No. 3--03--0222

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Cosenza was arrested for driving under the influence onOctober 19, 2002. He was taken to the police station, where heattempted to take a breathalyzer test. No results registered onthe test equipment because Cosenza's breath sample wasinsufficient. When Cosenza did not attempt to give another sample,the officer administering the test deemed that Cosenza had refusedthe test. The Secretary of State's office later notified Cosenzathat his driver's license would be summarily suspended.

On November 14, 2002, Cosenza filed a petition to rescind hissummary suspension. The trial court began a hearing on thepetition on December 2, 2002, but it was not completed on thatdate. The hearing was continued to December 17, 2002. NeitherCosenza's attorney nor the assistant State's Attorney brought tothe court's attention that December 17 was more than 30 days afterCosenza had filed his petition.

At the December 17 hearing, Cosenza moved for summaryjudgment. The motion was denied. At the conclusion of theDecember 17 hearing, Cosenza's petition was denied. Cosenza'smotion to reconsider was also denied.

On appeal, Cosenza argues that the trial court erred indenying his petition to rescind his summary suspension. He arguesthat under section 118.1(b) of the Illinois Vehicle Code, the Statehad the burden to conclude the hearing on the petition within 30days after he filed it.

Because interpretation of a statute is a question of law, ourreview of this issue is de novo. Swank v. Department of Revenue,336 Ill. App. 3d 851, 785 N.E.2d 204 (2003).

Section 2--118.1(b) states that a person whose driver'slicense is subject to summary suspension may submit a writtenrequest to the trial court for a hearing to rescind the suspension.

"Within 30 days after receipt of the written request[,]*** the hearing shall be conducted by the circuit court***. This judicial hearing *** shall not stay or delaythe statutory summary suspension." 625 ILCS 5/2--118.1(b) (West 2002).

In order to comply with due process, the hearing required insection 2--118.1 must be held within the 30 days unless delay iscaused by the petitioner, and failure to do so will requirerecision of the summary suspension. People v. Schaefer, 154 Ill.2d 250, 609 N.E.2d 329 (1993). Once the petition is properly filedand served,

"[t]he burden to set the court hearing date would thenshift to the State. The State is in the best position toknow court schedules, court dates for police officers,and the other matters incident to an orderlyadministration of this legislation." Schaefer, 154 Ill.2d at 261, 609 N.E.2d at 334.

The State argues that the time period for the summarysuspension hearing is analogous to the time period for the speedytrial statute (725 ILCS 5/103--5 (West 2002)). It contends that apetitioner who does not object to a continuance beyond the 30-dayperiod may be charged with the delay. See People v. Turner, 128Ill. 2d 540, 539 N.E.2d 1196 (1989). We disagree.

The State has cited no authority for the proposition thatrules in criminal proceedings, such as the speedy trial statute,are applicable in civil proceedings, such as summary suspensions,and our research has found no such authority. Furthermore, inSchaefer, our supreme court held that it is the State's burden, notthe petitioner's, to set a timely date for hearing the petition torescind the summary suspension. Schaefer, 154 Ill. 2d 250, 609N.E.2d 329. Under Schaefer, we will not require the petitioner toassume the scheduling burden which our supreme court has ruled isthe State's obligation.

In the present case, the 30-day statutory period commenced onNovember 14, 2002, when Cosenza filed his petition; it expired onDecember 14, 2002. The hearing began on December 2, a date within30-days. However, the court continued the matter to December 17,a date beyond the 30-days. The record does not reflect that thedelay "was occasioned by the defendant." Schaefer, 154 Ill. 2d at262. Thus, following the analysis in Schaefer, we conclude thatthe State was responsible for making certain that the matter wasrescheduled within the 30-day period.

The State also claims that because the original hearingcommenced in a timely manner, the statutory requirements are met. Again we must disagree with the State's position. Under the plainlanguage of the statute, the hearing is to be "conducted" withinthe 30-day period (625 ILCS 5/2--118.1(b) (West 2002)). Schaeferstates that the hearing is to be "held" within this time period. 154 Ill. 2d 250, 609 N.E.2d 329. See also People v. Ribar, 336Ill. App. 3d 462, 783 N.E.2d 1098 (2003); People v. Fitterer, 322Ill. App. 3d 820, 751 N.E.2d 174 (2001). Under the statute andunder Schaefer, we cannot say that the hearing in this case was"conducted" or "held" merely because it was commenced.

The legislature's intent in enacting the rescission provisionswas to resolve the matter expeditiously. Rescission proceedingsare to be conducted quickly to ensure that the interests of boththe State and the petitioner are protected. The State's interestis assured by swiftly removing impaired drivers from our roadways. The petitioner's interest is assured by allowing him the promptexercise of both his due process rights and the opportunity toregain his driving privileges. People v. Rodriguez, 339 Ill. App.3d 677, 791 N.E.2d 707 (2003).

Merely beginning the hearing in a timely manner does notfulfill the legislature's intent to resolve the matterexpeditiously. See Rodriguez, 339 Ill. App. 3d 677, 791 N.E.2d707; People v. Moore, 138 Ill. 2d 162, 561 N.E.2d 648 (1990). Wehold that the trial court erred as a matter of law by denyingCosenza's petition to rescind the statutory summary suspension ofhis driver's license.

Because of this ruling, we need not reach the other issueraised by Cosenza in this appeal.

We reverse the judgment of the Kankakee County circuit courtdenying Cosenza's petition for rescission of his statutory summarysuspension.

Reversed.

BARRY, J., and HOLDRIDGE, PJ., concurring.