 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Bywater6/1/2005
Defendant, Brian Ray Bywater, was charged with driving without proof of insurance (625 ILCS 5/3--707(a) (West 2002)), improper lane usage (625 ILCS 5/11--709(a) (West 2002)), and two counts of driving while under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 2002)). He petitioned to rescind the statutory summary suspension of his driving privileges, serving notice of the petition on the State by mail. On the date the petition was set for hearing, defendant moved to dismiss the summary suspension because he was not given a hearing within 30 days after filing his petition with the clerk of the circuit court (see 625 ILCS 5/2--118.1(b) (West 2002)). The trial court denied the motion to dismiss, finding, pursuant to a circuit court rule, that the 30-day period during which a hearing must be held commenced when defendant appeared in open court to request a hearing, not when he filed his petition with the clerk of the circuit court. The trial court also ruled that, for purposes of calculating the applicable time period, service of the petition on the State was not effective until four days after defendant mailed notice of the petition to the State. Ultimately, the trial court denied defendant's petition to rescind. On appeal, defendant challenges the denial of his motion to dismiss, claiming that the circuit court rule upon which the trial court relied is invalid because it conflicts with section 2--118.1(b) of the Illinois Vehicle Code (Code) (625 ILCS 5/2--118.1(b) (West 2002)) and places on a defendant who wishes to rescind his suspension the additional burden of appearing in open court to request a hearing. Defendant then contends that, assuming the circuit court rule is inapplicable, the trial court should have granted his motion to dismiss the summary suspension because he was not given a hearing within 30 days after the petition was filed with the clerk of the circuit court. To this end, defendant argues that the time between the filing date of the petition and the date on which the State was notified of it did not extend the 30 days in which he was entitled to a hearing. We affirm.
I. BACKGROUND
On June 29, 2002, defendant was arrested for DUI. As a result, he received notice that his driving privileges would be summarily suspended beginning August 14, 2002. On July 11, 2002, defendant filed with the clerk of the circuit court a written petition to rescind the summary suspension, serving notice of the petition on the State by mail pursuant to Supreme Court Rule 12(b)(3) (145 Ill. 2d R. 12(b)(3)). On July 18, 2002, the State moved to continue the case, and the trial court granted the motion, setting August 14, 2002, as the next court date. The trial court's order provided that service of the petition on the State was effective July 15, 2002. This finding was based on Supreme Court Rule 12(c) (145 Ill. 2d R. 12(c)), which provides that service by mail is complete four days after mailing. As such, the date set for the hearing was within 30 days of the effective date of notice upon the State.
On August 14, 2002, defendant moved to dismiss the summary suspension, arguing that the 30 days in which a hearing on his petition must be held was not tolled by his mailing notice of the petition to the State. After hearing arguments from both parties, the trial court sua sponte noted that Sixteenth Judicial Circuit Court Rule 34.05(b) (16th Jud. Cir. Ct. R. 34.05(b) (eff. October 5, 1988)) provides that a request for a hearing on a petition to rescind a summary suspension shall be made only in open court.
In response, defendant's attorney claimed that circuit court rule 34.05(b) was no longer valid because it conflicted with caselaw and section 2-
Page 1 2 3 4 5 6 Illinois DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|