June 5, 2001

PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

Defendant, Gary S. Fitterer, was arrested and charged with,inter alia, driving under the influence of alcohol (DUI) (625 ILCS5/11--501(a)(2) (West 1998)). In addition, under section 11--501.1of the Illinois Vehicle Code (the Code) (625 ILCS 5/11--501.1 (West1998)), he was given notice that his driving privileges would besummarily suspended. He petitioned to rescind the summarysuspension. See 625 ILCS 5/2--118.1(b) (West 1998). Ultimately,the trial court granted that petition, ruling that defendant hadnot received a timely hearing. See 625 ILCS 5/2--118.1(b) (West1998). The State appeals, arguing that the court granted thepetition before the deadline for a hearing had passed. We affirm.

On August 14, 1999, defendant was arrested. He submitted toa chemical test, but the arresting officer did not immediatelyobtain the results. Nevertheless, the officer gave defendant anotice of summary suspension. See 625 ILCS 5/11--501.1(f) (West1998). The notice stated that the suspension would "take effect onthe 46th day following issuance of this notice." See 625 ILCS5/11--501.1(g) (West 1998). However, because the officer had notobtained the results of the chemical test, the notice did not statethe basis for the suspension. For the same reason, the officer didnot submit to the trial court or the Secretary of State (Secretary)a sworn report of the results of the test. See 625 ILCS 5/11--501.1(d) (West 1998).

On September 22, 1999, defendant petitioned to rescind thesuspension. On September 28, the State moved to schedule a timelyhearing on the petition. On October 1, at a hearing on the State'smotion, the trial court found that the record indicated no pendingsuspension. Therefore, the court struck defendant's petition butgranted him leave to reinstate it.

On October 12, 1999, the arresting officer served on defendanta new notice of summary suspension. That notice stated thatdefendant's chemical test had revealed an alcohol concentration of0.204. The notice stated further that the suspension would "takeeffect on the 46th day following issuance of this notice." Theofficer submitted a sworn report to the trial court and theSecretary. On October 25, the Secretary confirmed that thesuspension would take effect on November 27, the forty-sixth dayafter October 12. See 625 ILCS 5/11--501.1(h) (West 1998).

On November 4, 1999, defendant reinstated his petition torescind. On November 30, the trial court granted the petition. Relying on People v. Madden, 273 Ill. App. 3d 114 (1995), the courtconcluded that defendant had been entitled to a hearing by October22, the thirtieth day after the petition's original filing date. The court denied the State's motion for reconsideration, and theState timely appeals.

When a defendant is arrested for DUI, the arresting officermay request that she or he submit to a chemical test. 625 ILCS5/11--501.1(a) (West 1998). If the defendant refuses testing orthe test reveals an alcohol concentration of 0.08 or more, theofficer must give the defendant a notice of summary suspension. 625 ILCS 5/11--501.1(d), (f) (West 1998). The officer must alsosubmit, to the Secretary and the circuit court of venue, a swornreport detailing the results of the test or the defendant's refusalto take it. 625 ILCS 5/11--501.1(d) (West 1998). Upon receivingthat report, the Secretary must confirm the effective date of thesuspension. 625 ILCS 5/11--501.1(h) (West 1998).

Within 90 days after being served with a notice of summarysuspension, a defendant may petition the trial court to rescind thesuspension. 625 ILCS 5/2--118.1(b) (West 1998). If the defendantfiles such a petition, the State must ensure that the petition isheard within 30 days. 625 ILCS 5/2--118.1(b) (West 1998); Peoplev. Schaefer, 154 Ill. 2d 250, 261 (1993). Indeed, " 'to complywith due process requirements, the hearing *** must be held withinthe 30 days unless delay is occasioned by the defendant, andfailure to do so will require rescission of the suspension.'(Emphasis added.)" Schaefer, 154 Ill. 2d at 262, quoting In reSummary Suspension of Driver's License of Trainor, 156 Ill. App. 3d918, 923 (1987); see U.S. Const., amend. XIV.

Here, the State argues that the 30-day period began no earlierthan November 4, 1999, when defendant reinstated his petition. Therefore, the State concludes, the trial court granted thepetition before the period had expired. Defendant maintains thatthe period began on September 22, when he originally filed hispetition. Because this issue involves statutory construction, ourreview is de novo. See Village of Mundelein v. Franco, 317 Ill.App. 3d 512, 517 (2000).

As the trial court did, we find Madden instructive. InMadden, the defendant was arrested and served with a notice ofsummary suspension on September 3, 1994. On September 30, he fileda petition to rescind. On October 20, the trial court found thatno suspension was pending and dismissed the petition with leave toreinstate. On November 5, the Secretary confirmed the suspension. On November 18, the defendant reinstated his petition and arguedthat 30 days had passed since his original filing. The trial courtdenied the petition, and the defendant appealed.

The Appellate Court, Third District, reversed, concluding thatthe defendant had not received a timely hearing:

"A suspension may not be rescinded until it has beenconfirmed. Here, the Secretary did not confirm the suspensionwithin 30 days of the defendant's filing of his petition torescind. Had notice of the confirmation of suspension beensent to the court in a more seasonable manner, *** a timelyhearing would have been held. The delay in holding thehearing on the petition to rescind is attributable to theState. Therefore, the defendant's summary suspension must berescinded." Madden, 273 Ill. App. 3d at 116.

The State contends that Madden is distinguishable because heredefendant received two notices of summary suspension, the first ofwhich was invalid. According to the State, after the arrestingofficer issued the August 14 notice, he essentially abandoned it. He did not submit the sworn report to the trial court or theSecretary, and thus the Secretary never confirmed the suspension. The State concludes that the August 14 notice was a "nullity" thatdid not begin the suspension procedure. According to the State,only the October 12 notice was effective, and only defendant'sreinstated petition could have started the 30-day period.

The State misunderstands the protocol for summary suspensions. Under section 11--501.1(g) of the Code (625 ILCS 5/11--501.1(g)(West 1998)), "a summary suspension starts 46 days after theofficer serves the motorist with notice that the motorist's licenseis to be suspended." People v. Eidel, 319 Ill. App. 3d 496, 503(2001). Furthermore, the provision is "self-executing." Eidel,319 Ill. App. 3d at 503. Thus, regardless whether the arrestingofficer submits the sworn report or the Secretary confirms thesuspension, the statute "ties the 46-day waiting period only to thearresting officer's issuance of the original on-the-scene notice." Eidel, 319 Ill. App. 3d at 503.

On August 14, defendant received a notice of summarysuspension. The notice stated that the suspension would takeeffect in 46 days, or on September 29. The arresting officer didnot proceed on that notice, likely because he realized that heshould not have issued it before obtaining the results ofdefendant's chemical test. Nevertheless, when the officer issuedthe notice, he effectively began the suspension procedure. Indeed,the October 12 notice was the invalid one, insofar as it purportedto provide advance notice of a suspension that had already occurredby operation of law.

The result is that Madden controls. After he received thevalid August 14 notice, defendant promptly filed his petition torescind. The 30-day period began, entitling defendant to a hearingby October 22. No such hearing occurred, however, because therecord did not timely reflect a pending suspension. The delay wasattributable to the arresting officer, not the Secretary, but thecrucial point is that it was not occasioned by defendant. Therefore, in accordance with " 'due process requirements,' " thetrial court properly rescinded defendant's summary suspension. Schaefer, 154 Ill. 2d at 262, quoting Trainor, 156 Ill. App. 3d at923.

For these reasons, the judgment of the circuit court of KaneCounty is affirmed.

Affirmed.

BOWMAN and O'MALLEY, JJ., concur.