, the "Confirmation of Summary Suspension" was filed with the DuPage County Circuit Court. (C. 23; Appendix 4).

On June 4, 2010, the Defendant made a written motion in open court, stating that, pursuant to the holdings in People v. Schaffer and People v. Madden , the Defendant was entitled to rescission since more than 30 days had elapsed without a hearing. (C. 24). The Trial Court denied the Defendant's motion to rescind because the Defendant's petition to rescind had been stricken. (C. 53). Subsequently, the Defendant requested a hearing date for his Motion to Reconsider the Denial of his Petition to Rescind, which was set for June 24, 2010. On June 7, 2010, the Defendant filed a "Motion to Reinstate the Defendant's Petition to Rescind his Statutory Summary Suspension" with service on the State (C. 40).

When the parties met on June 24, 2010, the Trial Court was presented with two issues: First, whether to allow the Defendant to reinstate his petition to rescind, and second, whether to grant the Defendant's motion to rescind. (C. 54 - C. 74). First, the Trial Court allowed the Defendant to reinstate his petition to rescind the statutory summary suspension. (C. 62). Second, finding that the case law was controlling, the Trial Court granted the Defendant's motion to rescind based on the fact that the State had failed to provide the Defendant with a hearing within 30 days of its filing and that the delay was not attributable to the Defendant. (C. 71 - 72).

ARGUMENT

I. THE APPELLATE COURT SHOULD AFFIRM THE TRIAL COURT'S ORDER BECAUSE THE DEFENDANT PROPERLY SHIFTED THE BURDEN TO THE STATE TO PROVIDE A SUMMARY SUSPENSION HEARING, THE STATE FAILED TO PROVIDE THE HEARING WITHIN 30 DAYS, AND THE DEFENDANT CAUSED NO DELAY

In the case at hand, the Defendant properly filed his petition to rescind with service on the State, appeared at all his court dates, answered ready to proceed to summary suspension hearing, objected to the tolling of the thirty days, and objected to the sua sponte striking of his petition. (Supplemental Record C. 5 - 7). Any delay that occurred in providing the Defendant with a hearing was attributable to either the Court, the State, the Illinois Secretary of State, and/or the arresting trooper; not the Defendant. Therefore, since the Defendant caused no delay in receiving a hearing, the Defendant was entitled to rescission after the State failed to provide a hearing within thirty days of his proper judicial request. People v. Schaffer , 154 Ill.2d 250, 261, 609 N.E.2d 329, 334 (Il. S. Ct. 1993).

A. The Defendant properly complied with the necessary statutory requirements for requesting a statutory summary suspension hearing.

Once a person is arrested for a DUI, a summary suspension is issued if the motorist provides a breathalyzer test over 0.08, refuses the breathalyzer test, or if the motorist's blood and/or urine tests positive for any of the illegal substances listed in the Cannabis Control Act, Use of Intoxicating Compounds Act, Controlled Substances Act, or for any methamphetamine listed in the Methamphetamine Control and Community Protection Act. 625 ILCS 5/11-501.1(d) & (f). If the motorist falls into one of these categories, the arresting officer is required to serve an immediate notice of the statutory summary suspension on the arrestee and submit a sworn report to the Illinois Secretary of State. 625 ILCS 5/11-501.1(d). Upon receipt of the sworn report, "the Secretary of State shall confirm the statutory summary suspension by mailing a notice of the effective date of the suspension to the person and the court of venue." 625 ILCS 5/11-501.1(h). After the arrest, "within 90 days after the notice of statutory summary suspension is served under section 11-501.1 the person may make a written request for a judicial hearing...[emphasis added]," 625 ILCS 5/2-118.1(b). Then, "within 30 days after receipt of the written request...the hearing shall be conducted by the circuit court having jurisdiction." Id.

Since the interaction of 625 ILCS 5/11-501.1(d) and 625 ILCS 5/2-118.1(b) is at issue in the State's Appeal, it is important to analyze how they interact. Although section 625 ILCS 5/11-501.1(d) explains how the driver's license is suspended, the confirmation of the summary suspension (by way of mailing notice to the person and the venue) is not a requirement in order for the defendant to request a judicial hearing. 625 ILCS 5/2-118.1(b). The only requirement to challenge a summary suspension is that the notice of statutory suspension was served on the person pursuant to section 11-501.1. 625 ILCS 5/2-118.1(b). In addition, if the Secretary of State fails to send a confirmation to the motorist and venue, this failure does not toll the 90-day limitation period (in which the motorist has to request a hearing) because 625 ILCS 5/2-118.1(h) does not "indicate any time period within which the Secretary must send confirmation of the suspension." People v. O'Neil , 329 Ill.App.3d 213, 218, 768 N.E.2d 861, 864 (Il. App. 2 nd Dist., 2002) .

Therefore, once the motorist has been served with the statutory summary suspension pursuant to 625 ILCS 5/11-501.1 and the motorist has properly requested a judicial hearing in accordance with 625 ILCS 5/2-118.1, the burden shifts to the State to ensure that a hearing is held in 30 days. People v. Schaffer , 154 Ill.2d 250, 261, 609 N.E.2d 329, 334 (Il. S. Ct. 1993). The burden shifts to the State because the State "is in the best position to know court schedules, court dates for police officers, and the other matters incident to an orderly administration of this legislation." Id.

In the instant case, the Defendant complied with all the necessary requirements for seeking a judicial review on his summary suspension. First, the Defendant was personally served with the "Law Enforcement Sworn Report" on May 1, 2010. (C. 5; Appendix 1). Second, the Defendant filed a "Petition to Rescind" within 90 days after service of the sworn report, stating forth the grounds for which he was challenging the summary suspension on May 4, 2010. (C. 9; Appendix 2). Thus, the Defendant had properly requested a judicial hearing pursuant to Illinois law and the burden shifted to the State to ensure that the Defendant was provided a hearing within 30 days of his judicial request. Schaffer , 154 Ill.2d at 261.

B. Any delay that occurred in providing the Defendant with a summary suspension hearing was not attributable to the Defendant.

After a motorist files his request for a judicial hearing, the State must ensure that the defendant is provided a judicial hearing within 30 days of the request. Schaffer , 154 Ill.2d at 261. However, the thirty days will be tolled if "the delay is occasioned by the defendant." [emphasis added] Id. Conversely, if the delay is caused by any other entity or party besides the defendant, then the thirty days continues to run. Id. If the Illinois Secretary of State delays the issuance of a confirmation of the suspension, then the delay is not attributable to the Defendant. People v. Madden , 273 Ill.App.3d 114, 115, 652 N.E.2d 480, 482 (Ill. App. 3 rd Dist., 1995) . Therefore, as long as the defendant properly requests a judicial review and occasioned no other delay, the lack of confirmation from the Illinois Secretary of State does not toll the thirty days that the State has to provide the defendant with judicial hearing. Madden , 273 Ill.App.3d at 115.

The facts of the instant case are closely analogous to People v. Madden . In Madden , the defendant was served with the sworn report after a DUI arrest on September 3, 1994. Id. at 114. On September 30 (within 90 days), the defendant filed a petition to rescind the summary suspension, with service on the State, and a hearing was set for October 20, 1994. Id. at 114 - 115. When the parties appeared at the hearing, both parties agreed that the defendant's abstract did not indicate that a statutory summary suspension was pending. Id. at 115. The trial court dismissed the petition with leave to reinstate because the cause was not ripe. Id. On November 5, 1994, the defendant received a copy of the confirmation from the Illinois Secretary of State and moved to rescind his statutory summary suspension on November 18, 1994. Id. The court granted the defendant's petition to rescind because 30 days had passed without a hearing since the request was made on September 30. Id.

The crux of the Madden opinion was that any delay that resulted from the lack of a confirmation from Illinois Secretary of State was caused by the State; not the defendant. Id. Even though a county's prosecutors may technically be a separate governmental entity than the Illinois Secretary of State, the court still stated, "Here, the Secretary of State did not confirm the suspension within 30 days of the defendant's filing of his petition to rescind...The delay in holding the hearing on the petition to rescind is attributable to the State." [emphasis added] Id. at 116.

