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A recent Illinois Appellate decision could cause undesirable consequences for municipal enforcement of motorists driving on suspended licenses. A common reason for suspension of driving privileges is the summary suspension resulting from an arrest for driving under the influence of alcohol (DUI).  Pursuant to the Illinois Vehicle Code, a statutory summary suspension, which could last for six months to three years, goes into effect 46 days after an individual is served with notice of the suspension.

Due to the fact that a driver’s license is considered a protected property interest, an individual must be given due process, which includes a right to a hearing before commencement of the suspension to challenge its validity. If that defendant does not seek to have a hearing within 45 days, the suspension kicks in, and then that person does not have a valid license to drive a vehicle. Logic would dictate that if that person is arrested and charged with driving on a suspended license, that person should be guilty regardless of the outcome of a later summary suspension hearing because the driver’s license is not valid at the time of arrest. Despite this logic, a recent Fifth District Appellate Court case, People v. Elliott, held that a person charged with Driving While License Suspended (DWLS) would have the DWLS dismissed if the person’s summary suspension is rescinded at a later date. This holding marked a substantial departure from prior cases in the First and Third Districts addressing how these types of cases should be treated.

In Elliott, an individual was charged with DUI.  The defendant timely filed his petition to rescind the summary suspension and a hearing was scheduled, and then continued past 45 days—the date of an automatic suspension.  The summary suspension was rescinded by the Court at the later hearing date, but on Oct. 13, 2009, the defendant was arrested and charged with DWLS.  The defendant was then found guilty of DWLS and appealed on the basis that the summary suspension was rescinded and should be treated by the Court as though it was never in effect.  Surprisingly, the Fifth District Appellate Court agreed that a rescission of a statutory summary suspension should be given retroactive effect back to its date of commencement. As a result, any DWLS charges received by the defendant prior to the date of rescission are null and void and should be treated as if the license were retroactively valid. In reaching this holding, the Fifth District deviated from the holdings of two other Districts that held that a driver should bear the responsibility of driving during the period of a summary suspension even if the suspension is later found to be erroneous. The Courts’ reasoning rested largely on the fact that the driver is given sufficient opportunities to challenge the legitimacy of the suspension in the 45 days before it goes into effect.

The Second District Appellate Court has not addressed this issue so there is no way to say for certain which holding the Court would adopt. Significantly, the Elliott Court’s holding seemingly allows an individual to continue to drive during a period of a summary suspension as long as there is some indication that a rescission of the summary suspension is likely. This holding goes against the goal of the statutory summary suspension law which is to encourage drivers to submit to chemical testing by reducing the period of summary suspension for those that cooperate with testing.

Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski