People v. Luyten

                                             Second Division
                                             December 31, 1996







No. 1-95-4341

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from the
                                        )    Circuit Court of
     Plaintiff-Appellee,                )    Cook County.
                                        )
     v.                                 )
                                        )
JOHANNES W. LUYTEN,                     )    Honorable
                                        )    Francis W. Glowacki,
     Defendant-Appellant.               )    Judge Presiding.

     JUSTICE RAKOWSKI delivered the opinion of the court:
     Defendant Johannes W. Luyten appeals from an order of the
circuit court denying his motion to rescind the statutory summary
suspension of his driver's license.  Defendant contends the court
erred in determining the State can set a hearing date either
within 30 days after receipt of defendant's request for a hearing
or on the first appearance date shown on the traffic ticket.
     On October 24, 1995, defendant was arrested for driving
under the influence of alcohol.  The officer issued defendant a
traffic citation, which listed a court appearance date of
December 1, 1995.  On October 25, 1995, defendant received notice
of the statutory summary suspension, which, pursuant to statute,
was to become effective 46 days after notice of the suspension. 
On October 26, 1995, defendant filed a petition to rescind the
summary suspension and requested a hearing pursuant to section 2-
118.1(b) of the Illinois Vehicle Code (the Code) (625 ILCS 5/2-
118.1(b) (West 1994)).  Defendant did not mail notice of the
filing to the State until November 7, 1995.  The State received
notice on November 9, 1995.
     On December 1, 1995, the appearance date listed on
defendant's traffic citation, defendant appeared in court and
moved to rescind the summary suspension on the ground that he had
not received a rescission hearing within 30 days after his
request.  The circuit court denied defendant's motion to rescind
and later denied defendant's motion to reconsider.
     Defendant claims section 2-118.1(b) of the Code requires a
hearing be held within 30 days after his request.  He argues he
was denied due process of law when the hearing was not held
within 30 days of his request.  The State contends section 2-
118.1(b) of the Code requires a hearing either within 30 days of
defendant's request or on the first appearance date.  The State
maintains due process requirements were met because the hearing
was held on the date listed on defendant's traffic citation.
     Section 2-118.1(b) of the Code provides in part:
               "(b)  Upon the notice of statutory
          summary suspension ***, the person may make a
          written request for a judicial hearing in the
          circuit court of venue.  ***  Within 30 days
          after receipt of the written request or the
          first appearance date on the Uniform Traffic
          Ticket issued *** the hearing shall be
          conducted by the circuit court having
          jurisdiction.  This judicial hearing,
          request, or process shall not stay or delay
          the statutory summary suspension."  625 ILCS
          5/2-118.1(b) (West 1994).
The Illinois Supreme Court has held that section 2-118.1(b) of
the Code creates alternate dates for a hearing on a defendant's
challenge to summary suspension:  (1) on the first court date set
in the traffic citation issued to the motorist; or (2) within 30
days of a defendant's written request for a hearing on his
petition to rescind.  People v. Smith, 172 Ill. 2d 289, 295
(1996); People v. Schaefer, 154 Ill. 2d 250, 253, 257 (1993);
People v. Gerke, 123 Ill. 2d 85, 91 (1988).  However, defendant
cites Schaefer for the proposition that once a motorist files a
proper petition for a hearing, the 30-day period commences and
the motorist is entitled to a hearing within that time if the 30
days lapse before the first appearance date.
     In Schaefer, the supreme court consolidated three cases
(People v. Schaefer, No. 72884; People v. Hill, No. 72946; and
People v. Puckett, No. 72996) involving defendants who had filed
petitions for a judicial hearing to rescind their summary
suspensions.  The issue before the court was when the 30-day
period commences for purposes of a hearing to rescind statutory
summary suspension of a driver's license.  The court held:
          "[T]he 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 this court.  The burden to set
          the court hearing date would then shift to
          the State."  Schaefer, 154 Ill. 2d  at 261.
The court further held that in order to comply with due process,
the rescission hearing pursuant to section 2-118.1(b) must be
held within 30 days unless delay is occasioned by the defendant. 
Schaefer, 154 Ill. 2d  at 262.
     Defendant interprets Schaefer as placing an unconditional
burden on the State to set a hearing date within 30 days after
the defendant has filed a written request for a hearing. 
Defendant claims that once he made a written request for a
hearing, due process required that a hearing be set within 30
days, notwithstanding the first appearance date listed on the
traffic citation.
     We do not interpret Schaefer as eliminating the first-
appearance-date provision set forth in section 2-118.1(b) of the
Code.  The Schaefer court specifically acknowledged the alternate
hearing dates created by section 2-118.1(b) of the Code.  In its
analysis, however, the court did not consider the first-
appearance-date provision because it was simply not at issue in
any of the consolidated appeals.  In defendant Puckett's case,
the petition was filed after the first appearance date.  In
defendant Hill's case, the first appearance date fell within the
30-day period.  In defendant Schaefer's case, the petition was
not properly filed.  For those reasons, we believe, the court
simply stated that in order to comply with due process, the
rescission hearing pursuant to section 2-118.1(b) must be held
within 30 days after receipt of the written request.  Again,
there was no need for the court to address the alternate dates
listed in the traffic citations because those dates had either
already passed or were not at issue.
     Where the language of a statute is clear and unambiguous,
courts must enforce the statute as written without resorting to
supplemental principles of statutory construction.  People v.
Rissley, 165 Ill. 2d 364, 390-91 (1995).  The plain and certain
language of section 2-118.1(b) of the Code provides that a
motorist is entitled to a hearing on a citation to rescind
summary suspension within 30 days after the date of filing the
petition or on the first court date on the traffic citation
issued to him.  The statute uses "or" in the disjunctive.  It is
not ambiguous.  Accordingly, there is no reason to think the
supreme court in Schaefer intended to change sub silentio the
plain meaning of the statute.
     Defendant also relies on People v. Lagowski, 273 Ill. App.
3d 1012 (1995), for the proposition that if the hearing is not
held within 30 days after the motorist requests a hearing, due
process requires rescission of the summary suspension.  The facts
in Lagowski, like those in Schaefer, are inapposite to the
instant case.  In Lagowski, the defendant filed a written
petition to rescind the summary suspension before the first
appearance date, March 5, 1993.  However, the defendant's notice
of motion and proof of service specifically referred to that date
as the date on which the defendant would appear for a hearing on
the petition to rescind the statutory summary suspension.  The
court held that the defendant herself had elected the date of
March 5, 1993, which caused the hearing to be held more than 30
days after the petition was filed.  As the defendant had
abandoned her right to an earlier date, she was not deprived of
due process.  Lagowski, 273 Ill. App. 3d at 1016.  As in
Schaefer, the court's decision focused only on the 30-day period,
rather than the alternate date of the first court appearance.
     Unlike Schaefer and Lagowski, several cases have addressed
the specific issue at bar, namely, whether the State can properly
set a hearing date either within 30 days after receipt of
defendant's request for a hearing or on the first appearance date
shown on the traffic ticket.  In People v. Gerke, 123 Ill. 2d 85
(1988), the supreme court recognized the alternate date provision
of section 2-118.1(b) of the Code.  The court stated that the
first appearance date on the traffic citation must not be less
than 14 days, but within 49 days after the date of arrest,
whenever practicable.  Gerke, 123 Ill. 2d  at 91.  The court
further noted that in most cases the hearing will be held not
later than three days after the suspension is to become effective
and that a three-day delay of a post-suspension hearing is not
long enough to violate due process.  Gerke, 123 Ill. 2d  at 91-92.
     In People v. Webb, 182 Ill. App. 3d 908 (1989), the
defendant was arrested on January 1, 1988, for driving under the
influence of alcohol.  On January 4, 1988, the defendant filed a
petition to rescind the statutory summary suspension of his
driver's license.  The circuit court conducted the hearing on the
defendant's petition on February 5, 1988, the appearance date on
the traffic citation.  The defendant moved to dismiss the
statutory suspension on the basis that the hearing on his
petition was not timely.  The appellate court held:
               "[W]e conclude that defendant was not
          deprived of his due process right to a timely
          hearing when the hearing he requested would
          have taken place on the first appearance date
          specified on the traffic ticket.  Although
          this date fell 31 days after his written
          request for a hearing, it conformed with the
          alternate time provision set forth in the
          statute, and since it was scheduled to take
          place 11 days before the effective date of
          the statutory summary suspension of his
          driving privileges, we conclude that due
          process was not violated."  Webb, 182 Ill.
          App. 3d at 913-14.
     In People v. Gresik, 205 Ill. App. 3d 1079, 1081-82 (1990),
the court relied on both Gerke and Webb to hold that the
defendant was not deprived of due process where the hearing on
his petition to rescind the statutory summary suspension was
heard on the date listed on the traffic ticket, which was more
than 30 days after the defendant filed his written request for a
hearing.
     Finally, in People v. Krasula, 194 Ill. App. 3d 709, 711
(1990), the court concluded that even though the hearing date
fell more than 30 days after the defendant's request, it
conformed with the alternate time provision set forth in section
2-118.1(b) of the Code.  In so holding, the court relied on Gerke
and Webb, stating that "[t]he Webb court noted that the section
2-118.1(b) time frames were not to be viewed as exclusive, but
rather, as legislative alternatives designed to afford proper due
process to a motorist facing deprivation of his driving
privileges."  Krasula, 194 Ill. App. 3d at 711, citing Webb, 182
Ill. App. 3d at 913.
     Defendant's response to these cases is that they were all
overruled by Schaefer.  We disagree.  The Schaefer court framed
the issue to be decided in that case as "when the statutory 30-
day period within which a hearing must be held on a defendant's
petition to rescind the summary suspension of driving privileges
commences to run."  Schaefer, 154 Ill. 2d  at 253.  That issue is
very specific and, as we have previously stated, focuses only on
the 30-day provision.  Moreover, Schaefer cites Gerke for the
proposition that the statute creates two alternate dates for
hearing on a defendant's challenge to summary suspension. 
Schaefer, 154 Ill. 2d  at 253.  The Schaefer court does not even
mention Webb, Gresik, or Krasula.  Simply put, we find no basis
to believe the Schaefer court intended to overrule its 1988
decision in Gerke or the aforementioned appellate court cases,
let alone rewrite the clear and unambiguous language of section
2-118.1(b) of the Code.
     In sum, the hearing on defendant's petition to rescind the
statutory summary suspension was heard on December 1, 1995, eight
days prior to the date his suspension would take effect.  Even
though this hearing date fell more than 30 days after defendant
filed his request to rescind the statutory summary suspension, it
conformed with the alternate date provision set forth in section
2-118.1(b) of the Code, as well as due process requirements. 
Because of our ruling, we need not address the State's contention
that defendant's delay in mailing notice to the State extended
the commencement of the 30-day period.
     Accordingly, we affirm the order of the circuit court
denying defendant's motion to rescind the statutory summary
suspension.
     Affirmed.
     DiVITO, P.J., and McNULTY, J., concur.