Much of the chronology that took place in Madden also took place in the case at hand. The Defendant filed his petition to rescind on May 4, 2010 and appeared in court on his bond return date on May 21, 2010. (C. 4; C. 10; Supplemental Record C. 3; Appendix 2). On May 21, 2010, the Defendant answered ready to proceed to a summary suspension hearing. (Supplemental Record C. 6). Since there was no confirmation in the Court file or in "DUCS," the Trial Court refused to allow the Defendant to proceed to a hearing and struck his petition to rescind. (Supplemental Record C. 6). When the Trial Court continued the case for "Conference and Setting," it indicated that the "Trainor" would be tolled. Trainor , 156 Ill.App.3d 918; Supplemental Record C. 6). The Defendant objected to the tolling if "it's no fault of the defendant." (Supplemental Record C. 6). The Trial Court subsequently struck the Defendant's (Petitioner's) petition to rescind, sua sponte, over the Defendant's objection. (Supplemental Record C. 6; C. 22; Appendix 3).

On May 21, 2010, the Defendant did not cause any delay in receiving a hearing on his summary suspension petition. First, he answered ready to proceed to a summary suspension hearing. (Supplemental Record C. 6). Second, he objected to any tolling of the thirty days. (Supplemental Record C. 6). Third, he objected to having his petition stricken by the Trial Court. (Supplemental Record C. 6; Appendix 3). The Defendant did everything he could to properly proceed to hearing on May 21, 2010 and the Trial Court refused to allow him to proceed. (Supplemental Record C. 5 - 6).

After the Defendant's court date of May 21, 2010, a "Confirmation of the Summary Suspension" was filed with the DuPage County Clerk on May 24, 2010. (C. 23; Appendix 4). On June 4, 2010, the parties appeared in court and the Defendant filed a motion to rescind based on the lack of judicial hearing within thirty days of the filing of the request. (C. 24). Similar to Madden , the confirmation arrived after the Defendant requested a hearing and the State never provided the Defendant with a judicial hearing within thirty days. The lack of confirmation from Illinois Secretary of State was not a delay caused by the Defendant and the Trial Court correctly rescinded the summary suspension. (C. 74; C.46). Like Madden, the Trial Court correctly held that, "there was no delay that can be attributable to the defendant. That's it. I don't think it matters whether it's the State or it's the Court of if it's the trooper. It isn't your [defendant's] fault, so it doesn't matter." (C. 74).

In addition to Madden , the case of People v. Fitterer (cited by the Trial Court in its ruling (C. 68)) supports the Defendant's position as well. 322 Ill.App.3d 820, 751 N.E.2d 174 (Ill. App. 2 nd Dist., 2001) . In Fitterer , the arresting officer served a notice of summary suspension on the defendant after a DUI arrest, even though the chemical results had not been tested. Id. The next month, the defendant filed a petition to rescind the statutory summary suspension, which shifted the burden to the State to provide a hearing within 30 days. Fitterer , 322 Ill.App.3d at 822. The State set the hearing nine days after the defendant petitioned for a hearing. Id. When the parties appeared for the hearing, the trial court found that record showed no pending suspension and struck the Defendant's petition with leave to reinstate. Id. Eleven days after the trial court struck the petition, the officer served a new notice of summary suspension on the defendant since the defendant's blood-alcohol level came back as 0.204. Id. The defendant subsequently reinstated his petition and the trial court granted the petition to rescind because the State had not provided the defendant with a hearing within thirty days of the filing of the original petition. Id. at 824. The trial court held that the thirty day period began to run after the defendant filed his original petition to rescind because that was when he was first served with the petition to rescind, regardless of whether the original sworn report was mistakenly served on the defendant. Id.

The ruling in Fitterer upheld the rulings in Schaffer and Madden that once a motorist is served with the sworn report and the motorist properly files a petition to rescind, the burden shifts to the State to provide a hearing within thirty days. Id. As long as the delay is not occasioned by the defendant, the thirty day period continues to run. Id. Even though the Trial Court in this case and the courts in Madden and Fitterer struck the defendants' petitions for lack of a confirmation, the existence of a confirmation is not a prerequisite for a motorist to request a summary suspension hearing according to 625 ILCS 5/2-118.1(b). Fitterer , 322 Ill.App.3d at 822; Madden , 273 Ill.App.3d at 115; O'Neil , 329 Ill.App.3d at 218. The only prerequisite is that the motorist is served with a notice of the summary suspension and the motorist makes a request for a judicial hearing. 625 ILCS 5/2-118.1(b).

Thus, in the Defendant's case, since he properly filed his petition to rescind and the State did not provide him with a hearing within thirty days, he was entitled to rescission. The fact that the Illinois Secretary of State had not sent the confirmation of the suspension to the Defendant and to the venue before the Defendant's hearing was not Defendant's fault. Madden , 273 Ill.App.3d at 115. Furthermore, the State's Appellate Brief fails to point to any conduct of the Defendant that caused a delay in receiving a hearing on his petition to rescind. (State's Appellate Brief pp. 1 - 12). Accordingly, the Trial Court's granting of the Defendant's petition to rescind should be upheld as consistent with the controlling case law.

II. THE APPELLATE COURT SHOULD FOLLOW PRECEDENT, APPLY THE DOCTRINE OF " STARE DECISIS," AND AFFIRM THE TRIAL COURT'S RULING

The doctrine of stare decisis "expresses the policy of the courts to stand by precedents and not disturb settled points." People v. Williams , 235 Ill.2d 286, 294, 920 N.E.2d 920 N.E.2d 1060, 1065 (Ill. S. Ct. 2009) (citing People v. Colon, 225 Ill.2d 125, 866 N.E.2d 2007 (2007) . As explained previously, the cases of People v. Schaffer, People v. Madden , and People v. Fitterer all support the Trial Court's position that the Defendant was entitled to a rescission based on the State's inability to provide him with a hearing within thirty days of filing his petition for a judicial hearing. (C. 74). By its brief, the State argues various other reasons as to why the Defendant is not entitled to a rescission, but fails to provide any case law or authority that overrules or distinguishes Schaffer , Madden , or Fitterer .

For example, the State states that the "goal of statutory summary suspensions is to protect people from traveling on Illinois highways from dangerous drivers." (State's Appellate Brief, p. 5). However, the Illinois Supreme Court was knowledgeable of this goal in Schaffer when it still found in the defendant's favor where the State did not provide him with a hearing within thirty days. 154 Ill.2d at 255 ("The Illinois legislature has determined that drivers impaired by alcohol or drugs pose a threat to 'public safety and welfare,'"). The State also indicates that the 30 day period should have been tolled because the petition was stricken on May 21, 2010, but provides no authority or case law to support this claim either. (State's Appellate Brief, pp. 6 - 7). In both Madden and Fitterer , the thirty days still continued to run despite the defendants' petitions being stricken. Madden , 273 Ill.App.3d at 115; Fitterer , 322 Ill.App.3d at 824.

Furthermore, the State argues that the Defendant was not entitled to a rescission because his "due process rights" were not violated and uses this claim to differentiate the Defendant's case from Madden and Fitterer . (State's Appellate Brief pp. 11 - 12). Therefore, the State is suggesting that any defendant would not be entitled to hearing within thirty days if it did not violate his due process rights. However, whether or not a due process violation occurred does not change the fact that the Defendant was entitled to a hearing within thirty days after filing his petition and he caused no delay. Schaffer , 154 Ill.2d at 261.

The court in Schaffer states:

We conclude that the 30-day statutory period commences on the date of the filing

of a proper petition to rescind in the circuit court of venue, with service on the State, in accordance with the rules of the court. The burden to set the court hearing date would then shift to the State. The State is in the best position to know court schedules, court dates for police officers, and the other matters incident to an orderly administration of this legislation. Schaffer , 154 Ill.2d at 261.

Therefore, the Defendant is not required to prove a due process violation as the State suggests; all that was necessary is that the Defendant did not cause the delay. Id.

In the instant case, the Defendant was present in court on his bond return date, answered ready to proceed to a summary suspension hearing, objected to the thirty days tolling, and objected to the striking of his petition. (Supplemental Record C. 5 - 7). The fact that the confirmation was sent after the Defendant's court date was not the Defendant's fault and no delay can be attributed to him because of the Secretary's State inability to issue a confirmation before the Defendant's first court date. Madden , 273 Ill.App.3d at 115. Accordingly, this Court should affirm the Trial Court's ruling that the Defendant was entitled to rescission because the State did not provide him with a hearing within thirty days of filing his petition to rescind.

CONCLUSION

WHEREFORE, the Defendant prays that this Honorable Court affirm the order entered by the Trial Court granting the Defendant's petition to rescind his summary suspension.

APPENDIX

ITEM EXHIBIT

Law Enforcement Sworn Report (5-1-10) 1 Petition to Rescind (5-4-10) 2

Order Striking Defendant's Petition to Rescind (5-21-10) 3 Confirmation of Summary Suspension (5-24-10) 4